Storytime

Josh and Aaron swap unforgettable deposition stories that range from absurd and hilarious to tense and high-stakes, revealing how unpredictable and human the legal process can be. Along the way, they unpack what depositions are really like, why they sometimes explode into chaos, and how moments of humor, ego, and honesty can shape the outcome of a case

 FVF Law is a well-credentialed, overwhelmingly 5-star reviewed personal injury law firm in Austin, TX. FVF strives to be the educational resource for the injured, available to guide those with questions about what comes next. It is FVF’s mission to ensure clients are prioritized and informed throughout the injury claim process, and to secure the best possible outcome. Josh Fogelman and Aaron Von Flatern founded FVF Law to offer a different kind of injury law firm, and a dignified alternative in the marketplace. They hope to show injured Texans that consulting a lawyer after an injury is a natural, and responsible thing to do.

Transcript

0:00:00.6 Aaron von Flatern: Yo, Josh.

0:00:01.3 Josh Fogelman: Hey, Aaron.

0:00:02.0 Av: Hey, Josh.

0:00:02.6 JF: Objection, form. 

0:00:04.4 Av: Wait.

0:00:04.8 JF: Objection, form.

0:00:05.4 Av: You got to let me talk... 

0:00:06.2 JF: Objection, form. Objection, form.

0:00:08.1 Av: The only...

0:00:09.1 JF: Objection, form.

0:00:09.5 Av: I'm trying to get..

0:00:10.8 JF: Objection, form. 

0:00:11.6 Av: Question out. 

0:00:12.4 JF: Objection, form. 

0:00:13.6 Av: This is very disconcerting.

0:00:14.6 JF: Do you know why I'm doing that?

0:00:16.0 Av: I kind of do. Because it's funny.

0:00:18.7 JF: It happened in a real deposition.

0:00:22.7 Av: I remember reading that transcript and then watching the video in total disbelief.

0:00:29.8 JF: Shocking. 

0:00:30.7 Dave Hawks: What does, "objection, form" even mean? 

0:00:33.0 JF: It means you're objecting to the... In a deposition, you have limited types of objections that you can make. It's different from being in a courtroom because you don't have a judge. So when you say objection form, you're objecting literally to the form of the question. There's a couple of different question types that are inappropriate and preserving your right to have that objection heard in front of a judge down the road. 

0:00:55.6 DH: You can just say it as many times as you want?

0:00:57.3 JF: I mean...

0:00:56.4 Av: I'd like to give a longer answer. Objection, form was designed to stop bad behavior. Back in the 1980s, some of the legal greats in our state, such as Joe Jamail, who is famous on YouTube for this, used to, let's just say, intimidate other lawyers and more or less invite them to fist fight every time there was a disagreement inside of this very, very tiny conference room where these depositions were taking place. And the Supreme Court said, you know what, instead of y'all arguing about whatever you're arguing about, how about you just say "objection, form" and that'll be a placeholder in the record and then you can file a motion and come to court and you can actually have the argument in front of the judge and not just be like drawing down in the middle of the depot. So objection form was the court's idea for the way to avoid abuse in a deposition. Which is why your quote from one of Mark Farris' deposition is so funny. Because this creative lawyer found a way to turn what was supposed to be the solution into the ultimate abuse of process. 

0:02:14.6 JF: Yes. 

0:02:15.8 Av: The man must have said objection form in that deposition like 150 times.

0:02:22.8 JF: So many times. And in rapid fire like that to prevent Mark from even being able to ask a question at all.

0:02:36.6 Av: I think he got into that place where I get with my 12 year old where you just, you're kind of like vibrating. You're so frustrated. This man was so frustrated with the types of questions that were being asked.

0:02:51.2 JF: Because he was getting his butt kicked. 

0:02:55.0 Av: Yes. And...

0:02:56.2 JF: His clients were getting their butts kicked, that's why. 

0:02:57.3 Av: Yeah. We're not tooting our own horn. But one of our lawyers, Mark Farris will toot his horn. He was absolutely winning. If you can win a deposition, that was happening.

0:03:05.1 JF: And you can, and he was.

0:03:06.7 Av: And this man was losing his mind, and it'll go down in the lore of FVF forever.

0:03:13.9 JF: Pretty great.

0:03:14.2 Av: Yeah.

0:03:14.4 DH: Are depositions usually that exciting?

