What It’s Like to be Questioned by Lawyers: Take an Excedrin Before Reading

By Jack Limpert

One of the interesting trials by fire that a journalist may have to go through is the deposition, part of the legal process of discovery that takes place after a lawsuit is filed. Once you’ve been sued—for defamation, invasion of privacy, or some other alleged wrongdoing—you will have to hand over all kinds of stuff, including emails. You’ll have to answer  written questions (interrogatories) and you’ll have to sit in a conference room with lawyers and answer questions under oath (depositions).

You may think a deposition would be a sensible, rational Q and A to find out what you know about the offending story. You may think you don’t have all that much to say so it shouldn’t take long. To give you an idea of what a deposition is like, here’s an excerpt from one I went through after our magazine was sued for allegedly invading someone’s privacy. The story was written (with the help of one of our editors) by the ex-wife of a somewhat prominent man. In the story the ex-wife quoted from letters the man had sent her early in their relationship. The lawsuit was based largely on the ex-wife’s quoting from the letters, with the suit alleging that the writer of the letters (the ex-husband) owned the copyright to the letters. Thus, the ex-husband said, the ex-wife, and the magazine, had no right to publish quotes from the letters he had written and sent to the woman.

The transcript of the deposition runs 200 pages. The questioning took place in a conference room in the offices of the law firm representing the plaintiff. Around the table were four lawyers and two associates representing the plaintiff; two lawyers representing the ex-wife; one lawyer representing the magazine and me; the ex-husband, who was the plaintiff; the ex-wife, also a defendant; and me, the magazine’s editor. To begin the deposition, you swear to tell the truth under penalty of perjury.

Starting on page 39 of the transcript of the deposition:

Plaintiff’s lawyer: Up to the time of publication of this story, were you aware of the existence of copyright laws in the United States?

Our lawyer: Objection.

Ex-wife’s lawyer: Objection.

Our lawyer: Whatever that means.

Me: Yes.

Plaintiff’s lawyer: And did you have an understanding of who owned the copyright in a written work, up to the time of publication?

Our lawyer: Objection.

Ex-wife’s lawyer: Objection.

Me: If somebody—

Our lawyer: Well, wait a minute. He has a question, and the question, sir, was: Did you have an understanding before publication of — whatever? If you can remember it, please answer. Did you have–yes or no? Did you have an understanding?

Me: Yes.

Plaintiff’s lawyer: What was your understanding?

Our lawyer: I object. Now, he asking your understanding. This is relating to what may be legal things, so I caution you, Mr. Limpert, as to whether you can now, here, on this day, be able to separate in your mind–I suggest to you it may be difficult–all the discussions you may have had with me in the last  months and be able to tell–which is fine if you can do it–tell the lawyer what you knew as of the date of publication relating to a complicated area of the law, which most lawyers, I suggest, couldn’t answer. If you can answer it, you do so.

Plaintiff’s lawyer: Just so you understand, Mr. Limpert–and your lawyer will correct you, I’m sure, if I misstate–he’s not telling you that there anything improper with the question.

Our lawyer: Oh, I agree with you.

Plaintiff’s lawyer: And so I’m entitled to know what your understanding was.

Our lawyer: He’s not wrong.

Me: Well, my understanding of copyright–if somebody wrote an article or created some public work, that they had some rights to that, but I–that’s basically it.

Plaintiff’s lawyer: Did you have an understanding as of the date of publication of the story as to whether there was any copyright protection for letters that somebody wrote to another person?

Our lawyer: Objection.

Ex-wife’s lawyer: Objection.

Our lawyer: I don’t understand. Do you understand? I mean, he’s already told you what his understanding was, so I don’t know how–but, anyhow, it may not be an improper question, so you can answer.

Me: I lost track of the question. If you can ask if again.

Plaintiff’s lawyer: Right. As of the date of publication, you’ve told us what your understanding of copyright was–

Me. Right.

Plaintiff’s lawyer: –and you mentioned a number of items. So my question is whether you you had an understanding of whether the copyright protection also applied to letters that someone authored.

Ex-wife’s lawyer: Objection.

Our lawyer: Objection.

Me: I think it would depend on how those letters were used.

