May the Record Reflect
May the Record Reflect
69. Keep Calm and Depose On, with Whitney Untiedt
Depositions can be a minefield—and not just because of the facts. In this episode of May the Record Reflect, trial attorney Whitney Untiedt returns to share her expert strategies for navigating the disruptive behaviors of difficult counsel and witnesses. From talkers and interrupters to charmers and egomaniacs, Whitney breaks down the types of jerks you’ll encounter and how to stay focused, professional, and in control. Whether you’re taking or defending a deposition, this episode offers practical tools, real-world stories, and a reminder that your attitude is your greatest ally.
Topics
4:52 Obstreperous behaviors
9:45 When the jerk is the witness
12:30 Strategies for handling witnesses
16:28 Preparing for opposing counsel
18:27 In-the-moment responses
23:16 Socialized for niceness
27:29 Supporting your client
31:45 What not to do
37:39 Rules about lawyer conduct
43:53 Remote versus in-person depositions
52:51 Why do lawyers act like jerks
57:57 A war story
1:01:01 Florida programs
1:07:01 Signoff questions
Quote
“The worst jerks are the ones that kill you with kindness than the ones who try to come at you with a butcher knife.” Whitney Untiedt
Resources
Whitney Untiedt (bio)
Deposition Skills: Florida (program)
Jayme Cassidy (bio)
Building Trial Skills: Florida (program)
On today's episode of May the Record Reflect.
Whitney Untiedt:But there is also in witnesses who are behaving badly in deposition. There's the non-talker, there's the witness who is just got their hackles up so high that they just will not answer any question directly. You could ask them what their name is and they're going to just shut down and say well, what do you mean by my name? Right, you know I'm that is certainly hyperbolic. I've never had it that bad in a deposition. But I certainly have witnesses that are just so intent on being uncooperative that they are unwilling to answer the most basic question and that can be the most difficult to deal with because you're like, come on, man, I just asked you for your name or your job title or where you work or what you do, and you won't answer a question. And I know that the lawyer has not told you to do this.
Marsi Mangan:That was Whitney Untied, and this is May the Record Reflect. Hello and welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, marci Mangan, and in today's episode we're talking about how to deal with jerks in your depositions. I'm joined by Whitney Untied. She is the trial chair at the Miami law firm of Untied Dabdoob, a NADA program director and a member of our board of trustees.
Marsi Mangan:In her trial practice, whitney represents victims of medical malpractice and complex injuries and families mourning the loss of a loved one throughout the state of Florida and across the country. In recent years, her trial victories have been recognized in the top 50 wrongful death verdicts and the top 100 verdicts in Florida. Whitney is a frequent speaker on topics of civil justice, trial advocacy and professionalism and since 2008, she has taught for NITA up one side of this country, down the other and from side to side, and outside of the United States too in Puerto Rico, zanzibar and Kenya, and this fall at our first-ever program in Ethiopia. Whitney Untied is a woman on the go and I'm glad she could spend an hour talking to us about how to deal with obstreperous or difficult counsel and witnesses in depositions. Here's our interview. My guest today is Whitney Untead. It is her third time on the podcast and it is always a pleasure to have you back and have a chance to talk to you, whitney, so welcome back.
Whitney Untiedt:Thanks so much, Marcy. They say the third time's the charm, so I'm very excited to be a three-peat for you.
Marsi Mangan:Yeah Well, I know that you have a really busy summer ahead with trials and other proceedings and I'm really grateful that you could make time to spend with us. Thank you so much. I'm thrilled to be here. I always like to open with a few definitions so that we can agree on what we're talking about. And so we're talking about obstreperous counsel and dealing with jerks. So those are my two definitions. The first one is obstreperous.
Marsi Mangan:I looked in the Oxford English Dictionary this morning and it says that obstreperous means noisy and difficult to control. The term came into usage in the late 16th century and it is derived from the Latin term obstrapere ob, meaning against, and strapere, meaning make a noise. I think the OED is a little too dignified to define jerk when used as a noun. So I went to Merriam-Webster and they said that a jerk is an annoyingly stupid or foolish person, an unlikable person, especially one who is cruel, rude or small-minded. So I think that when we put the Venn diagram together, we can see where the overlap of these two terms are. Trial lawyers deal with jerks, sometimes on the daily. So my first question to you then, whitney, is what are the types of obstreperous or jerk behaviors you might encounter in a deposition?
Whitney Untiedt:So I think that there's four sort of basic categories that you can fit most people into, and I want to start by saying that I really, at the outset, give everyone the benefit of the doubt. And so, as we're talking about jerks and obstreperous counsel today, I want to give everyone the benefit of the doubt, in case anybody sees themselves reflected in our conversation that a lot of the times the things that we do, the behaviors that we do that can have negative connotations or that can be perceived negatively by other people, aren't always things that we're setting out to be a jerk. Sometimes the jerk behavior is just sort of an unfortunate side effect of what we're doing. But as we're talking through identifying jerk behaviors and other, I think it's also important to do a little bit of self-reflection, because I am confident that I myself have displayed jerk behaviors in the past as well. I never mean to, but so I want to put that disclaimer out, while we're talking about jerks, that if this feels personal to anyone, I'm not calling you a jerk, I'm just maybe saying maybe it's time to rethink or modify some of your behaviors. So what?
Whitney Untiedt:Some of those four categories that I see often in depositions are number one the talker, the person that is interrupting with a lot of objections, with speaking objections, with witness coaching, someone that just can't sit still and do their job or feels like they're not doing their job defending the deposition effectively if they're not stepping in and stepping over the lawyer that's taking the deposition. So that's the talker, the person that just can't help themselves. Then, sort of as a side note to the talker, is the interrupter. The person that is jumping in when you're in the middle of formulating a question, the person that is being helpful and we'll put air quotes around that word helpful by saying oh, I don't think that's what you meant to say, I think you meant to say X, y, z. The person who won't let you finish your question. They won't let the witness finish their answer. They're just constantly interrupting the flow, asking for breaks when you don't need to take a break, for example.
