A wise man once said, “when it is you vs. the world, bet on the world.”

Patterson: “I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like — ”

Patterson admits he DOES know what a photocopier is right there so why didn’t he just say that when asked right off the bat if he knows what one is. Instead he rambles on about different types…

Deponent was answering the question “Do you understand what that term means in common parlance.” Here “that term” occurs a bit earlier and refers to “photocopying machine” (not “photocopier” as you incorrectly claim). Patterson answers by saying he does not know what “common parlance” means. That is what Patterson meant when he said “I’m sorry, I didn’t know what that meant.” That is, the “that” at the start of the answer referred to the phrase “common parlance”, not “photocopying machine”.

As to the photocopying machines, Patterson is explaining that he knows what they are but that the term is ambiguous: there are “different types”. He is trying to explain why he asked plaintiff’s lawyer for a definition of “photocopying machines” before answering a question about them: there were multiple competing definitions of the term at issue in the case.

Deponent’s answer is thus a best effort attempt to answer the question of whether he knows what a photocopying machine is in common parlance. Patterson “knows” what one is, but he doesn’t know which of several competing definitions at issue plaintiff’s lawyer had in mind.

Had deponent responded “yes I know” then it would have falsely suggested deponent knew what plaintiff’s lawyer meant when he asked about photocopying machines. But deponent could not have known what plaintiff’s lawyer meant – there were competing definitions at issue.

Conversely, had deponent responded “no I don’t know” then it would have falsely suggested he had no idea what photocopying machines were.

So deponent must, to answer this question fully (whether he knows what a photocopying machine is in common parlance), try and explain the concept of semantic ambiguity of the term, which he does.

I don’t even see what’s controversial about this explanation and why deponent’s answer would be objectionable.

I also don’t understand, as I’ve said before, why deponent, and not plaintiff’s lawyer, is the one being criticized. Plaintiff’s lawyer could have ended the deposition’s digression into the epistemology of lexicographic ambiguity at any time simply by answering deponent’s request for a definition of “photocopying machine”. As soon as plaintiff’s lawyer finally gives a definition, near the end of the transcript, deponent immediately answers the original question. It was the plaintiff’s lawyer, not the deponent, who is prolonging the deposition by not answering a simple question.

Patterson admits he DOES know what a photocopier is right there so why didn’t he just say that when asked right off the bat if he knows what one is. Instead he rambles on about different types…

Jay: That was being evasive.

asdfasdf: When you say “evasive,” what do you mean?

Jay: Let me be — let me make sure I understand your question. You don’t have an understanding of what ‘evasive’ means?

asdfasdf: No. I want to make sure that I answer your question correctly. When you say “evasive” what do you mean?

Jay: Let me be clear. The term “evasive” is so ambiguous that you can’t picture in your mind what being evasive is in a courtroom setting?

asdasdf: I just want to make sure I answer your question correctly.

Jay: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in a courtroom setting what evasive is, I’d like the Overlawyered readers hear you say so.

Cavanagh: Objection

Jay: … read you write so.

asdasdf: I just want to make sure I answer your question correctly.

Cavanagh: There’s different definitions of evasive , Jay. I understand what his objection is. You want him to answer the question, but I don’t think it’s fair.

Jay: It’s not fair?

Cavanagh: It’s not a fair question. Evasive can mean different things.

Jay: You can’t answer because you say that ‘evasive’ means different things?

Cavanagh: That’s what’s at issue in the case, Jay.

Jay: Not in my judgment. Do you understand what evasive means? If you don’t know what that means in a courtroom setting, please tell the court you don’t know what it means.

asdasdf: I would like to answer your question to the best of my ability.

Jay: I’m asking you to answer that.

asdasdf: So if you could explain to me what you mean by —

Jay: I’m not going to do that because I want you — I want to establish on the record that you really don’t know what it is. I want to establish that. Now, do you know what it is or do you not know what it is? Do you understand what that term means in common parlance or not?

asdasdf: Common parlance?

Jay: Common language.

asdasdf: I’m sorry. I didn’t know what that meant. I understand that there there are different definitions of words so when you say evasive, do you mean being evasive just like — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “evasive” instead of trying to make me feel stupid.

