A Tale of Two Depositions
Maintaining Professionalism Under Pressure and Under Oath
Different legal professionals can use vastly different deposition techniques. John R. Markel shares two starkly different experiences with depositions, and details how to prepare yourself for the standard questions as well as how to cope with curveballs.
Three months ago, I appeared as an expert in two closely-spaced depositions on unrelated cases. The two depositions presented striking contrasts in the examining lawyersâ€™ style and approach. That contrast might serve to instruct those who seek to understand the expertâ€™s role in the dispute resolution process, or, like me, to think about the process from another perspective. In this article, I have simplified the underlying fact pattern to streamline the presentation. The two cases, while different in style and approach, were alike in that (1) the economic issues in both cases were rather unremarkable, and (2) the parties reached a settlement well before the trial date.
The first case was a contract dispute. Specifically, the dispute arose over the interpretation of a rather vaguely-worded valuation clause in a buy-sell agreement. I had been engaged by the plaintiffâ€™s lawyer, and my assigned task was to offer criticism of the valuation performed under the agreement. The stated goal was to get the valuation thrown out, and to start over with a new valuation.
â€śSo,â€ť I asked, â€śwho will be deposing me? What will it be like?â€ť
â€śHeâ€™s a good lawyer,â€ť was the reply. â€śA real pro. He will do a good job of it, get you in and out in a hurry, no tricks, no grandstanding, nothing like that. By the book. Just answer his questions, and it will be just fine.â€ťÂ
Well, the plaintiffâ€™s lawyer was right. The defendantâ€™s lawyer was a real pro, well-prepared and articulate. He went by the book, in that he was obviously after some universally-accepted objectives of a deposition:
- Gathering information from me
- Limiting the scope of any future testimony by me
- Confirming the plaintiffâ€™s theory of the case
- Evaluating my credibility
- Testing my possible cross-examination responses
- Moving the case forward to settlement
In the deposition, he went over my report, point-by-point. Specifically, did I have an opinion about the magnitude of value? â€śNo,â€ť I replied, â€śmy work was procedure-oriented.â€ť I alleged that professional standards were not followed. By extension, the conclusion of value expressed was unreliable.
What were my credentials? What qualified me to criticize another valuation? And, why did I stop short of coming to my own conclusion of value? My reply was that it was the prescribed scope of my assignment. I also sensed that the defendantâ€™s lawyer was trying to move the case toward settlement by demonstrating that the plaintiff had no alternative value conclusion.
In stark contrast, I found myself in another deposition a few days later. â€śSo,â€ť I asked, â€śwho will be deposing me? What will it be like?â€ť
â€śHeâ€™s unpredictable,â€ť was the reply. â€śSometimes he goes by the book. Other times, heâ€™s off the wall. Heâ€™s hard to read. Just answer his questionsâ€¦â€ť
And I say to myself, â€śIt will be just fine.â€ť
This case was a divorce; the husbandâ€™s lawyer retained me as an expert. It was a 15-year marriage with two children. The husband owned and operated a highly-successful local business. My assigned task was to determine the value of the business for equitable distribution.Â
Surprisingly, the business records had been well-maintained over a number of years. The business was well-established in its local market. As valuation assignments go in divorce cases, it was relatively simple and straightforward, without any of the usual complicating factors. The husband/owner was cooperative, and I was able to corroborate his significant representations to me by reference to outside sources.
The deposition started slowly, a lot of the usual questions about my qualifications, and my underlying assumptions for the valuation. The questions, though, were disorganized and poorly-worded. But then, from the wifeâ€™s lawyer, came the zinger.
â€śSuppose I told you that the husband physically abused the wife on a regular basis and was under a restraining order?â€ť I just looked at him across the table. â€śWould that fact change your opinion, or influence your conclusion in any way?â€ť I counted to five and just answered the question. â€śI formed my opinion last month with the information available to me then. It would be inappropriate to open it back up now. My opinion is already in my report and on the record.â€ť
I was surprised that the question was asked. This was certainly very different from the â€śjust-the- facts-, sir,â€ť non-emotional approach taken by defendantâ€™s counsel in the first case.
Of course, most of the non-economic facts of the divorce case had been withheld from me (as they should have been). But the question lingered in my mind. Would I have allowed myself to be influenced? Would I have accepted the engagement in the first place?
I remembered that the question by the wifeâ€™s lawyer was hypothetical; he never really said the abuse was real. I am not sure now if the hypothetical ambiguity registered fully with me in the deposition. Later, after the case settled, I asked the husbandâ€™s lawyer if the abuse allegation was true. â€śThatâ€™s not relevant,â€ť he said in a quiet voice. â€śYou donâ€™t need to know that, now or then, one way or another, to do your job. We all have a role to play in the process, however repulsive the allegations.â€ť
John R. Markel, ASA, CPA, ABV,CFF, is Managing Director of Markel Valuation, P.C., in Greenville, South Carolina. He can be reached at (864) 277-9921. He can also be reached by e-mail at firstname.lastname@example.org.