Whitney Untiedt:Then there is the egomaniac the person who feels like perhaps they've been doing depositions for decades or they've been practicing for a really long time, or they just feel like they're really, really good at what they do and so they're pontificating throughout the deposition and maybe not even interrupting you. They're not necessarily talking, they're not necessarily over talking. Even interrupting you. They're not necessarily talking, they're not necessarily over-talking, they're not necessarily interrupting, but in their body language and their off-record activity they're doing things that can be perceived as belittling opposing counsel or trying to make opposing counsel feel small.
Whitney Untiedt:And then, last but not least, perhaps the most vicious type of jerk is the charmer, the person that comes in. And in particular if they're the one taking the deposition and you are defending the deposition, and they come in and they're extra super charming to your client, they are trying to make everyone feel at home and your client, the person who you are defending being deposed, sort of falls under their spell and perhaps gives them a little bit more than they deserve in the deposition. Or if they're defending the deposition, then they come in and they're trying to charm you, the taker of the deposition, to say you know, maybe make you feel bad about asking the questions that you need to ask or doing the things that you need to do in the deposition.
Marsi Mangan:Well, that's a handful. That's a lot to deal with.
Whitney Untiedt:It is, it is, and you know. One of the things is that you don't always know which version of a jerk you may be up against, and also, of course, there's people that flow between all four pots throughout. So it just means that you've got to come into the deposition prepared for whatever gets thrown at you on any given day.
Marsi Mangan:Yeah, so we'll get to some of your tips and tactics in just a moment. But to be clear, I also want to mention that we're not just talking necessarily about obstreperous opposing counsel. Sometimes the jerk in the room is actually a difficult witness, is that not right?
Whitney Untiedt:Oh yes, and it happens all of the time, sometimes in cahoots with defending counsel, and sometimes they are breaking every rule and admonition that the defending counsel has given them and everyone in the room other than the witnesses just holding their head in their hands, wanting for this to be over.
Marsi Mangan:So do their behaviors typically differ from that of obstreperous counsel.
Whitney Untiedt:Well, you know, like everything in trial lawyer's life, it depends. Certainly there is the over-talker, but there is also in witnesses who are behaving badly in deposition. There's the non-talker, there's the witness who is just got their hackles up so high that they just will not answer any question directly. You could ask them what their name is and they're going to just shut down and say well, what do you mean by my name? That is certainly hyperbolic. I've never had it that bad in a deposition. But I certainly have witnesses that are just so intent on being uncooperative that they are unwilling to answer the most basic question and that can be the most difficult to deal with, because you're like come on, man, I just asked you for your name or your job title or where you work or what you do, and you won't answer a question, and I know that the lawyer has not told you to do this.
Whitney Untiedt:Then there's also and this can happen particularly with expert witnesses or a fact witness that works in a field of expertise, a police officer or a doctor or a professor or something like that that they just want to go off and tell you why your question is worded poorly or why your question presupposes an assumption that they don't agree with, when you're not actually trying to trick them. This is just right at the beginning of your deposition, where you just really want to find out what it is that they know, so that you know. Yeah, maybe you can use it to trick them later on down the road, but right now, all you want to do is understand what it is that they have applied to the concepts in these cases, and that can be so frustrating in a deposition applied to the concepts in these cases, and that can be so frustrating in a deposition.
Marsi Mangan:Yeah Well, people are funny and life is a rich tapestry. Indeed, it seems like dealing with a jerk witness then calls for maybe a little more delicacy than dealing with a jerk lawyer, because it's not your client. Do you think that's true?
Whitney Untiedt:Yeah, so dealing with a jerk witness more than a jerk lawyer, you know we as lawyers there's this level of professionalism and so when a lawyer is acting in a way that is difficult in a deposition, you can at least say well, you know, okay, they are a professional, they are in my field, I have an understanding of where they're coming from and also because they are the lawyer, you can just sort of set them aside and ignore them and pretend that they don't exist and just really focus on the witness.
Whitney Untiedt:When it is the witness that is working hard to give you an extraordinarily difficult time, it calls for a different approach, right, because you are there to get to ask fair questions and to get fair answers from the witness, so that you can build your record, so that you can do your fact-finding mission in the case. If it's an expert witness, so that you can understand their methodologies and how they reach their conclusions that are different from the conclusions that support your side of the case and you can't just ignore them. So you have to find different tools in your tool belt to deal with what it is that they are handing you so that you can move forward as effectively as possible in the deposition.
Marsi Mangan:So how do you do that with the witness?
Whitney Untiedt:So I think first of all, right it is coming to the deposition prepared, having an idea of who this person is, based on conversations with their counsel. Because those off record telephone calls with counsel will give you a world of information about what to expect from the witness in the deposition. Right, Lawyers will prepare you, even if not directly then indirectly, for what to expect from the witnesses in deposition that I have a hard time communicating with. I may, purposefully or not, end up communicating that information to opposing counsel so that they kind of have an idea of what they're going to be working with, and it happens in both ends. I develop as best I can a working relationship with opposing counsel so that when we're preparing for depositions, if opposing counsel has met with their client or met with the deponent, usually there's an opportunity where they'll give you a little bit of information so you can kind of know what you're coming up with, coming up against.