0:03:18.1 Av: No, we tell our clients, like, don't be intimidated, don't be anxious, don't be worried. If anything, you may be a little bored during this process. It's going to be civil. There's no need to worry. We'll be there to protect you. Your only job is to tell the truth. Very simple. You know the truth, so they're going to ask you about it. If you don't know, say, I don't know. Depo should not be that exciting.

0:03:46.3 JF: But sometimes it really depends on the case, and it depends on the lawyers in the case, and it depends on how all the different players in the case are behaving themselves. And, sometimes you just get lawyers who are coaching their clients to be abusive and evasive and not truthful, and the case just gets really, really heated and contentious, and you walk into that deposition room, and you've got all the egos in that room, and fireworks fly, man. It just happens.

0:04:19.8 Av: Do you remember, since we're telling stories, I hope this podcast is called Story Time. Do you remember when you and I walked into, I won't say the name of the law firm, but a law firm in Dallas whose office was located very high in the sky?

0:04:40.1 JF: I do remember.

0:04:41.3 Av: Who was in possession of more marble than I thought.

0:04:44.4 JF: A lot of marble.

0:04:45.1 Av: Any firm.

0:04:46.0 JF: Very deep carpet.

0:04:47.0 Av: Didn't know it was legal to have that much...

0:04:48.9 JF: So much marble.

0:04:49.7 Av: Marble. The conference room table was like... It was like a cartoon. You remember the Bugs Bunny cartoons where Yosemite Sam would be like, pass the salt. And then, like, you walk all the way down.

0:05:01.2 JF: You're 40ft away. [laughter] Having a conversation with you on my cell phone at the other end of the table.

0:05:07.1 Av: So we walked into this place, and it was nicer than any nice hotel I'd ever been in. 

0:05:12.2 JF: Yes.

0:05:12.9 Av: And we're in this deposition, and there must have been 10 lawyers?

0:05:17.4 JF: Yeah.

0:05:18.2 Av: In that room.

0:05:19.3 JF: Yeah.

0:05:20.5 Av: There was an oil field defendant. There were multiple people dead. There was a lot of money at stake, and people were very tense.

0:05:29.7 JF: Yeah.

0:05:30.8 Av: To the point where it shouldn't... You know, when you're in a room with 10 people, it should be louder than that. It was, like, weirdly kind of quiet and I remember you were taking a deposition of one of the key witnesses. Do you remember that?

0:05:45.4 JF: I do remember that deposition clearly, yes.

0:05:48.0 Av: And I can hear you clearly 'cause right now when you tell me this story, I can completely hear your answers. But I remember during that deposition there was something going on.

0:05:58.1 JF: I don't remember that.

0:05:59.2 Av: I mean, you had trouble hearing the witnesses responses, if I recall.

0:06:02.8 JF: Oh, that story? 

0:06:04.7 Av: Yes. 

0:06:05.0 JF: Yeah. Well, you know what I was thinking you were going to tell about that deposition is when we walked into that room, and there were maybe inconspicuous signs, but signs nonetheless on the wall.

0:06:19.8 Av: Mm-hmm.

0:06:21.0 JF: Letting you know what the WIFI network was and what the password was. And then a tiny little footnote stating "By logging in to our network, you acknowledge that we may be spying on your computer." Do you remember that?

0:06:42.6 Av: I do. 

0:06:43.7 JF: Yeah.

0:06:44.0 Av: Yeah.

0:06:45.0 JF: Yeah, yeah. That depo...

0:06:45.3 Av: That's disconcerting.

0:06:46.6 JF: That deposition was crazy. Yeah, I'm sitting there and I'm deposing this guy. Really, really, really bad set of facts. And this guy was like the guy who kind of could piece it all together. He was a very boots on the ground witness. He had been there and seen some very relevant things. And this is a very serious deposition. This is a deposition where our client was deceased and two other people had been killed in this crash. I mean, these are catastrophic, horrible, horrible set of facts. And this lawyer strolls in. I mean, this witness strolls in, presumably stoned.

0:07:33.5 Av: Yeah, he was rough.

0:07:35.0 JF: I mean, completely oblivious and unconcerned with the gravity of the situation and the importance of his testimony to justice in this case. And he's sitting there and he's got a bowl of cashews and he's just eating these... I'm deposing this guy and he's just like eating these cashews casually, trying to have a conversation with me about it.