Plaintiff’s lawyer: What are the–

Our lawyer: Now, wait a minute. He’s just asking you–let me try to focus on where he’s going with it. And it’s not improper, so I’m not–I just want to make it clear. It’s subtle, and it relates to legal things. I think he’s asking you legal questions, but he’s framing them in, “Did you have an understanding,” which is a good lawyer’s way to getting away from a legal question. He’s asking you for your understanding, as of publication, relating to these things. That’s what he’s asking. He’s permitted to do that.

Me: Legal understanding?

Plaintiff’s lawyer: No.

Our lawyer: No, your general understanding, but it’s a legal question masked that way.

Plaintiff’s lawyer: Well–

Our lawyer: It’s a good, tough, hard question.

Plaintiff’s lawyer: I just want to know what you understood.

Our lawyer: Right. And do you understand anything about that? I mean, you may not have. Can you separate today what you understood then, at the end of September last, whether you had such an understanding? Because you already told us you didn’t have an understanding. In your answer about what you understood about the rules and all that stuff–which I suggest 99 percent of the lawyers probably don’t  even understand–you gave an answer. But now he’s directing you to the letters, as to whether you then had such an understanding as to whether letters–I don’t know how you can answer it, but if you can, I’m not instructing you now to answer.

Me: No, I have no legal understanding.

Plaintiff’s lawyer: Okay, but what about just a general understanding, as somebody who was editor of the magazine?

Our lawyer: Did you have an understanding–of what?

Plaintiff’s lawyers: Of whether the copyright protection applied to letters.

Our lawyer: Objection.

Ex-wife’s lawyer: Objection.

Our lawyer: Did you? if you know–if you can recall whether you had such an understanding, one way or another.

Me: I had an attitude and–

Our lawyer: Well, he’s not asking you about attitudes. Don’t–he’s asking you a very precise, proper question.

Me: I didn’t have a legal understanding. I don’t know what other kind of understanding–

Plaintiff’s lawyer: What were your attitudes, Mr. Limpert?

Our lawyer: What do you mean, what were his attitudes?

Plaintiff’s lawyer: He just indicated that he had attitudes about what the applicability of copyright protection might or might not be to letters.

Our lawyer: I don’t know if that’s what you meant when you uttered the word “attitudes.”

Plaintiff’s lawyer: So I want to know what you attitudes were. It’s really a straightforward question.

Me: Well, I didn’t have general attitudes about this. I dealt with the story, but I did not sit in my office and have attitudes about this.

Plaintiff’s lawyer: Did you have an attitude or belief at the time of publication of the story as to whether copyright protection applied to the letters that [the plaintiff] had written?

Our lawyer: You’re mixing a legal question–

Me: Is that a legal question?

Plaintiff’s lawyer: No.

Our lawyer: Well, it certainly sounds like it. You’re asking whether copyright protection extended–that sounds like a legal question to me.

Plaintiff’s lawyer: I’m using copyright protection as Mr. Limpert defined it in his earlier answer, his understanding of what it was.

Our lawyer: I don’t understand the question.

Me: I understand copyright protection is a legal question.

Our lawyer: So do I.

Plaintiff’s lawyer: You testified earlier that you had an understanding of what the copyright laws provided. You told us what y our understanding was. Do you remember that?

Our lawyer: No, he didn’t answer that. He didn’t say what his understanding of what the laws were. It was his understanding generically, but he–

Plaintiff’s lawyer: That’s fine, that’s fine. We can work with that.

Our lawyer: All right. I mean, I think–am I misquoting you?

Plaintiff’s lawyer: Whatever Mr. Limpert said–

Our lawyer: What you said, he said.

Plaintiff’s lawyer: –he said, and we’ll all read it someday.

Our lawyer: Hopefully, it’ll be accurate.

Plaintiff’s lawyer: So question is–whatever you said about your generic understanding of copyright was, my question is what your attitudes were as of the time of publication of the story regarding the applicability of copyright to the letters [the plaintiff] wrote, if any.

Our lawyer: I can’t—

Ex-wife’s lawyer: Objection.

Our lawyer: Do you understand the question? Can you possibly answer that?

Me: I didn’t have any legal understanding.

Our lawyer: All right, he’s answered the question. Next question.

Plaintiff’s lawyer: Well, no, that’s not what the question is  Mr. Limpert, and I’m not going to let you off the hook quite that easily.

Our lawyer: Well, ask it again. I thought he answered it.