Whitney Untiedt:But then there's also just general cues in life, reputational information. If you're dealing with an expert, you've done your due diligence by talking to other lawyers that have deposed this person, by reading this person's depositions in advance, so you know what you're going to get when you're walking into the room and if it's a professional witness not necessarily an expert, but someone who is a professional in their own lives a business executive, an accountant, a teacher, a doctor, an economist, people who work professionally or speak professionally you probably can get an idea of how they interact with others when they're being challenged. And so you come to the table prepared not just with your lists of questions and the topics that you want to go into, but also prepared with some idea about, if they're going to misbehave, what they're going to do, so that you can have some ideas about what you may need to do to deal with that behavior.
Marsi Mangan:Yeah, those are really great tips. I would assume that that kind of prep work that you described for researching your witness also applies to getting to know what your counsel is like and being prepared for their potential for misbehavior too. Is that right?
Whitney Untiedt:Yes, absolutely.
Whitney Untiedt:And before you get into deposition, just through the communications that you have with the lawyers for the other side, you're going to have a pretty good idea about what to expect when they come into the room.
Whitney Untiedt:I always encourage folks when you can pick up the phone instead of sending an email, so that you can start to have some conversations with your opposing counsel.
Whitney Untiedt:Go to court, spend some time talking with the lawyers off the record when you're going into hearings in the early phases, so that you can really get a sense of who this person is as a human being Because, like I said at the outset, most of us 90 something percent of us even when we're doing something that can be perceived as jerk like behavior, isn't actually trying to be a jerk.
Whitney Untiedt:So, figuring out what triggers behavior and opposing counsel, figuring out what they are perceiving from me, so that I can make sure that the way that I'm interacting with them can help them learn that I'm just a human, just trying to represent my client in the very best way possible, so that they're giving me the benefit of the doubt. I'm giving them the benefit of the doubt until and unless they do something that proves that they don't deserve that benefit of the doubt, so that I understand then again what I need to do and what they're bringing to the table and how I can anticipate that they may be likely to defend their deponent or their client once we go on the record.
Marsi Mangan:So let's say that they do extinguish your goodwill that you've extended toward them. How then should you respond to a jerk in the moment?
Whitney Untiedt:Yeah, so a couple different options, right. Different options, right. The first that I always go to and I say always, usually go to is just sort of setting them aside, ignoring their behavior, making sure that they can't see that they are getting under my skin, regardless of whether they actually are or not. I can tend to have pretty thin skin. It's pretty easy to get under it, but my job is to stay focused on the task at hand. And if I allow a lawyer to take me off the task at hand, if I allow them to take my concentration away from my goals in the deposition and focus my concentration on responding to the lawyer, then they have already won. So, number one I want to ignore their bad behavior as much as I possibly can, until and unless it gets to the point where it is completely disrupting the deposition. And by completely disrupting the deposition I mean they won't let me get my question out, they won't let the witness answer my fair question. They are just keeping us from getting anything done. And at that point, number one, if I can't ignore them, my first line of business is to ask for a break. Go off the record as much as I can. I like to have these conversations off the record, first because when it goes on the record, you're really raising the temperature in the room, and I like to avoid that as much as possible. And then, if I can't though, then I will have that same conversation on the record the off-record conversation. Listen, man, I know that you need to make your record for objections, but the rules in our jurisdiction say you can't ask a speaking objection form of every single question. Neither I nor the court has an understanding of which questions you actually find objectionable. So if you can just stick to objecting to questions that are actually objectionable and not objecting to the ones that aren't, then we can get through this deposition. You know other conversations that we may have off the record before we go on.
Whitney Untiedt:The record is, every time you're making an objection and your witness is repeating your objection to me, it is wasting time in the deposition. You're putting me in a position where I'm going to have to go to the court to ask for more time because we're going to blow past our seven hours or our eight hours or whatever the time limit is within our jurisdiction because of your constant interruptions. I don't want to put either of us in that position. So can we just cut to the chase and get through this deposition in one day so we don't have to come back and I don't have to explain to the court why I need more time? I don't want to make you or your witness look bad.
Whitney Untiedt:All of those types of things where really, what I want to be saying is, you know, pulling my hair out, screaming, yelling, ranting, raving, stomping my feet and pounding on the table. I'm going to do it in the nicest possible way to try to get us both on the same side so we can get through this. But if I can't and if the off-record conversations aren't working, then I'm going to have to come on the record and make my record, which is my speech to the court reporter. I'm again not going back and forth with the counsel, because if I'm on the record, I can't look bad. I have to do everything in my power to do everything correctly. If I think that there is even the tiniest possibility that I'm going to end up having to go to the court making a motion and asking the court to consider sanctions for the other side acting poorly, I have to come out with all of my feathers in line, with no ruffles at all being calm, cool and collected and I've got to make my record as coolly as possible Does that make sense?
Marsi Mangan:It absolutely does. I think that one thing that can be really difficult is that we're usually socialized to take the high road, no matter what, even in the face of somebody being rude, crude and socially unacceptable. And so how do we get past that kind of mental barrier of feeling like, oh well, now I'm being the jerk too, or I'm being rude too? How do we get past that?
Whitney Untiedt:Yeah. So it can be a place that's really uncomfortable, and I want to suggest that most of the time we are most uncomfortable, sort of putting our foot down and doing what we need to do to protect our client and preserve our deposition, when we are earlier in our careers and when we have faced this type, this level of obstreperous behavior fewer times, because we're perhaps concerned that maybe they know something that we don't know. Or, in all of their years of experience, maybe they're doing it the right way and we're doing it the wrong way. And so I think number one, we need to bring our own level of self-confidence into the deposition that this is my deposition, these are my questions. I have a purpose in the questions that I'm asking and I have a purpose in approaching the deposition and in asking questions of this particular witness, and that purpose is valid.
