The question comes up during a deposition, and nearly ten pages of court transcript follow. [Cleveland Plain Dealer] And: Lowering the Bar has some significant background on the case.
The question comes up during a deposition, and nearly ten pages of court transcript follow. [Cleveland Plain Dealer] And: Lowering the Bar has some significant background on the case.
32 Comments
Xerox has spent millions of dollars making sure that their brand name DID NOT become a generic term for photocopiers. Mr. Patterson comes off like the Northern end of a South bound jack ass.
I felt like I was reading the legal equivalent of the Abbott and Costello routine “Who’s on First”.
Two things on Xerox: When the deponent said he had never heard a request for photocopies, I thought he should be asked if anyone ever requested a Xerox copy.
For someone so worried about properly defining the machine in question, it strikes me hilarious that the deponent insists on an incorrect identification.
Finally, when deponent says ” there are different types of them 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”, his attorney says “Good Point”
As if when asked if he had a car, he would be unable to answer without knowing whether the questioner meant a specific fuel type.
If I was the judge, I would have chewed his butt for wasting the court’s time and would have considered a contempt charge.
We are not amused.
It seems to me that the witness was trying to avoid answering a question and was using this as a delaying tactic. What other purpose could there have been? It’s hard to believe that a person in a position of responsibility could be ignorant of what a photocopier, no matter what it’s called, is.
Hay, commentators, some things are just funny.
JLSESQ72 03.21.11 at 9:15 am
“Hay, commentators, some things are just funny.”
hay |h?|
noun
grass that has been mown and dried for use as fodder.
hey |h?|
exclamation
used to attract attention, to express surprise, interest, or annoyance, or to elicit agreement : hey, what’s going on here? | | hey, don’t I know it!
• hi; hello : hey, how you doing?
Next they should ask if he blows his nose on Kleenex, plays with Lego, and uses Velcro to fasten his jacket pockets.
*****
Although I can see the strategy, here. The case is entirely focused around the availability of photocopies. Therefore it must first be established that a photocopy machine was present. If no such machine is present then it isn’t the office staff’s fault that photocopies were not provided, Q.E.D.
Another one–does he/she put milk, butter, fruits, etc. into a refridgerator and calling the device involved, a “Frigidaire”.
Wait a minute: The person being deposed is the “acting head of “information technology” ” for the county…..and he has NEVER heard the terms “photocopy” or “photocopier” used (or “can’t recall hearing it”)?!?!?! I hope he didn’t become the permanent head of that department!!
Now, had it been the other way around and he had been, say, in his 20’s or 30’s, and he had not heard of “xeroxing” ….. Barely (but more) believable.
In a deposition, deponents are supposed to answer questions fully and truthfully. Therefore, deponents can fairly ask terms to be explained. When deponent did that, plaintiff’s attorney, rather than defining the term, started attacking deponent.
Here, many of the commenters and Olson are misrepresenting what happened at the deposition:
(1) Olson claims that the question “What is a photocopier” came up during the deposition. The actual transcript shows that the question was what a “photocopying machine” is, not a “photocopier”. “Photocopying machine” is an obscure phrase (only 145,000 google hits); by contrast “photocopier” is a common term (over 4 million google hits). So Olson misrepresents to deponents detriment the question at issue.
(2) Bumper’s comment repeats the confusion between “photocopier” and “photocopying machine”, as if he was relying on Olson’s mischaracterization of the transcript testimony and not the transcript.
(3) “Frank” claims “When the deponent said he had never heard a request for photocopies”. But in fact the deponent said he was sure someone had used the term “photocopy” but could not remember a specific instance, or of someone saying “can you photocopy that for me.” In fact, I doubt most office workers could recall a specific instance of someone using the term “photocopy” in that manner, particularly since usually people ask for “copies” or “xeroxes” and not for “photocopies”; and most people don’t remember the exact wording of such inconsequential conversations anyway. Why is it remarkable that a deponent could not remember ever been asked or cannot remember a specific instance of someone asking for “photocopies”, an unusual term for a common thing (“copies” or “xeroxes” or “printouts”)?
