Tuesday, August 10, 2010

Fun With Civil Procedure

Rule 32 of the Federal Rules of Civil Procedure allows depositions to be used by an adverse party "for any purpose". A clever lawyer read that language literally, giving us this colloquy (quoted in Wright and Miller, Federal Practice and Procedure Sec. 2141 n. 1).
The Court: Next witness.
Ms. Olschner: Your Honor, at this time, I would like to swat Mr. Buck in the head with his client's deposition.
The Court: You mean read it?
Ms. Olschner: No sir, I mean swat him in the head with it. Pursuant to Rule 32, I may use this deposition for any purpose, and that is the purpose for which I want to use it.
The Court: Well, it does say that. (pause) There being no objection, you may proceed.
Ms. Olschner: Thank you, Judge Hanes. (Whereupon, Ms. Olschner swatted Mr. Buck in the head with the deposition).
Mr. Buck: But, Judge....
The Court: Next witness.

You never know what new trial tactics will emerge if you read the rules closely enough. That's a tip, kids, write it down.


N. Friedman said...

I defended an expert witness in a deposition some years ago. After giving my brother counsel a hard time, he called a recess. When he came back, he posed a hypothetical scenario which involved him walking around the table and punching my lights out.

Aside from feeling that my defense strategy had unnerved brother counsel, I cried foul and insisted that he strike the question. He refused and I told the witness not to answer the question.

The other members of my then firm, hearing the story, told me that I should not merely have objected but, instead, have also ended the deposition then and there and moved for sanctions. However, the case settled soon thereafter and in my client's favor, so I let the matter go.

Andrew said...

Thanks for this. I'm sitting here cracking up uncontrollably, at the same time realizing how deeply this confirms my self-image as an uber-law-nerd. I needed a good, nerdy laugh to distract myself from never-ending Note editing.

troll_dc2 said...

The range of thinking here can be applied to other contexts as well.

For example, the Bible condemns the practice of men lying with another man. But it does not go further. Hence, it can be read as not condemning gay sex so long as it is performed standing up.