0:08:04.1 Av: He was eating a lot of cashews. He was hungry that morning. If I recall, it was very casual. He was not kind of, I don't think he was even really dressed the way a person would normally dress for something formal like that.

0:08:18.7 JF: No.

0:08:19.2 Av: And you know, I worked in the oil field. All due respect to my oil field brethren, they're not really cut out for that format, to be in the courtroom or to be in a marble filled conference room with 10 lawyers.

0:08:32.1 JF: But just basic respect towards the significance of the situation was lacking.

0:08:37.8 Av: Yes.

0:08:39.0 JF: And he's munching on these cashews, and I couldn't hear what he was saying. So what did I tell him?

0:08:46.0 Av: "It's kind of hard to hear you with all those nuts in your mouth", or with those nuts, something horrible like that, which we can laugh at because the defense lawyers laughed at it. Literally everyone in the room laughed at it. And the witness laughed at it because it was just kind of like, cut the tension. And after that, he kind of straightened up a little.

0:09:07.9 JF: Now, to be clear, I didn't really mean it to come out that way. 

0:09:13.3 Av: Yes. 

0:09:13.9 JF: But it came out that way. And then once it came out, I was like, well, that just was said, and it was pretty funny. So why don't we all have a laugh? And it did cut the tension.

0:09:25.2 Av: It was nice.

0:09:25.9 JF: And that's the crazy thing about depositions, and that's what this podcast is about, is some fun deposition stories just to have a good time. And depositions are so interesting because...

0:09:37.5 Av: I have a list. I have a list of some of the darndest things that people have said.

0:09:42.6 JF: Well, they're so interesting just because you never know what's going to happen.

0:09:55.7 Av: Let's try. Let's walk through some of the testimony we've seen or heard in deposition or some of the lawyer statements. Right. So we've got an answer to this question, and this is from one of our lawyers, okay? I asked for some of these questions. I'm sorry, I asked for some of these stories from some of our lawyers, and this is one of the responses I got. "A restaurant owner I deposed testified that he had his staff use the same mop in the bathroom and the dining room. And when I asked him if that wasn't gross, considering that the bathroom was covered in urine and fecal matter on the floor, he responded under oath, 'No.'"

0:10:36.1 JF: A restaurant owner?

0:10:37.6 Av: Restaurant owner.

0:10:40.4 DH: Oh, my gosh.

0:10:42.1 Av: Okay. How about, this is not a statement, but this happened to me in a deposition. I was kicked under the table by a court reporter. And she was doing that because I was failing to clean up some of the vague and ambiguous answers that the deponents were giving me. In other words, it's like she's trying to help me create a clean record for the court. And so she's kicking me under the table to be like, you need to follow up on that answer, which I thought was very helpful. I was a younger lawyer at the time, and she was...

0:11:17.9 DH: Did it work? Did you know what she was trying to do in the moment?

0:11:19.6 Av: Afterwards when I was like, "Why were you kicking me? " She was like, "I was trying to get you to answer..." Anyway, we all grow up. Here's a good one from Claire. This was at her former law firm, by the way. She saw a client flip the judge and the jury off and yell "F you! " Except he didn't say F you, before fleeing the courthouse.

0:11:47.8 JF: What did they say, Aaron? I don't understand the records.

0:11:49.8 Av: They said a word that starts with an F and You, and they meant all of you and then they fled the courthouse on foot.

0:11:58.5 DH: Fled? Like they ran away?

0:11:59.0 Av: Fled. Because, I mean, I don't know if you've ever been in a courtroom, but there's bailiffs.

0:12:04.1 JF: Yeah.

0:12:04.6 Av: And they don't tolerate that kind of stuff. You can go to jail.

0:12:05.9 JF: Now you can go to jail for flicking off the court. The judge can put you in contempt... 

0:12:10.0 DH: So they knew that that was going to happen, so that's why they had to flee. 

0:12:12.9 Av: That brings up the... There's a famous lawyer here in Austin who went to jail for doing the universal...

0:12:22.4 JF: A very obscene gesture related to self gratification. 

0:12:28.2 Av: Yes, thank you. That's very well put. 

0:12:30.1 JF: Towards a judge and a judge's rule... A great, a great, wonderful judge with a wonderful sense of humor. She threw him in jail.

0:12:41.6 Av: Yeah. And I think in his defense, he was claiming that he was actually gesticulating towards the prosecution.

0:12:47.6 JF: He did say that.