(4) Frank later says that deponent’s attorney said “Good point” to deponent’s analogy about cars. But that never happened. It was the plaintiff’s attorney, who was questioning deponent, who said “Great point”. Frank’s whole insult about deponent’s attorney makes no sense.
(5) Melvin H. repeats that the deponent has “NEVER heard the term photocopy or photocopier used”. This never happened. Deponent was asked if he had heard either term used, but deponent was nonresponsive, saying he was “sure someone has used the term [photocopy]” but could not recall a specific instance. Deponent never said one way or the other about photocopiers.
All the other commenters had no substantive points at all, just emotional reactions.
It’s amazing to me how so many people here, including Olson, can misread such a simple transcript, and why here and elsewhere on the web so many people are attacking deponent so sloppily.
Wrong, and wrong. In common English “the question comes up” may imply a difference of opinion is aired, but does not imply it is introduced in the form of a question, let alone one precisely tracking a particular format. That’s the nuance that distinguishes “comes up” from “is asked.”
Which makes it utterly beside the point whether the phrase “photocopying machine” or “photocopier” was introduced first. As asdfasdf does not mention, it is of course the Cleveland Plain Dealer that in the first line of its story summarizes the gist of the argument as being over the question “What is a photocopier?” a perfectly fair wording I and others have been happy to pick up and repeat. And of course my brief post made no attempt to suggest how (if at all) blame for dragging things out might be apportioned between the various actors.
I think we may now have some inkling, though, of how the pseudonymous “asdfasdf” conducts a deposition. All that’s missing is a bristling, “May the witness be reminded that he is under oath!”
Olson writes “In common English ‘the question comes up’ may imply a difference of opinion is aired, but does not imply it is introduced in the form of a question, let alone one precisely tracking a particular format. That’s the nuance that distinguishes “comes up” from “is asked.'”
The question of “what is a photocopier” neither came up nor was asked in the deposition. And it certainly did not come at the beginning of the transcript, when the plaintiff’s lawyer asked deponent what a “photocopying machine” was (not that Olson claims that “nearly ten pages of court transcript follow).
So the distinction Olson is making between whether “what a photocopier is” was actually asked or merely came up is irrelevant, because neither actually happened.
If you read the transcript, what actually happened is that plaintiff’s attorney used a highly unusual, legalistic term “photocopying machine” rather than the standard “copier” or “photocopier” or “copy machine”. When deponent asked for clarification of the term, instead of the attorney just provoiding the definition, the attorney launches into the ten page digression about where and whether the deponent had heard the term “photocopy”.
If Olson disagrees, why not quote the precise place in the transcript Olson refers to where the “question” of what a “photocopier” is “comes up”, as he claims?
Olson is correct that he did not directly impugn the deponent, although nearly all the commenters and other reportage did.
Really, there are two stories.
First, is plaintiff’s attorney’s gamesmanship. He asks a question using rarefied, legalistic language “photocopying machine” instead of a colloquial expression. Then, when asked for clarification, plaintiff’s attorney refuses to provide it (asking to rely on “common parlance” for a legalistic term, which does not exist) and launches into irrelevant and imponderable questions, like the context in which deponent had heard the term “photocopy” in an office. (Most people cannot remember specific contexts in their office where many terms are used, and that fact has nothing to do with the meaning of the underlying term).
The second part of the story is how the press and blogosphere seemed to have been taken in by these deposition techniques by the plaintiff’s attorney. They treat deponent as evasive for just trying to answer accurately bizarrely worded or bizarre questions. By changing the legalistic wording of plaintiff’s attorney’s actual question about “photocopying machine” to one about a “photocopier”, Olson is playing into the plaintiff attorney’s strategy of making deponent seem evasive when in fact it was the attorney’s questions’ phrasing that was the problem.
If you read the transcript, what actually happened is that plaintiff’s attorney used a highly unusual, legalistic term “photocopying machine” rather than the standard “copier” or “photocopier” or “copy machine”.