Whitney Untiedt:And it doesn't matter if I'm a one-year lawyer, a 15-year lawyer or a 50-year lawyer. I am here for a reason and all I'm doing is protecting my client, preserving the record and ensuring that I am zealously advocating for my client and my positions. So it's not about the other lawyer, it's not about being a jerk, it's not about rising to debate or responding in kind. It's just about protecting my client's positions and preserving the record. Preserving the record and I think if I can view my purpose and standing up for myself in a way that is just professional as opposed to personal, then hopefully that will give me the confidence to stand up and to tell somebody else regardless of how we are in terms of experience against each other or whatever that it will give me that confidence to stand up and put my foot down and say, no, I can do this and we need to do this my way.
Marsi Mangan:I think, if I'm hearing you right, maybe one thing that you can do when you're kind of early in your career and just starting to take depositions is to think about being a lawyer as being kind of a character and that those responsibilities that you have to your client give you a certain kind of cover that protects you from feeling like a jerk.
Whitney Untiedt:That is the perfect analogy, marcy. It is being a character and the character is me. When I go into a deposition, I'm still me, I'm still Whitney, I don't set myself aside. But I take on that protective character for not just the witness, not just my client, not just my positions, but for the record and for the court process and the litigation process as a whole. And as part of that, I have to be professional. My character is that professional character and I have a duty to the courts and I have a duty to the system to ensure that level of professionalism. And if I'm not, if I'm letting a jerk run ramshot over me, then I'm not upholding my duty and my responsibility to the court, my responsibility to the court.
Marsi Mangan:Excellent. We've talked quite a bit about how we, as a lawyer, might be affected by a jerk in the deposition room. I would like to talk about the other person who would be affected by a jerk, and that's your client. How do you advise them when it comes to sitting in the same room with a jerk?
Whitney Untiedt:It is the one thing that most witnesses, most clients particularly if they are not professional clients not professionals in their private life but even when they are professionals in their private life everyone is nervous about being personally attacked by a jerk. And so when I start my witness prep sessions and I always start with what are you concerned about in the deposition that is the number one answer on the board that I get back Are they going to be mean to me? I'm so nervous about what's going to happen in the deposition Number one. I always tell the client or, if it's not a client, the third party witness. That's my job. I am the shield between you and the jerk and I'm not going to let anything bad happen to you. If they're being a jerk, I want you to ignore that and just focus on me. If they're being a jerk beyond what is acceptable, I'm going to step in and I'm going to protect you. I'm not going to let anybody be unfairly mean or prejudicial to you. That's just not going to happen. I'm going to enforce the rules and I'm going to protect you. So I don't want you to be worried about jerks coming in and trying to take over, because it's just not going to happen when I'm in the room. Number one we'll take a break. Number two if I have to talk to them off the record, I'll talk to them off the record. Number three if I have to raise the temperature room and admonish them on the record or make some statements on the record, I'll do record. Number three if I have to raise the temperature room and admonish them on the record or make some statements on the record, I'll do that. Number four if I need to adjourn the deposition to protect you because it's gone off the rails, I'll do that.
Whitney Untiedt:Your responsibility as a witness is really the easiest responsibility of anyone in the room, and that's just to tell the truth. And it doesn't matter if they're being a jerk, it doesn't matter if they're being your best friend. Your job is just to sit there to listen to the questions that they ask, to make sure that you understand the question, to set aside their demeanor, the way they're acting, the tone of their voice. Just listen to the question, make sure you understand the question and then answer the question truthfully. The hard part is for the lawyer that's taking the deposition, the easy part is for you and then usually, marcy, what I'll do is I'll bring in someone else in my office, someone that the witness doesn't have a personal relationship with, and that person will be a jerk and by the end of it, that person's been a worse jerk than anything that the witness will actually deal with when they get into a real deposition. So they feel confident and they feel prepared and they understand that we're on the same team.
Marsi Mangan:Well, how reassuring it is to be told that I've got your back, no matter what, and you don't have to worry about this. You just need to sit there and answer questions and I will handle all the rest of it.
Whitney Untiedt:Well, and that's the whole point I mean, that's what we as lawyers do for our clients throughout every phase in the trial. From the very beginning when we're interviewing them, we're building that relationship. By the time they're sitting for a deposition, that implicit trust should already be established so that they know that we mean it when we tell them that I've got your back in the deposition and you don't have to worry about anything. We've got that reputation and that relationship already.
Marsi Mangan:It feels good to be taken care of. For sure it does. What are some of the things that you should not do? You've told us about things that you should do, but what about the flip side things you should not do when dealing with a jerk?
Whitney Untiedt:Well, you certainly don't want to respond in kind, regardless of how high your hackles get raised. You do not want to rise to debate as soon as you do. As soon as you respond in kind, as soon as your attention turns from the witness to the lawyer or from the topic at hand to the rabbit chase that they've sent you on, then they've won. And if it's about winning and losing in a deposition, as the lawyer taking the deposition, we win when we get fair answers to the fair questions that we have asked. We lose when we allow someone else to take us away from our primary purpose in the deposition. We also lose when we lose our cool and we get confrontational because we're allowing them to see that they're getting under our skin, which only encourages them to continue the bad behavior. And on top of that, it takes away our ability to go to the court in a place where we have a justifiable reason to do so, because the whole record's going to come in and the judge is going to see that we have behaved poorly as well. The only way that we have anything to stand on when we go to the court is if we have acted calmly and coolly and collectively and professionally in the face of whatever it is that they're throwing at us, particularly because these days, depositions are at least audio recorded, if not video recorded, which means that it's not just that black and white transcript, it's that the court's going to get the audio or the video. They're going to hear the tone and the inflection. They're going to hear pieces of paper being ruffled. They're going to hear everything tone and the inflection. They're going to hear pieces of paper being ruffled. They're going to hear everything the way that we heard it, in real time. And so we're not protected by that just easy, objective transcript.