0:12:49.1 Av: It's like, "That wasn't meant for you, judge. That was for them." 

0:12:53.2 JF: You can't do that in the courtroom.

0:12:55.6 Av: Let's see. One of our former lawyers, Robert House, has a great story how he was deposing a witness. I don't know if there's any Lil Jon fans in our podcast audience, but in this deposition, do you remember how it went?

0:13:12.4 JF: Something about turn it down.

0:13:14.2 Av: So there was a dispute about some sound in this particular case. And so Robert asked the witness and then, "So you're testifying the music was too loud? " "That's right." "And so what did you do? " "I asked him to turn it down." "You asked him to turn it down? " "Yes." "Turn down for what? " Which no one in the room got. It totally went under the radar. So unlike your joke, nothing happened in this joke. Like, it just kept going. And then Robert later printed that out and put it on Facebook. Shout out to Robert House. He's the master of keeping a straight face while... 

0:13:52.0 JF: Yes. He is. 

0:13:52.9 Av: Doing stuff like that. Let's see. I have that's my job written down. Do you remember what that was?

0:14:01.0 JF: I don't. I don't remember that. But I can tell you some stories about, like, answers that I got that. Here's the thing about a deposition. Right. You're in the room and sometimes you're taking these depositions and every now and again you'll get a witness that's a make it or break it. And when you're in that room, the tension is very high. Those witnesses have been very well coached to be evasive, to dodge answers. And you have to do the work to pick them apart. And I mean, cross examination in a deposition is the ultimate truth gathering exercise. You are allowed to ask yes or no questions. You can be very forcible about compelling people to answer questions with a yes or no so they cannot dodge you. You can get in front of a judge in the event that they refuse to answer yes or no. It's really a masterful skill. It's fun, really fun. An effective cross examinations, like there's nothing better than that in the law. And so we all have seen, in the courtroom, dramas when you get that witness on the stand and you finally get them to make that admission, that is cross examination.

0:15:05.8 JF: And I've had a couple of times where you ask a question and you kind of assume that you know what the answer is going to be. And sometimes, I learned this lesson very, very, very early on as a young lawyer about never ask a question that you don't know the answer to if the answer could hurt you. And let me give you an example because I ate some crow. I had a case, it was a pretty interesting and fun case. And we had this one witness and the witness was a cop. And he had been off duty at the time. And he was the only person who really saw what had happened. And it was highly contested what had happened. They were really blaming our guy. And this guy gave a great, a great deposition, just A plus, got everything I needed out of him. We secured the negligence case. And this guy being a cop and in my moment of naivete, I assumed that he had always just been nothing but honorable. And so to conclude my final question...

0:16:25.2 Av: This is your guy?

0:16:26.8 JF: He's not my client. He's a witness that also happened to be a cop. My client was a cop too, but this guy was a cop. They were working off duty together and I hadn't had any real conversations with him before the deposition. And we got to the last question, and he just gave this beautiful deposition that sealed our case. And my question to him was, "Have you ever gotten in trouble on the job for dishonesty? " Assuming that the answer would be "No, I've never been in trouble for dishonesty on the job." Well, guess what? 

0:17:02.7 DH: Oh, no. 

0:17:03.7 JF: That's how you learn a lesson. Like talk about eating crow and man, you got to unwind those.

0:17:13.4 Av: Well, I got to know, was it something like kind of minor or was it..?

0:17:17.4 JF: I mean, he had been dishonest. One of his co workers, another cop, this is on the job, another one of his co workers had gotten in trouble for something kind of dumb and he had lied about what he saw in order to defend his brethren. So it wasn't terrible. But boy, when you're, I mean, you got to understand, like when you have just finished this deposition where you like mind melded with the witness and you have all of this confidence and you're just like on the same wavelength and you're just hitting like double after double after triple and you're just in the zone and you're just like, you know what that answer is going to be, except you don't. And then it's not. It is an uncomfortable feeling. So you don't undo that anymore.

0:18:10.1 Av: I like to bond with the person who I plan to really cross examine. And psychologically, I don't know why that is, although I kind of do, which is I'm really good at fighting with my family. Like my son, I can cross examine him so well, because I love him.

0:18:30.9 JF: Yeah, of course.

0:18:31.5 Av: And so I feel like when I form the bond with the witness now, I can be like I am at the breakfast table...

0:18:36.8 JF: I see.