Photocopying machine is a highly unusual, legalistic term? You have got to be kidding. You are wasting everyone’s time with this sophistry. Are you trying to be a troll or does it come natural to you?
Looks like Matthew Cavanagh reads Overlawyered!
“Photocopying machine is a highly unusual, legalistic term?”
In comparison with standard terms like “photocopier” or “copy machine” it is. Most of the top google results from the term “photocopying machine” now come from discussions about this transcript, but “photocopying machine” is about 30 times rarer on google than the normal “photocopier”: 140,000 hits versus over 4 million for “photocopy machine”. Also, 2 million for “copy machine” and 53,000,000 for “copier”.
So the standard way to refer to these machines is as “photocopier”, “copy machine”, or “copier”. The phrase “photocopying machine” is rarer and longer than the others, and is normally only used in formal discourse. If in an office setting someone asked to see the “photocopying machine” the diction would be bizarre, which is no doubt what confused the deponent.
Why do you think the attorney repeatedly used the rare and longer construction “photocopying machine” rather than colloquial and shorter expressions like “copier”, “photocopier”, or “copy machine”, if not to sound formal and legalistic?
asdfasdf,
In comparison with standard terms like “photocopier” or “copy machine” it is.
You just made everyone’s point. Remember that Patterson is the “acting head of information technology for the recorder’s division of the county fiscal office.” If there is someone in the room who should know, recognize and understand the difference between types of machines (as is raised in an objection) it is Patterson. Patterson would be familiar with all of the terms – even with “rarer and longer construction.” He is the supposed expert sitting in the room.
It would be akin to a person walking into your office and saying that a person was passing around a written letter slandering him.
Do you know what he means, even though it is not slander but libel?
The same thing happened here.
Why do you think the attorney repeatedly used the rare and longer construction “photocopying machine” rather than colloquial and shorter expressions like “copier”, “photocopier”, or “copy machine”, if not to sound formal and legalistic?
How about the idea that the lawyer, like the rest of the world, is so stunned by the idea that the acting head of information technology for the recorder’s division of the county fiscal office doesn’t know what the rest of the world knows?
Your answer to my question for why plaintiff’s attorney used the term “photocopying machines” and not a more common, shorter term cannot be correct.
Your theory is that the plaintiff’s lawyer used the term “photocopying machine” because he was “stunned by the idea that the acting head of information technology for the recorder’s division of the county fiscal office doesn’t know what the rest of the world knows?”
But this theory fails .
Plaintiff’s lawyer asked deponent about “photocopying machines” before deponent asked plaintiff’s lawyer what he meant by the term. So, if in fact plaintiff’s lawyer was “stunned”, then he would only have been stunned after he used the term, not before. Your theory still does not answer the question of why plaintiff’s lawyer used the rare, long term rather than the shorter, more common one. Usually (by definition) common terms are preferred over uncommon ones; and shorter over longer ones. Here, the common terms – copying machine, copier, photocopier – are hundreds of times more common than the unusual term “photocopying machine”. So, there must have been a reason plaintiff’s lawyer used that rare, long term. What was it?
Also, it is not the case that the deposition shows or suggests deponent did not “know” the definition of “photocopying machine”; only that deponent requested clarification of a potentially ambiguous term (e.g., in an IT setting, many copies are made by scanning, then printing – is this a “photocopying machine”?). Asking for clarification of a term does not mean that one does not know or can understand the term; only that there could be ambiguities. The point of the plaintiff’s lawyer’s sesquipedalian phrase isn’t that deponent did not understand the longer term: it’s that it suggests the discourse is formal and legalistic, and that is likely why deponent asked for the term to be formally and legalistically defined.
(I wish the commenters who are righteously indignant that deponent did not know the term “photocopying machine” would argue with the commenters who are equally righteously indignant that deponent was delaying the deposition. You can’t both be correct, you know – at least one camp’s righteous indignation is misplaced.)
Anyway, you still did not answer the question in a logical way: why did plaintiff’s lawyer use the far rarer, and longer term rather than the shorter and colloquial versions?