Whitney Untiedt:Everything's going to come in and be brought to the judge's attention, and so if the judge sees us responding in kind, if the other lawyer hears us rising to the bait, if the witness or our client hears us losing our cool, then we lose that level of respectability and professionalism that we've worked so hard to bring to the table, which makes it difficult then to come back to a level playing field in the deposition and to come back to the reasonable and rational questions that we want to ask the witness. After we've gone off, it's also really difficult to come back to our client and to say hey, you know, the other side was behaving poorly and I'd love to bring it to the court but I can't because I threw a cup of water at him or you know whatever I may have done to respond to his bad behavior. You know, I certainly don't want to put myself in that position with my client where I'm having to apologize to my client for not having handled the situation as best as I could have in the moment.
Marsi Mangan:Yeah, that's a really bad look to lower yourself to another person's level. But more than that, I think that everything that you've said is actually really good life advice, because we sometimes run into jerks even outside of the deposition room, and so there's a broader application and things that we can all learn about not rising to the bait or losing your cool or letting somebody throw you off your center.
Whitney Untiedt:Yeah, you know, in social science we talk about feeling reflections when somebody is getting testy with you in the real world. Also, this works really good in personal relationships that instead of responding defensively or offensively, you can use that feeling reflection. I hear you saying X, y, z and repeating back what they have just been said, just been saying to you. I'm not really sure what you mean by that. Can you explain to me so that I can do my best to respond or to do things better? Number one it really takes them off guard because they thought they were going to be able to pick at you and get you to yell back at them. Number two it shows that you really actually do care about what they're saying, and I hope that you do, because of what they're saying has merit. Maybe their message is not good, but perhaps they're very poorly trying to say that the question that you've asked isn't a fair question. Well then, by all means, I want to know if it's not a good question in the deposition.
Whitney Untiedt:I want to fix it in the deposition because I'm not going to get another bite of the apple. And number three I've disarmed them. I want to fix it in the deposition because I'm not going to get another bite at the apple. And number three, I've disarmed them. Perhaps I can cool down the temperature in the room, cool down the other side. They can see that I'm not trying to be a jerk. And perhaps if it's the lawyer behaving poorly and the witness is like what's happening here poorly and the witness is like what's happening here, I can get the witness on my side and we can triangulate against the defending counsel and all of a sudden the witness and I are on the same team because they like me better than the jerk that's sitting next to them. That usually works out pretty well for me in a deposition.
Marsi Mangan:Well, that's a next level tactic for sure. I think that's great. What did the rules, like the model rules or civil procedure, have to say about lawyer conduct during depositions?
Whitney Untiedt:Well, you know, certainly the rules speak to our conduct and the rules speak to what we can and cannot do and what the purpose is and is not for a deposition. So there's rules, obviously, that will apply to the lawyer taking the deposition and that there's the rules that apply to the lawyer defending the deposition and that there's the rules that apply to the lawyer defending the deposition and really making sure that when you are the lawyer that's taking the deposition, you want to be thinking about your model rules, your rules of professional conduct, your rules of ethics that apply in your jurisdiction. Yes, you are defending your client's interests zealously, but you also have your professionalism responsibility to treat everybody fairly. And you have your evidentiary rules about seeking only evidence that is allowable, and in depositions it certainly is much more free range than at trial right, it's not just evidence that is itself relevant that you can seek, but evidence that is likely to lead to other evidence that is admissible at trial. So you get more of a free reign, but that doesn't mean that you can go into absolutely everything. And so what I would caution anyone to do when they're thinking about taking a deposition and planning for what they want to ask any particular witness is certainly start with everything you can think of the whole kitchen sink and then really hone in and focusing on what is my purpose in this deposition. What do I need from this witness? What can they help me understand, so that I can know whether my theory is following down the right track or whether there's something that I've missed in my review of the evidence up to this point, and really be honing in on what is my goal in this deposition.
Whitney Untiedt:Just because you get eight hours under the rule or whatever your jurisdiction allows, doesn't mean you need to take all of that time. It's not just about being effective. It's also about being efficient and thinking clearly about what you need to get out of this witness so that you can be efficient. Your client or someone is paying for your time. Someone is paying for the time of the defending lawyer. The witness is taking their time out of their life in order to be there. You don't want to be the obstreperous guy that is asking questions solely for the purpose of asking them and not because they have real evidentiary value in the discovery process in your case. So that's the main rules that you want to think about when you're preparing to take a deposition.
Whitney Untiedt:When you're preparing to defend a deposition, you want to be very mindful about enforcing the rules against the person who's taking the deposition, making sure that your witness is not giving privileged information, making sure that you are making your objections appropriately versus inappropriately, based on the rules of your jurisdiction. Some of us are in jurisdictions where all you can say is objection to form. Some of us are in jurisdictions where you are allowed to give a little bit more information. Objection to form compound objection. The question calls for speculation, for example. Some of us are in jurisdictions where you have to give that information so that opposing counsel can, if they are able to, fix the question and make it non-objectionable. But you also want to know what you can and cannot object to right Under the federal rules.