0:18:37.2 Av: And be like, "Look, let's call a spade a spade here, you lied." So you didn't do your homework. But I had a cross examination in an arbitration hearing where it was going really well and you start to kind of, once it starts going well, you do start to take a few liberties because you can feel in the moment how this fact finder, which he wasn't a jury in this case, it was a retired judge serving as the arbitrator, is kind of following your lead and they're understanding what deficiencies. This was an expert, okay? So the expert was paid to say a bunch of stuff, but upon pushing a little bit, had to admit a bunch of stuff that was very favorable to us. And as I kept getting more and more admissions, I started to weave together his answers to sort of summarize, say like in summary, you know, this. And he's like, he said, well, you know, "You're kind of twisting my words around and getting me to say stuff that I'm not saying." And I just immediately said, "That's my job." And the Judge laughed, which was helpful to me because I think.... And the witness laughed. And then the witness dropped their guard a little bit more 'cause it was like, I'm not big and scary, but I am going to call you on your stuff.

0:20:06.9 JF: Yeah. 

0:20:07.3 Av: Right. And so that's where I like to proceed. Now, other lawyers will come in on cross examination, and the room gets colder when they walk in. And I have a huge amount of respect for those. I mean, I think Mark Farris is one of those lawyers where he walks in, he's intending to cross examine you. You can hear his footsteps in the hallway as he's coming towards that deposition. 

0:20:28.7 JF: It's uncomfortable.

0:20:29.3 Av: And when he walks in, you are very uncomfortable and he's very comfortable, which is, you know.

0:20:34.4 JF: Yeah. Well, he'll take you for eight hours.

0:20:36.1 Av: Yeah, exactly.

0:20:36.8 JF: No problem.

0:20:39.6 Av: Yeah, sort of thing. So anyway, stories are fun from court. The things that people say in court, some of them are not even rated for this podcast, but we've had some doozies.

0:20:53.4 JF: Yeah, no, I remember another, I'll tell one more story before we wrap it up. Kind of another redemption I don't know what they're going to say, but you asked the question anyway. The caveat being it didn't matter what their answer was this time, it wasn't going to hurt me. It could have been a yes, it could have been no, it didn't really matter. But just like kind of one of the things that you learn early on as a lawyer, if you're well trained, is sometimes you have to ask the obvious questions. You might not know what the answer is going to be, but you might be surprised by the answer, too. And sometimes you just got to put it out there. And we had this case where a woman had been sitting in a hotel lobby, and the lobby had ceiling tiles just like this, these acoustic ceiling tiles. And there had been an AC leak up above it and got the tile wet. The tile had been dripping into a paint tin that they had set up there to catch the water the hotel had and just got too heavy and fell on her, hurt her.

0:21:54.7 JF: And it was a... There were a lot of complicating factors in that case. It was a difficult case from an injury standpoint. They didn't believe that she was hurt. And I was deposing the maintenance guy. I mean, this is a super random event. A woman just in the wrong place at the wrong time, tile fell on her head. And I'm deposing the maintenance guy, trying to understand exactly how this had come to pass. And I had a really good deposition, he was a great witness. And I had a really good deposition of him. And towards the end of the deposition, I said, "Do you agree with me that a tile fall on a person's head can hurt them? " He said, "Yes, I agree with that." And I said, "Have you, in fact, yourself...", had no idea the answer to this question, "Have you, in fact, yourself ever had a tile fall on your head? " I mean, who has, right? Who has? 

0:22:46.8 Av: That guy.

0:22:47.2 JF: Who has?

0:22:48.2 Av: That guy had.

0:22:48.5 JF: That guy had. And to my extreme surprise and satisfaction, his answer, this is their witness, by the way. He's an employee of the hotel. He's like, "Yes, I have." And he had had the same exact thing happen to him and got hurt.

0:23:07.8 DH: No way.

0:23:10.1 JF: And we ended up settling that case for seven figures. It was a really, really great outcome for our client. But just these moments where, if you don't ask, you don't know, but you got to be careful with that. But, yeah, depositions are a ton of fun. And this is, like, one of those things that makes this job enjoyable is, you never know what stories are going to come out of it.

0:23:33.5 Av: Yeah. You never know.

0:23:34.8 JF: Objection, form. All right, thanks for tuning in.

0:23:41.3 Av: You were going to ask me to say something else, and I knew better. I was like, You're going to yell at me.