Episode 6 – Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – Trust Money for Employees?

[Music] Hello welcome to another episode of Albertson and Davidson live I'm Keith Davidson I'm Stewart Albertson we're glad you joined us yeah thank you for being here with us again today and we got a few things that we would like to talk about and see if we can't demystify some of those trusts and Will's stuff that we spend our lives doing so let's start off with our breaking news of the week and this is a new appellate case that came out not too long ago and this is an arresting case in the sense that in this case a business owner tried wanted to or tried to leave a gift in his trust to his employees sound like idea well it might be I don't know what did I think two of the three employees were very happy he decided to do that Oh Kayla shaking her head yes our assistant paralegal Kayla who's working the laptop for us today she thinks it's a good idea right all right well here's what happened so in this case this is the case of chuan versus perman and it comes out of the first Appellate District and our decedent Walter perman owned a company and in his trust he actually said that he's going to leave gifts to each of his employees there's three employees in particular who he's going to leave gifts to if they were employed at the company at the time of his death so there's a condition for them to receive the gift and that condition is number one he has to die and number two when he dies they have to be employed at his company right okay and so the company was control master Products Inc and I think we looked up they do you remember what they did Kayla I can't remember but say for metalworks yeah they made something and it was a valuable company and it's always interesting to me how people make their money you know we have to we've had clients that make a fortune doing all sorts of interesting things but anyway so he had this company and he had these employees one of them retires before he dies before he died okay and the other two well before he dies he actually sells the company so he he just completely disposes of the company the new company who bought his company actually bought all the assets and the name of the company and then his actual corporation got a different name and he started selling model trains or tree tree trains that's right yep a little bit of a hobby of his I suppose yeah so then he dies okay so now that all three employees the one that retired and the other two who had worked at the company up until it was sold come in and they say we want our gift and naturally the family says no because you weren't employees at the time of his death which the trust requires which the trust requires right so the court has to decide are are these people these three employees going to get their gift or are they not right and on and if they are gonna get it on what legal principles would that be allowed yeah that's the interesting part at least for us right so first of all the argument that the family tries to make is well the term must be employed by the company the term employee does not include if the company was sold correct its employed unless the company sold in which case they don't have to be employed that's how this is how the the employees want to interpret the trust so there's no there was no exceptions to the general statement in the trust the Express statement of trust that you must be employed at the time of my death yeah it didn't give any exceptions so it didn't say but in the event I sell or any of these other contingencies that possibly could have happened which it just goes to show you how hard it is to draft trust well I was just gonna say that yeah I mean we see that people that create trust don't they really just want to control things beyond the grave isn't that really what they're trying to do sure and it's so hard to figure out what the future holds the thing that was interesting was that he was I don't know when he signed his trust but he was in negotiations for four years to sell his company right and kept that hidden from all these employees that whole time well yeah and then after he sold the company he kept telling the employees hey don't worry about it you're taking care of him my trust you're gonna get a gift in my trust like in his head right I think he honestly thought he intended it it's gonna happen and yet the language says you must be employed at the time of my death they weren't employed technically speaking because the company didn't exist one wasn't by retirement before he died right and to work because the company was sold yeah so what they wanted the employees wanted that court to do is to kind of rework the language and say well this employed at the time my death should only mean employed if the company hasn't been sold and I still own it and if it's possible to be employed at the company yeah and so the court said well we can't just rewrite the trust right and so that was a little that was one problem the second problem was or the second issue was was it possible to excuse that condition so let's say that the trust can't be rewritten but can you tell the employees but you it was impossible for you to meet that precondition and therefore we're going to excuse that precondition now before you give the answer it seems to me that I actually could go with the court either way on this oh really yeah because I think the court probably wanted to get to the right result and so they weren't gonna get there by the expressed language and the trust right if they just did a plain-jane legal analysis of this I think that the two employees that are asking to say hey just deem us to be employed because it was impossible for us not to be employed you know we didn't leave like this other employee did the one employee did and so I think the court looked for a way to remedy that and and so you can continue from there well acts I was gonna ask you what so you have these two issues you have to decide are you going to read the language of a trust of the trust to say something different from what the black and white words say well and that's the I think it's the first issue