Today I followed a link Governing had posted in a story. This link (http://blog.cleveland.com/metro/2011/03/identifying_photocopy_machine.html) led me to what appeared to be an excerpt from a deposition where an attorney was questioning an employee who seems to have worked in the recorder’s office in Cuyahoga County, Ohio. The proceeding is somewhat interesting because it is a good example of what can often happen in a deposition. One attorney is trying to get someone to answer or confirm their question. Because the respondent is not 100% sure of exactly what the questioning attorney means, he asks for qualification. The attorney asking the question does not really want to qualify his answer at first, but out of frustration eventually does. And then the respondent answers the question. It may seem cumbersome and humorous to some, but a deposition is not a casual conversation. The resulting document is based on a sworn legal statement.
I probably would have answered in a very similar manner as the person responding. I don’t think I have ever heard anyone ask to “photocopy” something so would have also asked for a clarification. But apparently the majority of people commenting would be much more willing to be informal and loose with their answers. They condemn the respondent in this exchange and feel he should have answered as if they were having the conversation in the diner down the street. And this is what the questioning attorney counts on. However, if you have actually ever gone through a deposition, most likely your attorney has told you that you need to be very careful in your answers. You are of course sworn to tell the truth. So you need to be very sure of your answers. You cannot in any way assume anything. You only answer exactly what was asked and do not offer additional information. If you are uncertain in any way about the question, you are supposed to ask for clarification. If you really don’t know something you are not to suggest or try to answer – you are supposed to simply say “I don’t know” or if you can’t remember, you are to answer, “I don’t remember.”
I had to do this during a particularly intense deposition that lasted about 3 or 4 hours with about 8 attorneys all asking me questions. The attorney representing the party with a lawsuit against our city kept asking me things that I really could not remember so that is exactly the answer I gave. “I don’t remember.” I was not going to try to come up with something I wasn’t sure about just to give a response. However, this particular attorney eventually got so frustrated, he also tried a similar tactic to the one in this transcript by asking me if I had something wrong with me because I could not remember things. He did eventually realize that one critical thing I did remember was the name of the company that installed the object that allegedly led to the death of his client – a company he had failed to discover and name in the lawsuit. Our city of course was dropped from the suit because we truly had nothing to do with the case and no involvement other than it happened in our city.
The key is if a government body is named in a lawsuit and an employee must be questioned, they are not obligated nor expected to be nice to the questioning attorney. He is not their friend, nor are they obligated to help him win his case. The person questioned is under oath and sworn to tell the truth. If that person needs clarification to do so, who is anyone else to question their responses? I would rather have my government representative answer as this person did being careful and sure of their answers. To do otherwise and be irresponsible and casual is absolutely not serving the public good.
Great post Pam. I first read about this from a Sunlight Foundation’s blog post last month. Unfortunately they also chose to go with condemnation, ridicule, and irresponsibility.
Thanks Josh – it’s just too bad that there is such a lack of understanding.