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Washington Lawyer

Legal Spectator: Lucius Friedli

From Washington Lawyer, May 2006

By Jacob A. Stein

spectator

I am writing this during a deposition. It is not the first time I have done it. When things get dull, I scribble to remain awake.

A lawyer’s needless questioning of a deponent, which is what is going on now, is not anything new in deposition practice. What is new is deposition technology. The court reporter in this room has a computer wired to her stenotype machine. As she types shorthand, the computer converts the shorthand into a finished transcript that appears immediately on her computer screen and on the computer screens of the lawyers in the room.

The lawyers have in front of them, in addition to their computers, big, thick, heavy exhibit books filled with hundreds of tabbed documents. Depositions, these days, are about the exhibits, the e-mail, the memoranda, the drafts leading up to the final document, computer printouts, stock quotations, and medical records. Each question and answer turns on an exhibit marked by the court reporter and placed before the witness.

Wires running from wall sockets to the computers cover the floor. Walking around the room without tripping requires the skill of an acrobat.

What would Lucius Friedli make of all this? That is the first question (as the lawyers here in the room like to say). And then there is the inevitable follow-up question. Who is Mr. Friedli?

I answer the questions in reverse order. Mr. Friedli was a court reporter. Mr. Friedli would not know what to make of all these wires, computers, and huge document books.

Mr. Friedli prospered at a time when there were no computers and no stenotype keyboards. He took it all down in Pitman shorthand.

He prepared himself at the deposition’s outset by placing antique fountain pens, Parkers and Watermans, and straight pens side by side. Close by are his two ink bottles together with an eyedropper used to inject ink in the antique court reporter pens. Three wire-topped shorthand pads and clean cloths to be used to wipe the ink off the pens and off Mr. Friedli’s fingers complete the preparation.

Mr. Friedli announces, “Ready.” Lawyers deferred to him. Mr. Friedli decided when the deposition commenced and when there would be a recess.

If the lawyers interrupted each other, he said, “One of you shut up. I cannot write with both hands.” If the bickering continued despite the warning, Mr. Friedli threw down his pen. This brought temporary civility.

The lawyers respected Mr. Friedli’s judgment concerning witness credibility. If Mr. Friedli thought a witness was lying, he gave a skeptical look at the witness. Lawyers took note.

Mr. Friedli had sympathy for young lawyers. He gave them advice. I represented a defendant who was sued for defamation. The plaintiff claimed that my client, the defendant, called the plaintiff a liar in front of fellow employees and this adversely affected his reputation among those who heard it. I was deposing the plaintiff, who in his answers repeated he was a person of good character. Mr. Friedli started shaking his head at these repetitious statements.

Mr. Friedli, after an hour of this, announced he needed a recess. He had the habit of walking the halls during a recess. As I walked past him, he said, “You are getting nowhere. Here is what you should do and let’s get this over. Have him repeat one more time that everybody thinks he is an angel. Then say this: ‘Mr. Plaintiff, your reputation is so good that none of the people who heard you called a liar believed a word of it.’ He will say yes. That is the end of his case. When you have it, shut up and let’s get this nonsense over with.”

If a lawyer or a witness said something scurrilous, Mr. Friedli would ask, “Do you want me to put this in the transcript?”

This deposition going on right now, as I sit here, began with the usual ritual. The lawyer taking the deposition says the following, in one version or another, to the witness: “Mr. Witness, if I ask you a question that you do not understand, please tell me and I will do my best to clarify the question. I am interested in your recollection of what happened. I am not here to trick you or to trap you into a wrong answer. If you wish to take a break, you can do so at any time.”

At a deposition I attended, the above speech was given to the witness. The lawyer, a cunning fellow, after putting the witness at ease with his statement, asked the witness a very tricky question. It was a question that summarized the witness’s prior testimony so that the witness would give the answer the lawyer wanted rather than the answer the witness intended to give.

The witness’s lawyer said to the witness, “Would you please leave the room?” Then he said, “When this deposition started and you said to the witness you didn’t intend to use any trick questions, the only person in this room [there were five lawyers in the room] who believed you was the witness. The rest of us were just waiting for you to do what you do so well. Now, I am calling the witness back in the room and I invite you to apologize to him.”

There was no apology, but the deposition ended quite abruptly.

James Byrnes (1879–1972) commenced as a court reporter without having attended high school. He learned Pitman shorthand and rode the circuit in South Carolina with a judge who saw something special in young Byrnes. He encouraged Byrnes to enter politics. Byrnes was elected to the House of Representatives and later the Senate. Franklin D. Roosevelt put Byrnes, this former court reporter, on the Supreme Court. There is much more to Byrnes’s career, but I have run out of space.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.