Whitney Untiedt:You're not waiving an objection if you don't make it in the deposition, because those things are for a court to figure out later on and to rule on later on as to ultimate admissibility. But you do waive objection and you must object to things that can be cured during the deposition. So, for example, you don't need to object if a question is prejudicial or confusing or misleading under the federal rules or if it calls for hearsay under the federal rules, because you can deal with that after the fact. But you can't deal with after the fact the bad form of a question, because the bad form of question can be cured within the deposition. If it is an argumentative question and you don't object, then the witness's answer becomes the witness's answer and there's nothing you can do about it at the end and that answer can be used against them at summary judgment. That answer can be used against them in trial for impeachment, for example. So you have to object if the form of the question can be cured by the deposing counsel.
Marsi Mangan:Okay, that's a great distinction. I know that in recent years, especially after the pandemic, kind of locked down courthouses and all the proceedings that happen in them and related to them. There are a lot more remote depositions now than in the past, and so I would like to talk to you a little bit about what difference it makes whether you're holding a remote deposition versus in-person and dealing with a jerk under those two circumstances, yeah, absolutely.
Whitney Untiedt:I mean, marcy, you're right, remote depositions are here to stay.
Whitney Untiedt:We're finding more and more often that clients are unwilling to pay for lawyers to travel, to get on a plane, to stay in a hotel, to bill for hours and hours of travel and to take time away from other work on the case to go to do a one-day or a half-day deposition in a far-flung part of the country.
Whitney Untiedt:And so remote depositions, whether we like them or not, are here to stay. They can present some difficulty with dealing with difficult witnesses and difficult lawyers, but I don't think ultimately overall, that if you're taking or defending a remote deposition, it's going to really be that much different than an in-person deposition. Number one let's start with taking a remote deposition, be asking to get them to talk about where they are, who's in the room with them, what they have visible on their computer screens, what materials they have on the desk in front of them, and again, you're probably going to go into this understanding at least the reputation of the defending lawyer. So you know how far you need to go into this process. Do you need to ask the witness to take their camera and to take it actually off?
Whitney Untiedt:from wherever it is, and to show you around the room so that you can be confident that they don't have notes in front of them, that they don't have an email chat or a Teams chat with opposing counsel up on the screen in front of them. You're going to want to ask some of those questions to make sure that they're alone in the room or that they identify who else is in there, that they have nothing with them or that they identify what it is that they have with them and that you get agreement from everyone in the room that you are entitled to a copy of whatever it is that they have with them and that you get on the record that you're going to be provided a copy after the deposition. You also want to make sure, as the deposing attorney, that you have an agreement in place and that you announce the agreement on the record with your opposing counsel about how exhibits are going to be used during the deposition. Does everybody have an exhibit book that you have provided in advance? How are exhibits going to be marked and given to the court reporter throughout the deposition? Is it going to be by email? Is there a drop box? How is everybody going to be able to be on the same page, that we're all looking at the same thing when the witness is being provided documents to review, and are we doing that in hard copy or are we doing it on the screen? If I'm dealing with in the moment anything that looks like bad behavior communication on the side between the lawyer and the deponent, for example that I am immediately calling it out on the record and it doesn't again. It doesn't have to be mean, it's just.
Whitney Untiedt:I want to take a pause in the deposition right now because I've noticed that it appears that the witness is looking at a side screen instead of looking at the camera in front of them. Miss Witness, what is it that you are looking at, mr Lawyer? Or Miss Lawyer, what is it that the witness is looking at? Can we agree, witness, that? Number one, you're going to give me a copy of that and, number two, you're going to close down that application so that we can focus on the deposition in front of us?
Whitney Untiedt:The other thing is, is that the remote deposition? Because it's difficult to interrupt and to talk over one another and there's that little bit of lag normally with the audio in a remote deposition on Zoom or Teams or whatever application you're using. It actually does make it more difficult for the lawyer to interrupt you, for the witness to talk over you, because your court reporter is going to jump in and say one person at a time. This is a Zoom deposition, which also means that it makes it easy for us to remember that we need to take a breath pause. Give that court reporter time to catch up before we admonish or ask for a break to go off the record or deal with whatever the objection is. It's harder to be difficult over a screen because it's easier to ignore the lawyer. That's being difficult when it's just you, me, the witness and a lag in between over the screen.
Marsi Mangan:Well, that's really great. What about defending depositions?
Whitney Untiedt:Yeah. So defending depositions means that when you're defending a remote deposition, your witness prep has got to be on point because you, if you cannot be in the same room physically as your witness because your witness is in New York and you are in Texas and your client will not pay for you to fly to be there in the same room with your witness you have got to prepare that client or that witness to be able to follow the rules, and the most important rule becomes pause. Take your time between the end of their question and the beginning of your answer to give me an opportunity to jump in and object if I need to Pause and if you need a break, ask for it. And if I ask if you need a break, the answer is yes, because it means that we need to get out of here for a minute, either so I can talk with the lawyer and try to get things back on the rails or because there's something else that I need to fix.
Whitney Untiedt:Now I do want to say that in remote depositions, when you're not in the same room with everybody, there may be rules and difficulty that comes into play in terms of admonishing your witness off the record, because there may be rules, depending on your jurisdiction, about whether you're allowed to speak with your witness off the record in a Zoom deposition, just as there may be in an in-person deposition the rails, or if you are wanting to remind your witness like, yeah, this lawyer is being mean to you and the way that they're asking their questions isn't great.
Whitney Untiedt:But just remember, just listen to the question and don't listen to the way that they're asking it, because we need to get through the deposition. There are jurisdictions where you can't have that conversation and there are jurisdictions where you can have that conversation and you really want to know where you are in terms of what jurisdiction you're practicing in, but you also as well. That extra pause in the lag time in the remote condition of the deposition gives you, as the defending lawyer, a little bit more of an opportunity to prepare what it is you're going to say or you're going to do, to either turn up the heat or turn down the heat within that deposition when you're dealing with obstreperous counsel, because you have that a little bit of extra time to be able to figure out what it is you want to do, what it is you want to say, so that you can do it and you can say it effectively without stepping on the record.
