Years ago on morning television, sports commentator Warner Wolf, while discussing the previous evening’s victory or debacle, availed himself of his chosen medium. “Let’s go to the videotape!” Mr. Wolf cried. The tape ran, showing the events as only the camera can.
I thought of Warner Wolf last week. I wished I could mimic his clarion call for visual evidence. I was at a deposition. My opponent asked a question of my client. As I was limited to objecting to the form of the question, I did that.
My opponent retaliated. He accused me, on the record, of objecting in a “grandiose” way. This wasn’t the first time he had taken a swipe at my demeanor. In open court, he asserted that I was “getting all excited” during oral argument. During a pretrial hearing, he commented to the judge that I had become “really emotional,” and urged me to “calm down.” I don’t recall feeling disturbed at the time, as the entry of scheduling orders does not ordinarily provoke me. As he had been making these innuendoes for some time, I was particularly careful to maintain a neutral tone.
At the deposition he went further. He claimed I was “gnashing [my] teeth.”
It was useless to protest. I could waste time arguing, or going off the record. I knew perfectly well, as did the deponent and the reporter, that I was no more gnashing my teeth than I was waxing my kitchen floor. I began to imagine the transcript of any attempt to recover from this attack.
– Harp music to introduce dreaming or past recollection –
MS. GOODUSKY: I am not gnashing my teeth.
OTHER LAWYER: Yes, you were.
MS. GOODUSKY: I was not!
OTHER LAWYER: You were, too!
MS: GOODUSKY: Was not!
OTHER LAWYER: Were so!
MS. GOODUSKY: Madam court reporter, was I gnashing my teeth?
COURT REPORTER: I don’t know, Ma’am. I was busy transcribing.
OTHER LAWYER: You should really calm down. Take a chill pill.
MS. GOODUSKY: Thank you for sharing.
OTHER LAWYER: See! She’s doing it again! Gnashing her teeth! That’s totally unprofessional, counselor. Let the record reflect that my opponent is threatening me with her paper cup of water. Help! Help!
If I had videotape, I thought bleakly, this would not have happened.
Later, sharing the demoralizing recollection of the deposition with some colleagues, they proposed a responsive strategy. Here is how that transcript would look:
– Encore harp music–
OTHER LAWYER: You keep making these grandiose objections. And you are gnashing your teeth again!
MS. GOODUSKY: Please let the record reflect that my opponent’s big red wig is askew.
OTHER LAWYER: Big red wig? What are you talking about?
MS. GOODUSKY: That striped suit is really, ah, unique. It must be difficult to walk in those overly large shoes, though. Do you ever fall down?
OTHER LAWYER: These are Bass Weejuns! Are you making fun of my feet?
MS. GOODUSKY: Aren’t you hot wearing all that white pancake makeup?
OTHER LAWYER: Please let the record reflect that I am wearing a grey pinstripe suit, and no makeup of any kind.
MS. GOODUSKY: You’re getting awfully excited, counselor. And your voice is a little muffled. Could you take that rubber nose off, please, so that the record is clear? I’m just trying to help our court reporter.
OTHER LAWYER: I am going to seek sanctions.
MS. GOODUSKY: I do like the polka dot tie, though. It’s very cheery. Ow! Ow, you’re hurting me! Let go of my nose!
Let’s just say that, even without the unquantifiable advantage of video evidence, I am looking forward to the next deposition.
Amy F. Goodusky, a former paralegal, rock ‘n’ roll singer and horseback riding instructor, is of counsel at O’Brien, Tanski & Young in Hartford.