Reminds me of a story North Carolina personal injury lawyers tell about a notoriously irascible defense attorney, who objected to a plaintiff’s opening question as follows:
Except that the story is funny, unlike this comment thread.
“The point of the plaintiff’s lawyer’s sesquipedalian phrase isn’t that deponent did not understand the longer term: it’s that it suggests the discourse is formal and legalistic, and that is likely why deponent asked for the term to be formally and legalistically defined. ”
I’m sorry, you need to define “sesquipedalian” before this comment thread can continue. After all, I’m not sure why you’re using such a rare, long term, which has far fewer Google hits than any possible alternative phrasing; you must therefore have a formal and legalistic intent, which implies a formal and legalstic definition. It’s only fair that we ask that this term be formally and legalistically defined!
Plaintiff’s lawyer asked deponent about “photocopying machines” before deponent asked plaintiff’s lawyer what he meant by the term.
That is correct. He did ask and by your own admission, used a term that was acceptable and generally used by people. The rarity of the term is not an issue. At issue is only whether the term is acceptable and used within the industry.
It is.
Your initial question was, however, Why do you think the attorney repeatedly used the rare and longer construction “photocopying machine” rather than colloquial and shorter expressions like “copier”, “photocopier”, or “copy machine”, if not to sound formal and legalistic?
I find it interesting that that in your attempt to say that the “theory fails,” you changed the focus of your question away from “repeatedly” using the term to using the term initially.
The theory stands as the attorney used by your own admission, an acceptable term, and then may have been astonished (as the rest of the world is) that the guy in charge of technical issues – the guy who knows the terms inside out – was pleading some sort of ignorance as to what the term meant.
Be grateful he wasn’t asked about an ATM machine (a machine that ATMs use to draw money for themselves?).
I can say, without any doubt at all, that I have a photocopying machine in my office and at home, and I am neither head of IT nor a lawyer. Does that make me smarter than both?
No, Peter. It just proves that you’ve had more experience with office machine than he. I guess he’s a big picture guy. So long as the picture isn’t photocopied.
Bob
Or “xeroxed”, “copied”, “dirty purpled”, etc. 🙂
I had to go to the “h2g2” section of the BBC’s own website to get any kind of clue as to what the heck the word “sesquipedalian” meant in any context; it means, to quote the last line of the entry: “In other words, a sesquipedalian is one who would call a spade, a ‘manuo-pedal excavationary implement’.” Or, one who would call water (to use a different example from the entry), “dihydrogen monoxide”.
Methinks that what’s-his-name—oh, yes, “asdfasdf”—could easily be described as someone who is indulging in (again borrowing from the article): ” . . . thus enabling the author to dismiss all opposing views as ultracrepidarious.”
Footnote 7 in the article defines “ultracrepidarious” as: “Acting or speaking beyond the sphere of actual knowledge or experience; ignorant criticism.”
“Asdfasdf”, that perfectly fits your criticism of my comment above.
As someone who is fairly close to the deponent’s age I HAVE heard “xerox”, “photocopier”, “copier”, and “photocopy machine” used in the context that the deposing attorney used; I would guess/suspect that the deposing attorney at first could not believe his ears when the person being deposed came back with his initial response……something that DID happen to me when I read the Plain Dealer‘s story (that plus it took ten pages of transcript altogether; I would assume that by the end of this that the sides DID agree on the term “photocopying machine”!).
Kevin at Lowering the Bar has just posted some significant background on the case:
http://www.loweringthebar.net/2011/03/followup-on-the-great-photocopy-dispute.html
Melvin H. writes “I would guess/suspect that the deposing attorney at first could not believe his ears when the person being deposed came back with his initial response”
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.
Olson cites the article from Lowering the Bar: http://www.loweringthebar.net/2011/03/followup-on-the-great-photocopy-dispute.html .
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.
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…
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.
Jay writes:
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.
I also don’t understand, as I’ve said before, why deponent, and not plaintiff’s lawyer, is the one being criticized.
A wise man once said, “when it is you vs. the world, bet on the world.”