Plaintiff’s lawyer: The question isn’t–I’m not asking you, as a lawyer, what your opinion was about this law, because I recognize that you’re not a lawyer. What I want to know is, as a layperson, as editor of a magazine, whether you had an understanding about the applicability of copyright, if any, to the letters that [the plaintiff] had written.

Our lawyer: Do you recall whether you had such an understanding back then?

Me: No.

Plaintiff’s lawyer: Did you ever think about whether copyright had any bearing on whether the magazine could publish the letters that [the plaintiff] had written?

Ex-wife’s lawyer: Objection.

Our lawyer: Do you understand the question?

Me: No, i thought about whether it was fair and appropriate, but I did not think in legal terms.

Plaintiff’s lawyer: Okay. And when you say you thought about whether it was fair and appropriate, what did you mean?

Me: Well, I thought that–if [the ex-wife] had the right to to tell her story, I thought those letters were crucial to her telling her story and to the reader understanding the story.

Plaintiff’s lawyer: When you say that you thought about whether it was fair and appropriate, did you think about whether [the ex-wife] had a right to have those letters published as part of her story?

Ex-wife’s lawyer: Objection.

Our lawyer: Objection to the right. I don’t know where that comes from. But it’s not an improper question, Mr. Limpert.

Me: I’m not sure I understand how that’s different from the question you asked.

Plaintiff’s lawyer: Well, why don’t you read the question back, please, the pending question.

(The reporter reads back the record.)

Me: By right, do you mean a legal right?

Plaintiff’s lawyer: Yes. Did you think about that, whether she had a legal right?

Me: I did not think in legal terms.

Plaintiff’s lawyer: Did you think about whether [the plaintiff] might be entitled to stop the magazine from publishing the letters he had written?

Our lawyer: Objection.

Me: No.

Plaintiff’s lawyer: Did you discuss with anyone whether [the plaintiff] might be entitled to stop the magazine from publishing the letters?

Our lawyer: Objection.

Me: No.

Plaintiff’s lawyer: Did you discuss with anyone whether [the plaintiff] might be entitled to stop the magazine from publishing the article?

Our lawyer: Objection. This is before publication. Why would [the plaintiff] stop the publication? It was a good story.

Me: I don’t recall–

Our lawyer: You’ve answered it.

—-

What you’ve read is 11 pages of a 200-page deposition, showing in one case how the legal system worked. Things moved slowly as the lawyers argued and made frequent objections, leaving the journalist to try to read the signals and avoid saying something that the opposing lawyers could use against you in front of a jury. Spend two days in a law firm’s conference room being deposed and you feel you’ve entered a parallel universe, one where the world of journalism seems far away.

Why do lawyers behave this way? In this lawsuit, was all the arguing and objecting just lawyers being lawyers? Why were there four lawyers and two associates on the plaintiff’s side of the table—was that a message that we’re really coming after you? Was our lawyer trying to disrupt things, to make sure the questioning never had any flow, making the whole process messy and hard to follow? Was our lawyer also sending a message to the plaintiff: This lawsuit is going to be very slow and contentious and expensive.

Over the years when I was in conference rooms with lawyers and things were moving slowly, I’d sometimes try to figure out how much money was changing hands. Let’s say at the time of this deposition I was making $100,000 a year, or about $50 an hour. Let’s say our lawyer was billing us $250 an hour. The plaintiff had four lawyers and two associates: Let’s say it was costing him $1,200 an hour. If my deposition ran for two days, the plaintiff was looking at $20,000 in legal costs. At what point does he think that maybe he should take a $100,000 settlement and a clarification and be done with it?

What does going through a lawsuit do to a journalist? Does it make you think twice before taking on a story that might make someone angry enough to sue?

This lawsuit asked for a total of $50 million, asking me to pay $10 million of it—$5 million in actual damages plus $5 million in punitive damages.  The case was settled shortly before trial; as part of the settlement there was a confidentiality agreement that prevented any disclosure of the amount of money that changed hands.

Comments

  1. For me as a litigating lawyer, this was embarrassing to read. Apart from whether anybody’s tactic here was effective, I think you’ll find, if you get sued now :-) , that civil procedure rules would bar this kind of examination/interruption. I’m guessing this suit was at least 15 years ago. Is my guess correct?

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