that's and that's the important thing remember in law school that bad facts make bad law and this might be one of those cases yeah and so I think what you have to do is you have to look at the law and the law is supposed to be steady the law doesn't change quickly and you've got to have certain rules there can always be a few exceptions but primarily you need a strong general rule and the strong general rule for trust is if the language is clear and unambiguous you go with the language that's how you interpret a trust right now if there's some ambiguity in there okay we we were opening up extrinsic evidence can possibly come in we might look at other terms and the trust to see if we can make the whole thing read together nicely but this trust is very clear there's no exceptions he planned it it probably wasn't the best planning in the world especially if he knew he's gonna be selling his company but I think I think they lose and if they lost on the cold black-letter law language of the trust I wouldn't personally have a problem with it I'd feel bad for them as if they were my friends or my family but I say that's the right result cuz we need the law to guide us on future cases not just this case alone so the Trust says you must be employed at the time of my death you weren't employed at a time my death at this company and therefore you lose correct and I'm gonna assume since the loss tombs that want to when somebody creates a trust that when this gentleman created this trust the law presumes that he understood every provision of that trust right which we know is not accurate but that's how the law presumes and we have to go with that as the guiding light and so if he sold his company then theoretically he knew that this gift was being done away with right I mean that's what the court said too so the language is you had to be employed you weren't employed you're out and that's a really harsh result and so now you're the judge let's say that you're the judge and you're hearing this and you come to that determination you're a good judge you follow the law and the rules of construction of a trust and you say the language is not unambiguous and I'm sorry you lose on that prong how could you then as a good judge who doesn't want to go home making a bad decision that day if you truly believe the employee should inherit something any that the decedent intended that they inherit something how would you maybe see if you could rectify this situation and I think that's ultimately what the court did which is it was impossible to meet this precondition because the company had been sold and so the the impossibility of being able to be employed wasn't the employees fault it was the owners fault because he sold it and for that reason they shouldn't have to meet as long as they were employed as long as they could possibly be employed which was at the time that he sold then they met the condition which is interesting because and I don't know if you ready to give away the the ending go ahead sure so here's what happened the two employees who were employed until the company were sold when the employee who the employee who retired before the company was sold lost they lose and it's because they voluntarily stepped down from the company even though it was a retirement that it's not a little bit age discrimination going on there I mean if they truly retired and they were of age to retire you're gonna hold that against them because it seems to me their possibility of continuing on as an employee would take them above and beyond their retirement age if that in fact was their age I don't know if that was the facts of the case but it seems to me a little age discrimination their or their abilities like what if they couldn't work anymore they were right now you know they hurt their back or whatever I don't know if you were the estate planning attorney and you have this client come to you and say I want to incentivize my employees I love these you know three particular employees that do great work how would you attack this well I mean and it's easy in reading this case to look at this in hindsight so on hindsight you know there should have been some provision made for in the event I don't own the company because I sold it or something like that then this is what I want to have happen it isn't that the art of lawyering trying with with the data sets that you have in a case predicting with in percentages obviously what the future holds isn't that kind of what we lawyers do it is and I think that's the difference between a good drafting attorney when it comes to estate planning and a not-so-good drafting attorney and it's not that this was necessarily a bad plan but it wasn't as good as it could have been obviously in light of what happened and I don't think it's that hard to anticipate well okay you want to leave your employees this money but what happens that they're not employed do you want to just name them and so they're gonna get it whether they're employed or not do you want to have an exception that employed unless I sell the company or for some other reason I don't own it or do you want to send a letter to the client saying look if you ever sell this company you got to change your plan because your employees are going to be out right why not just fix it to begin with that's what I would do and then if the client for whatever reason everyone said well you come across a very stubborn client didn't want to that you better have that letter in there it's interesting I'm wondering if these intended beneficiaries these three people the one that got out is there a legal malpractice claim there it's probably not strong enough but you're getting into that territory and so that's where estate planners need to be careful you know when I do things in my cases I always think about what am i doing right now and what's likely to happen in the future because of it and when you start brainstorming that issue you come up with all kinds of neat creative ideas that you need to address right to make the case better well that's I think a lot of people say why are these estate plans so complicated why are they expensive to draft