Jay: If you feel stupid, it’s not because I’m making you feel that way.

asdasdf: I have self-confidence and I have no problem.

Jay: I don’t think you’re stupid. You are just a trial lawyer.

asdasdf: I think — I don’t have any problem answering the question.

Jay: I think you’re playing games with me.

Cavanagh: Jay, the word “evasive” is at issue in this case, and you’re asking him whether something is or isn’t evasive, which is a legal conclusion —

Jay: This isn’t Merriam-Webster court. There’s no statute that defines — where I’m asking him to define a word for me. I’m asking — I want to find out from a layperson’s perspective, not an engineer’s perspective, not a technician’s perspective, but from — I have an idea. How about this: Have you ever heard the term “evasive” used in the Recorder’s office by anybody?

asdasdf: Evasive? I’m sure in the time I’ve been there someone has used the term.

Jay: And have you ever heard them use it in referencing a particular way of avoiding a response within the Recorder’s office? By way of example, “why you are being evasive, just answer the damn question?” That’s an example of office parlance.

asdasdf: That particular terminology I’ve not witnessed.

Jay: What was the context that you’ve heard the term “evasive” used in the Recorder’s office?

asdasdf: I’m sure it’s been used. I didn’t say I remembered a specific instance.

Jay: All right. But you have a general understanding that people have used the term “evasive” within the Recorder’s office in terms of something that could be done there; is that true?

asdasdf: I’m sure it’s been used. I don’t remember a specific instance or how it was used. I’m sure it’s been used.

Jay: Do you have a dictionary?

asdasdf: No.

Jay: Does anybody there have a dictionary?

asdasdf: Yes.

Jay: Have you ever looked up the word ‘evasive’ in a dictionary?

asdasdf: No.

Jay: Have you ever Googled the term on the computer? Do you have machines there where I can type in a term on the computer screen, push a button or two, and on the screen will come answers? Do you have such a machine?

asdasdf: Yes, sir.

Jay: What do you call that machine?

asdasdf: Xerox.

Jay: Oy vey. Okay, how about being deceitful, tricky, ambiguous, cagey, casuistic, casuistical, cunning, deceptive, devious, dissembling, elusive, elusory, equivocating, false, fugitive, greasy, indirect, intangible, lying, misleading, oblique, prevaricating, shifty, shuffling, slippery, sly, sophistical, stonewalling, unclear, or vague?

asdasdf: You mean it’s more — do people say evasive instead of candid and precise?

Jay: Oh, I’ve have enough of this…

Canagh: Objection.

That article contains the odd comment “that doesn’t mean the witness can avoid answering the question of what “photocopying” means to him…. Hence ten pages of fighting over what “photocopy” means.”

Although rarely directly stated, there seems to be a strong suggestion in that article, in blog posts here, and in other blog posts that the deponent was evasive and that there was some argument about what “photocopy” meant.

In fact, the deposition is not about what “photocopy” means. The argument in the deposition is about whether deponent could ask plaintiff’s lawyer what he meant by “photocopying machine” when he asked a question about it. After that, plaintiff’s lawyer asks a bunch of questions irrelevant to that definition, like whether deponent had heard the term in the office. The moment plaintiff’s lawyer defines “photocopying machine”, deponent answers the question. In particular, nowhere in the transcript does anyone argue or propose a different definition.

Olson, let me ask you a question. Clearly, deponent has come in for a lot of criticism here. Is there any ONE question during that transcript that YOU believe the deponent answered in way that seemed evasive or improper in any way?

To me, the deponent seemed candid and precise. I understand why laymen reading the transcript would get irate, but I don’t understand why lawyers experienced in depositions could read this, knowing what they know about deposition instructions, and believe deponent acted evasively.

The deponent’s initial response was to ask plaintiff’s attorney what he meant by “photocopying machine”. Since an issue in the case was what “photocopy” meant, why would the plaintiff’s attorney “not believe his ears”. It seems like the plaintiff’s attorney would have expected to be asked which definition of photocopy was in use.

http://www.loweringthebar.net/2011/03/followup-on-the-great-photocopy-dispute.html

Bob