Marsi Mangan:Why do lawyers behave like jerks anyway? What is the motivation?
Whitney Untiedt:You know, that's a good question. I don't always know, but I have several theories. Don't always know, but I have several theories. The first theory starts with they are testing your breaking point. They are looking to see how far they can push you until they get a reaction. They want that reaction. They want to see if they can get under your skin. They want to see if certain behaviors can take you off of the path that you're going down. And a lot of the times, marcy, you'll see in depositions that the bad behavior ramps up the closer you get to a trigger point for that witness, that the interruptions and the objections and the on-the-record witness coaching and the requests for a break start to happen more often when you have caught the sense of scent of something and they don't want you to go down that path and so they're trying to throw you off. And so what I would say is, if you catch that happening, someone who's been twirling their pin throughout the deposition and checking their text messages all of a sudden starts sitting up straight and making eye contact with you. You're onto something. Ignore that lawyer and keep going down your path until you sink your teeth into your prey. You know, I don't mean that actually. That is hypothetically, of course, but don't let them have that reaction.
Whitney Untiedt:I think sometimes another motivation is that they're just trying to waste time. You're on the fifth hour of your seven-hour deposition. You are getting into past all of the fact-finding mission and now you're getting into your leading questions. You're getting into trying to get some admissions. You're getting into your theory testing and they don't want you to get to the end, and so they're trying to get some admissions. You're getting into your theory testing and they don't want you to get to the end, and so they're trying to waste time. And so that's when you see them taking some breaks and that's when you see the speaking, objections and the conferences with the witnesses starting to happen that they're just trying to waste time. It can be purposeful. It can sometimes not be purposeful. Sometimes it's just sort of they see things going in the direction that they don't want them to go, and so they're trying to like, just drag it out as long as possible. And again, ignore, ignore, ignore. Make your record, do what you have to do to ensure that if they are going to waste time, that they're going to be called on the floor for that and held accountable for the time wasting and you are not going to get into a tit for tat, wasting your own time by arguing with opposing counsel, when you're just asking fair questions and you just deserve a fair answer.
Whitney Untiedt:There's two more categories on the motivation piece. I think one sometimes lawyers who are more experienced, who are defending a deposition against a lawyer who they perceive to be less experienced, might be thinking that they're being helpful by giving speaking objections or by offering ideas about how you might be able to ask your question in a better way, and in their mind, they are just trying to be helpful, even though for the other lawyer, you don't want your help. I don't need your help. I've got my plan and ask my questions that way because I wanted to ask my questions that way.
Whitney Untiedt:You know, again, ignoring the behavior, keeping your eyes on the prize and keeping your focus on the witness is, nine times out of 10, the right move every single time. You know, another option for that type of person is on a break to give them a little bit of the ego boost that they may be looking for. You know, I know I am so honored to be here. I am loving all of the tips that you're giving me. I am wondering if maybe we can save that till after the deposition and we can have a little more personal talk one-on-one, because I'd love to learn from you. But I've got to be back at my desk or whatever by X, y Z time and I'm just really trying to get through the deposition. A little bit can go a long way.
Marsi Mangan:That's hilarious. It sounds like you're really good at dealing with jerks. Do you have any war stories about a memorable jerk that you've encountered in a deposition of your own?
Whitney Untiedt:You know I do, and without naming names, I'll give you an example of a time where a lawyer just came in guns a-blazing, sitting down, their hackles were up, and what I realized pretty early on was that either A and I'm still not sure exactly what it was, but I think a combination of both they were putting on a show for a senior partner that expected a certain type of approach to the deposition that had nothing to do with me, and or B. They just didn't know any better, because the only person that they'd ever seen defend a deposition before was that same senior partner, who learned from someone else that the only way to defend a deposition is to be defensive and to come in guns a-blazin'. And so when I realized and took to heart that this bad behavior, that the interruptions and the witness side conversations and the paper shuffling had nothing to do with me and had everything to do with their own insecurities, it gave me the internal permission I needed to remember that.
Whitney Untiedt:Number one I'm confident. Number two I'm here because the other people in my firm and my client trust that I'm the right person for the job, regardless of how many times I've done this before, or in what context, or what I know about what else is going on in the world. I've been chosen because everyone else is confident that I can do it and so I'm going to be confident that I can do it at well. And once I allowed myself to understand that their behavior had nothing to do with me and everything to do with them. It helped me keep my eyes on the prize and helped me keep focus and, you know, gave me some good war stories to take back to the office after For sure.
Marsi Mangan:I mean you almost have to feel kind of sorry for that attorney for putting on that performance and not really knowing any better attorney for putting on that performance and not really knowing any better.
Whitney Untiedt:Yeah, you know, and I'd like to think, marcy, that if that lawyer ever had the opportunity, I would send them to a NITA deposition program to learn how to do it right, because to defend a deposition you don't have to be defensive, you just have to be professional, and you kill more flies with honey than with vinegar 99% of the time. The worst jerks are the ones that kill you with kindness than the ones that try to come at you with a butcher knife.
Marsi Mangan:Well, let's talk about that. What should listeners do if they just can't get enough of this jerk talk from you?
Whitney Untiedt:Well, they should come and join me in October in Miami for a two-day NITA deposition program. We're going to be using this theme of overcoming the fear, overcoming the outside pressures and bringing your best self into a deposition, regardless of whether you're taking that deposition or defending that deposition. And I'm really, really excited about the fact that we're going to be covering all of the deposition skills how to gather information, how to get your admissions, how to test your theories but we're going to be doing it all in the context of bringing your best self to the table and being able to do away with the distractions and the jerks that are trying to interfere with what your purpose and your value of the deposition is. It's going to be a great two days.