whatever it is this is why because there's a lot that you have to think about if you're gonna do it properly but the proper estate plan is very broad but very narrow right go ahead go do it yeah I guess so I don't know I don't know I mean in hindsight it's easy to say they should have made a different provision here but I don't think it's that hard to foresee either I think you should have been able to foresee it I mean that that's something I think an estate planner has to think about if this gift is to the employees of this company as long as they remain employed there's a lot of things that could happen they could go bankrupt somebody could buy half the partnership or that half the company is that a change of ownership I mean there could be all kinds of things that could go on but you said this isn't a give malpractice case why is that because I think that there's probably notes from the drafting attorney and that this is what the guy wanted and they put it in there and they went over it you know five different ways and that's exactly how he liked it and he signed off on it so I think you would have a hard time showing that the attorney lacked the ability to properly draft that estate plan the the malpractice cases on estate plans like this or when there's a signature missing or something that's that's usually when that comes in where the better ones yeah where it says two spouses are required to amend the trust and they only get one spouses signature and it changes the fortunes of somebody that person's harmed and I think you've got a good malpractice case but these drafting cases they're difficult from a malpractice standpoint I mean do we even know if the set Lord would have wanted that provision of an exception if I sell the company that's right that's the speculative part right incorrect the employees can say that yeah clearly he wanted it but we're gonna prove that on my latest loss clearly he wanted what benefits me yeah well that's right most litigants think that right so anyway that's our case for this week and so if you happen to be getting a gift from your employer business owner and pay attention Kayla make sure it's written in black and white so let's go on to our next segment where we're gonna give our opinion on some interesting news items so we actually went through and by we I mean Kayla went through and found some interesting celebrity estates so let's talk about some of these celebrity estates and what happened to him and did I ever tell you about the time I talked to Jay Leno no I haven't heard about that like a million times now I haven't you almost deposed him almost opposed him yeah he didn't have to I didn't have to you're unfortunately family wasn't very happy with me he's not a funny man when you were telling second so you call up and you say I want to come down and take your deposition he's not so he wasn't friendly what you know who I did talk to were Ben Stiller's parents Jerry and Jerry Stiller Jerry Stiller and Anil Mira yeah and that was before obviously I think and passed away a couple years ago but the funny thing about that is you had no clue who Jerry Stiller was I did not know we never watched Seinfeld I did not know who Jerry Stiller was and so when I called Jerry and Ann up they were I think they were in New York we talked like an hour Wow and apparently they knew an actor by the name of Jack Albertson back in the day I guess he was back in like the 1940s or something long-lost um and they're like are you related to Jack Albertson and I'm like I have no idea what you're talking about but they were the nicest people and they were both on the phone at the same time they were they asked me questions about myself it was like I felt like I was in la-la land it was such a weird phone call it was a great phone call but it was just strange that they really just wanted to spend time talking on the phone or they liked loud people they speak loud they both spoke over each other but it was like you could tell they've been married forever they seemed to really like each other and they were laughing and joking so I mean wow what a great great successful marriage and you have to be one of the few people in all of America who never watched Seinfeld like how did you know what time I don't they'd be able to show called friends to do my set and I didn't watch friends either No did you watch Seinfeld she says she did okay am friends I mean how did you know George is dead George somebody said to me the other day in the restaurant can you spare a square I had no idea what that man you can you can watch him it's on the reruns all time yeah but so you've heard of Howard Hughes he's a little neurotic yeah he was he was a recluse at the end of end of his life right and there's a story of him staying at a casino in Vegas Desert Inn or one of those I came over which one it was he was taking up the whole penthouse and he was staying there for months and months and they want him to leave because they want to rent it and have it available for some of their high rollers and he wouldn't leave so instead he just bought the whole hotel right that's how he got into the hotel business and Las Vegas so he dies and this is in 1976 his estate was worth 2.5 billion apparently which I don't know if that was the value back then or the value today in today's money probably back then knowing Howard Hughes and he left a handwritten document that was found on the desk of a Mormon Church official and the will supposedly left up a quest of a hundred and fifty six million to a guy by the name of melt Melvin Demers maybe change your last name a gas station owner whose account of giving Hughes a ride when he was stranded in the desert was used as the basis for the 1988 II movie Melvin and Howard which I'd never even heard of that movie great movie oscar-worthy did you watch it no okay so you liked it so the so there's a handwritten wheel left on somebody's desk supposedly by Howard Hughes leaving a gift of a hundred and fifty six million is there a chance that that might be contested anytime you have more than a million dollars it's going to be litigated sometimes less than that yes right so