The Wall Street Journal Law Blog points us to a typical deposition transcript out of Cleveland about a copy machine:

Plaintiffs’ lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Deponent’s Lawyer: Objection.

PL: Any photocopying machine?

Deponent: When you say “photocopying machine,” what do you mean?

PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

D: No. I want to make sure that I answer your question correctly.

. . .

D: When you say “photocopying machine,” what do you mean?

PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

D: I just want to make sure I answer your question correctly.

PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

D: I just want to make sure I answer your question correctly.

DL: There’s different types of photocopiers, Dave.

It goes on and on. Every lawyer who has ever taken a deposition has seen this story before. Depending on how active their law practice is, how many cases they have in suit, and the types of cases, they might have seen this story dozens or hundreds of times. I see it once every month or so.

Probably the most famous example of deposition rope-a-dope was Bill Clinton’s "it depends upon what the meaning of the word ‘is’ is."

The meaning of the word "is"? 

In all fairness to Bill, different interpretations of "is" would have indeed resulted in different answers. He had quite truthfully stated at a press conference that there "is" nothing going on between him and Monica Lewinsky. Left unspoken, at least in Bill’s mind, was if anything "was" going on or "had" gone on. If you interpreted "is" to only mean the present tense, then, no, nothing was going on with Monica at that time. If you interpreted "is" to mean all tenses, then, well, it’s a bit more complicated.

We don’t ask for these sorts of persnickety qualifications in normal conversation, but in normal conversation we also leave a lot of ambiguities open and create a lot of confusion. (Some say 90% of conversation is gibberish.) We also rarely have a running transcript that will later be used against us. 

In depositions, though, in many circumstances it is appropriate for a witness to stop the questioning and ask what, exactly, a particular question means. I encourage my clients and the witnesses and defendants I depose to speak up if they are not 100% sure about the meaning of the question. 

Consider what you would say if I asked you if you had "called" someone recently. Would your answer include just phone calls that you initiated? How about phone calls that they initiated? What about e-mails? Skype? Twitter? Plenty of people rarely use the phone at all, but that doesn’t mean they don’t "call" someone. Any sort of communication could, in a colloquial sense, be referred to as a "call," but that’s not necessarily how everyone interprets the meaning of "called" in the middle of a deposition.

The distinction between a fair clarification and playing games lies in the nature of the clarifications sought. In the above example from Ohio, there’s no legitimate reason for raising the distinctions between various possible "photocopying machines." Sure, some photocopying machines can send faxes, and some can scan records, but it seems that all anyone cared about was if the machine would make copies of documents, which it would.

There’s no secret tactic lawyers can use to get around deposition rope-a-dope, but there is one sold strategy: be persistent. It’s childish the first time it happens. Then it’s tiresome the fifth time it happens.

The tenth time? Then it’s a real problem for the clever witness. A defendant who plays cutesy in front of a jury can expect to walk out with a judgment hanging over their head; defendants know that, so once you get to trial, everyone suddenly understands what "photocopying machines." The same questions get a simple, straightforward answer.

Ah, yes, but there’s that pesky deposition transcript. If a defendant wastes half of my day playing cute with what words like "photocopying machine" or "record" or "contract" means, then I’ll happily spend a few minutes at trial asking them those same questions, listening patiently to their newly-found understanding of the English language, and then read back their own deposition to them and ask them what about "photocopying machine" changed between then and now.

Rope-a-dope works both ways.

  • When faced with such a witness, I say “What is your definition of photocopying machine?”

  • Sometimes that works for me. Sometimes I get an obstructionist lawyer interrupt with, “you’re the one asking the questions.” Then, the obstructionist witness, having been coached by their attorney, says, “you are the one asking the questions here, why don’t you tell me what you mean by it?” And on and on…

  • Eric T.

    One of my favorite paths to travel down after I let the witness hang himself with crap is this:
    Is English your native language?