The movie gift that just keeps giving – is the showdown between Tom Cruise and Jack Nicholson in A Few Good Men. That moment on the witness stand when Jack defiantly declares his magnificence. Gets up to leave. And Tom says – sit back down. And Jack has to. Because he’s in court.
Mr. T, as you may recall , gave a rather similar performance in deposition last month. And then some. Because no judge was present.
I returned to my office. Waited awhile for the transcript. And during one of my afternoon runs with Nala, came up with a plan.
Mr. T is from Oregon though licensed in Washington. I decide to bring a motion to compel that is not your typical motion. Many areas of the law are quite form based. Not so with tort law. Too many variables. It’s fun that we can be creative and not complete paperwork by rote.
The motion asks the Court to put the burden on the defendant insurance company to produce Mr. T for another deposition at their expense and to require the production of his time records and any other missing file records before the lawsuit was brought. This type of motion requires that I show Mr. T’s conduct to have been evasive in the deposition. Here are three short examples :
- Q Why haven’t you done anything to prepare for today?
- LEID: Object to the form. Go ahead.
- A Because I’m a fact witness, and I don’t prepare for depositions when I’m a fact witness. You haven’t asked me to prepare for anything, and I’m not under an obligation to prepare anything.
- Q Okay. So you are just going by your memory?
- A No.
- LEID: Object to the form. Go ahead.
- A So if you ask me a question, I’ll do my best to answer it, if I recall it. If you show me a document, I’ll answer to the best of my ability about what the document is and my involvement in it.
- Q Do you intentionally not prepare when you’re called as a fact witness?
- A I don’t understand your question. I don’t know what you mean by that.
- Q Is there any mention of Mr. V and November 29 in there?
- A Okay, I just read the paragraph. The document speaks for itself. This paragraph is about Mr. R’s effort to secure a recorded statement.
- Q Why didn’t you include Mr. V’s –
- A You’re asking me to remember — You’re asking me to speculate as to why that wasn’t put in there in August of 2011. Is that your question? I have no idea.
- Q All right. And then on December 5, you wrote that Mr. S — You can read it if you want. Why don’t you read it.
- A Here’s what I would generally say: This is an exhibit; it speaks for itself. I don’t have a recollection of this. I’ve never found it effective to ask someone to discuss a document that’s an exhibit, that they’ve said is an accurate exhibit. I think it’s an incredible waste of time. And I don’t really want to sit here for three hours and have you go over documents like this, because you’re wasting time. I’m not going to elaborate on this because I cannot elaborate on it. It was four years ago. The document was produced by my office, okay.
- Q What I find to be an incredible waste of time is for me to come down here and hear that you didn’t even look at your file to prepare for your deposition. And then when I show you a document, you don’t even answer the questions because you find that to be a waste of time. So I think we’re at an impasse as to who is wasting whose time.
- LEID: Objection. Is that a question, Counsel?
- (BY MS. KOEHLER:) Did you not get your own file documents from your own counsel?
- A Go ahead and ask your next question.
- Q Were you given your file documents before today?
- LEID: Object to the form.
- A Go ahead and ask another question.
- Q That is my question.
- A I’m not going to answer that question.
- Q On what basis?
- A I’m just not going to answer it. You’re welcome to call the judge and have her require me to answer it, if you’d like.
And so, that’s exactly what I did by motion. And what the Judge Ordered.
The motion is attached here.CompelTMtn
The order is attached here. CompelTOrdr
Photo: Nala and the reason running helps with thinking things through.