what do you think happens with this this house was supposed to holographic well well did they test it for his signature to see if it was indeed his signature well I'm not sure about that sigh this news story didn't fill me in on that but what it does say is eventually the amount was divided among 22 cousins so I guess you got nothing yeah so mr. Dermer 'he's got and they must have gone intestate so that meant the will must have been invalid and you know apparently Howard Hughes didn't otherwise have a truster will and his family was forever grateful twenty-two cousin extended family was forever great it's insane yes so here's another one do you remember Leona Helmsley she was so kind and I don't think so don't know who Helmsley is look it up did she leave a lot like a bunch of money to her dog so that's what we're gonna talk about so in 2007 she dies and she leaves a bunch of money to her Maltese whose name by the way was trouble okay how much do you think she leaves to trouble probably twenty million in our pet trust Oh pretty close twelve million okay so what is the life expectancy of trouble after he gets twelve million ten years yeah I don't think so I think his life expectancy would be a few days Oh whoever's gonna inherit after I see what you're getting at yeah alright yeah I think there's probably no crime for killing an animal at that time by the way did you know in California that January 1 2019 that family pets have been given the status of people really so now not only is and part of this was some guy walked up to a lady and took her dog and threw it over a cliff ah ok so and there was not a whole lot of charges they could bring against the guy really but now you're gonna be able to say hey that was a member of the family and also in custody battles now there's gonna be just there's gonna be dog support and there's gonna be the sharing of the dog back and forth I think it's just fascinating so well I can just tell you in terms of the amount of money that my family spends on dog food that they've been viewed as people for quite a while as far as I know maybe not legally speaking right financially but I digress so please go on ok so it sounds dog let's say that somebody leaves you twelve million but you're going to use that twelve million during your lifetime and upon your death that goes to me okay so what is your life expectancy after you get that 12 million well do you have a gun not very long no I'd be like minutes yes tops yeah so everybody's mad the trouble gets twelve million and so they fight it and apparently there was actually death threats against trouble portraits so they had to spend $100,000 a year in security she's done security Wow secure the dog you know what you wanna do just hook the dog up to an IV at some point and just put an artificial heart in there just if you're the trustee you know it behooves you to keep this dog alive as well and I'm not sure you're doing trouble any favors by giving it 12 million so ultimately the inheritance to trouble was reduced so the court decided trouble didn't need 12 million so guess what it was reduced to 2 million it was exactly I'm just guessing I don't know you're I was not giving any of these questions at a time it seems to me that 2 million for any dog seems sufficient really not my Nova my Nova deserves 12 million all right well that might be trying right so those are our celebrity cases for for this week that was earth-shattering Wow wasn't it yes there's some lessons to be learned there though Mary Leona Helmsley and now you're a person yes if you are that's probably better yeah and I may have overstated that maybe they're just considered members of the members of the family but it'll be interesting to see how that all shakes out yeah well a whole new era of family law practice well in California for a long time has had pet trusts you literally can create that's right a trust for your pet it's in the California Probate Code right like we our legislature took time that's right that in the code so you could create a trust for your pet yeah sure why not I'm glad they had the time to do that yeah a lot of pressing issues but that one that one got crossed off the list that's right so let's go into our practice pointers and Stewart you came across something interesting this week that you thought might be useful to share at least for any lawyers out there who are interested in kind of what the practice is along well it has to do with defending depositions and I think that most people learn how to take a deposition like you did through experience yeah watching other attorneys yeah and they're usually the attorneys you're going against and you pick up little tips and tricks along the way right right but have you know when do you really sit down and like read Statute on how to conduct yourself a deposition how to lodge objections at deposition what are appropriate objections to what or not yeah I mean I think most people look at the practice guide and it tells you that the you know you can only a deposition you can only object to the form of the question whatever that means whatever that that's right yeah so I think that I was in this I've done probably several thousand depositions in my career I don't know I'm sure I'm over a thousand and I go to this deposition and I'll tell you the hardest depositions are the ones where the lawyers really not that good at taking a deposition and I could tell that this lawyer she'd taken her fair share depositions but her questions just they weren't on point they weren't good they were inappropriate for the most part inappropriate in the sense that they they weren't allowed to be asked in the way she was asking them at a deposition and so I was lodging objections and she also would ask the same question over and over again and then she would add things to the question but it was really the same question before and so I was saying objection asked and answered and those kind of things and I was just making a record right because if you don't make a record and you don't make the objection theoretically you waive that objection at the time of trial which is a scary part for most lawyers I think