Marsi Mangan:Of course it is, and you're the program director.
Whitney Untiedt:Yes, I am, I am and I was just looking at our faculty list earlier today, and we have a fantastic faculty of lawyers and former judges from across the country, and then some of the best and brightest that Miami has to offer. Here locally, we have lawyers in big law, we have folks representing government entities, we have folks in both criminal and civil contexts, we have public interest lawyers, we have big law, we have solo practitioners really representing the full spectrum of what it is that lawyers do. So that the folks who are going to come and participate and learn, not from us but with us, will have someone on faculty that does what they do, someone that brings their professional perspective to the table and someone that they can learn with, network with and collaborate with is we're all working together to build our best selves into positions.
Marsi Mangan:And then, as if that's not enough, it's followed up right away with the Trial Skills Program, which is directed by Jamie Cassidy, one of your colleagues there in Florida.
Whitney Untiedt:Yes, jamie Cassidy is an amazing lawyer. She is with the law firm McDermott, will and Emory. She has been a law professor, she has been a public defender, she has been in-house counsel and she has been a civil litigator. Jamie has done it all and she has been in the courtroom on both sides of the V just about more than anybody else I can possibly think of. She as well, has put together a stellar faculty and we're super excited about this deposition to trial way that the programs are structured, because it's two days of deposition followed immediately by four days of trial that ends with actually doing a full trial that will be presided over by an actual judge. Yeah, so for the lawyers who can come and be with us for the entire week, you get those two days of intensive deposition training followed immediately by four days of intensive trial training using the same case file throughout.
Marsi Mangan:It's going to be an amazing experience and ethics credits too, I believe, right Ethics CLEs.
Whitney Untiedt:Ethics, cles, in both deposition and in trial. In deposition, your ethics come in the form of dealing with jerks and preparing your witnesses for how to deal with difficult counsel when they're being deposed, and then, in trial, all of the good ethics and professionalism that comes in. In trial and in deposition we're getting tech credit too, Marcy.
Marsi Mangan:Well, I'm going to drop the links for the two programs in the show notes. So if any listeners are interested in that, they should definitely check us out. We would love to have you. How did you put it? Not learn from us, but with us? Is that what you just said? Yes, yes, absolutely.
Whitney Untiedt:All right.
Marsi Mangan:Well, I want to close our big talk about jerks with something that one of our frequent podcast guests shared with you, and that is Judge Mark Drummond, and he offered you a little bit of advice. Do you happen to have it handy? I do, all right, let's hear it.
Whitney Untiedt:Yes, you know, judge Drummond is one of those people that has done it all and seen it all, and when he told me this, it really changed my perspective and helped me to understand what's going on and why. It doesn't matter, because we are, at our core, trial lawyers. Whether we're criminal, whether we're civil, we are trial lawyers, and so we have to accept that we have picked an area of the law with perhaps indeed, the highest concentration of jerks and that our attitude, going into everything that we do as trial lawyers, is going to be our greatest ally. And ever since he told me that, I have taken it to heart and it really helps to frame what's actually happening and how I can best respond.
Marsi Mangan:Well, everything that you have spoken about today talks about your attitude, and that is indeed your greatest ally, so thank you very much for spending so much time talking about the unpleasant, sometimes topic of jerks and obstreperous counsel. Would you have a few minutes left to answer our sign-off questions? Let's do it, okay. I always love to know what people are watching on TV, so how about it?
Whitney Untiedt:Well, I just finished re-watching Ted Lasso, so now I am re-watching Succession and really enjoying, now that I'm seeing it for the second time, all of the Easter eggs, because I know what's going to happen, and so I've. I've just partway through the first season and I'm laughing hysterically at places where I was shocked the first time going through. If you haven't seen it once, see it. And if you've seen it once, definitely go back and watch it again.
Marsi Mangan:Yeah, those are great shows. What is your dream vacation?
Whitney Untiedt:My dream vacation right now is anywhere on a beach with an infinite supply of pina coladas under an umbrella, Jimmy Buffett singing in the background.
Marsi Mangan:All right, that sounds great. Yeah, you can come to Mercy.
Whitney Untiedt:Under an Umbrella, jimmy Buffett singing in the background. All right, that sounds great.
Marsi Mangan:Yeah, you can come too, marcy. I hope you take it soon. I'm there, I hope we get it soon. Well, thanks again, Whitney. This was really great to talk to you.
Whitney Untiedt:Oh, it's always wonderful to talk with you too, Marcy. Thank you so much for asking me to join you for my three-peat podcast.
Marsi Mangan:We might make it a four-peat. Let's do it, just give us a chance, all right, thanks, thanks. If you enjoyed this interview with Whitney Untied, can you help us spread the word about May the Record Reflect? The easiest way to have impact and to support Nita's podcast is by subscribing to the show on Apple Podcasts or Spotify or wherever you listen to podcasts. You can also leave a review or a comment.
Marsi Mangan:The rating system on podcast platforms are among the very best way that other trial attorneys can find the interviews and intel we broadcast here on May the Record Reflect. If you'd like, you can also reach out to us directly via email at customerserviceatnedaorg. Whichever way you choose, we would love to hear from you because we are happy to have you listening. Please join us again next month as we keep this deposition ball rolling with Professor Veronica Finkelstein. We hope you enjoyed this episode and look forward to connecting with you on the next one. Until then, we at NITA wish you the very best of luck in your depositions, motions and trials. Happy lawyering. May the Record Reflect is a NITA Studio 71 production. NITA, we are advocacy, enhanced mentorship, reimagined. Welcome to the community.