because they don't like the idea of waiving anything well that's right especially privacy right you can't waive the attorney-client privilege or spousal privilege or psychotherapists patient privilege or something like that yeah you probably could claw that one back with a court order but that you you just don't want to do it so I just decided I was gonna go to the statute this morning because I wanted to understand for myself from the statute not the practice guys because I think you're gonna go to five different practice guides and they're all gonna say something a little bit different and that's because I don't think the statute is entirely clear right so the reason the statutes not entirely clear is because it tells you in a not so clear way the objection is you do not need to make at deposition and they'll still be there at trial for you if you need to make them once you understand those objections I think by deductive logic you know the balance of the objections are the ones you need to say in deposition or you're gonna waive them so you can't have to back your way into it so it's not here are all the objects and the statute doesn't say here all the objections you can make that's right in fact the language actually I'll just read some of it here it says that irregularities of any kind occurring in an oral deposition of any kind I mean that's I that's wide open right and it says if those might be cured by an objection and you don't make them you waive them and they say these your regularities include but then they say but are not limited to wait so that starts off with irregularities well errors and irregularities Wow so what it comes down to is it really comes down to the conduct of the manner the depositions being taken the conduct of the attorney taking the deposition the conduct of the deponent the conduct of anybody else in the room and so there's a bunch of rules obviously for how you can appropriately take a deposition I'll give you an example there's a there's a case called Rifkin B versus Superior Court RI RI f K IND I believe and I think it was decided in 94 or something like that and it's Rifkin stands for the proposition that you can't ask contention questions at a deposition and what our contention question is those are questions where you have to understand a legal principle and then you have to apply it to either the facts or who can testify to those facts or what documents apply to those facts well that's something that some associates can do we've come across associates that can't just simply from a legal analysis standpoint do that analysis right but it's a lawyer function is what you're getting at I mean lawyers need to be able to put the facts and the law together and come up with some sort of legal analysis that's right and so this lawyer the other day she starts off her deposition we'd produced I don't know what's called a thousand documents so we got a stack of thousand documents sitting there that we've produced in the case yeah and we you know we had our associates spent hours and hours and hours putting those together putting them in the proper categories and we produced them so the the lawyer thought she was really gonna get a slam-dunk here and she looks at MA she looks at our client and she says your your legal position your legal contention here is that you're the beneficiary of this trust is that true and clients like yes and she's like you brought these documents today I want you to point to every single document identify every single document in this stack that supports that legal position like on the spot like on the spot yeah it's supposed to go through and just pull out the ones that's right and so I told the lawyer we weren't doing that and so is that any irregularity that's an irregularity and that's and that's the manner at the manner in the deposition being taken is wrong the conduct that attorneys wrong and then the attorney decided that okay once you got once she got done with the document she tried a few more of those questions and I told her we had to move on or we could go talk to the court about it then she started asking well do you contend that X happened in this case and of course I'm lodging appropriate objections and the clients like I guess so yeah and okay what facts do you have to support that I said no no you know counsel you're gonna have to ask her what you want to know about a particular document if you want to talk to her about document pull it out give it to her you can run her through it you can ask her about it you can ask her about facts right as she understands them but you can't ask her to come up with all those facts so that you can just sit there and poke holes and I think this lawyer had probably learned those tricks because they've been used against her in the past effectively and you know why they're so effective because they're so unfair it's so hard to ask a client to understand a legal principle and apply it to the facts of the case it's it's something that's really difficult to do me aren't you essentially asking a client to do a legal analysis which is what the lawyers do not think not the clients that's correct and so if if it was used against her at some point she probably didn't object I would assume and I would say it's it's not just unfair it's it would be virtually impossible it is and you know you know me I'm very polite at deposition so I did offer to the lawyer to take a timeout and I offered her I could even print out for her Rifkin versus Superior Court I said you know I think if you read this case you know it'll help you in better forming your questions and of course she didn't want to do that cuz her client was there and so we moved on and and but the neat thing about it was we had two days back-to-back depositions of both of our clients and the first day was all of these inappropriate questions yeah second day there was very few inappropriate questions and they came kind of at the end of the second day so I felt better about that and think she read the case I don't know if she read the case or not but I you know I don't mind our clients having to answer questions even hard questions in a case let's let's do the discovery let's find out what's going on but you're not gonna ask them something that they can't answer because they don't have the ability to answer that because it's a legal analysis that's involved as opposed to just the facts like just give me the facts of what happened here were you around dad were you there when he signed the history what was your relationship like with your father did you love your father did you spend time with him tell me all the Christmases I mean did you guys exchange holiday greeting cards I mean all those are very appropriate questions yeah and then you know one of the other questions she said is do you think it's fair for you to steal someone's inheritance and it's almost like me asking you hey Keith when did you stop beating your wife yeah there's no good answer to that right and that's in law school they always teach that one as a classic example of assumes facts not in evidence did you stop beating your wife because it assumes that you ever did beat your wife that's correct yeah when did you stop using methamphetamine Keith well that assumes that I did stop using this [Laughter] so I think that you know if you were to take the time and I actually got together with my group today and we went through and we looked at every single objection that you can make it a deposition and believe me I don't want to make objections at deposition I only make them when I have to but obviously anything that's privileged like attorney-client privilege you you want to make that objection so when they say what does your lawyer tell you about that which I've heard lawyers say that in deposition objection attorney-client privilege and a direction not to answer that question yeah and there's attorney work product we all kind of know what that is are you minute of so if there and you see lawyers do this they try to prove their case in a deposition and you kind of know they're novices because that's really not the place you're you're just trying to get facts witnesses and documents at a deposition yeah to better understand all those things so that you know how to attack someone at trial right so when you see somebody doing the Perry Mason stuff in deposition I'm never impressed by that no it doesn't work anyway assumes disputed facts is true you know do you do you want to just you think it's okay to disinherit people don't you when you don't believe anybody's being disinherited right or still you said the question was why do you think it's okay to steal this inheritance right like well I don't think I'm stealing anything for one thing that's right that's right and then there's a misquoting the deponent you ever seen that where though boyar I mean so don't misquote and say well you testified earlier that you hated your father when in fact they never said anything remotely close to that well my favorite one on that too is that you know they'll take something out of context I was said maybe earlier in the day and they'll say it in the afternoon and then they'll say you said earlier X Y & Z right and you'll object to say you know misstates the evidence and then the attorney will look at you and said well how do i misstate it well I'm not here to tell you how you misstated it I'm just voicing my objection they get a record I'm just making a record cuz I don't have it in front of me you're saying something that I don't think is what was said this morning so I'm gonna object right and then you know I always find it odd when they look at you and say well how was I inaccurate it's not my job my job here and just making a record here okay my favorite one in this lawyer this particular lawyer did this time and time again she would tell either one of our clients you remember when you were at that hearing four months ago and you remember when you said so she doesn't pull a transcript out she doesn't okay and then four months again and then and then she's in she says to you were you at so-and-so's deposition in this case and do you remember when they said again not pulling out a transcript it'd be so easy to just to have the transfer yeah why not have the train you ready with this do you not agree with so anyway the other ones called force calls for speculation and I like this one we're not allowed to coach our clients at least that's what the discovery says yeah I said you can't you can't coach a client so in other words if I tell my client every time I step on your foot say yes that's inappropriate but there are time and scene that one there are times when the opposing lawyer is just fishing yeah and they're asking things that I mean I'm pretty sure my client doesn't know anything about this and because clients are people and a normal day conversation you try to help people out you hear somebody talking and you might even try to like finish the sentence for them you fill in the gaps you feel in the gaps and so when I hear a question where I'm thinking my client doesn't have the basis of knowledge either personal knowledge or any knowledge to really answer that I'll lodge that objection objection calls for speculation because I think you're asking them to guess is what you're doing right right and then there's one I rarely use and the reason I don't use it because I think it's detrimental to the other side if they ask this kind of question and that's vague ambiguous confusing or unintelligible so let people ask confusing questions yeah because then the answer could be left right or in the middle I don't know okay so that's not a big one compound I don't care about compound either and compound is where you're asking two questions and one or more you know what's interesting about the last one - the vague and ambiguous thing is usually when you make that objection what is the question or do they're like oh let me restate it right and I'll make it better you know our partner Jeff made a good point that when somebody makes an objection in deposition he says I seriously consider it in my head and if they've corrected me I thank that Ambala and I restate the question even even more it in better ways so that I make sure I get the best testimony possible and then the other side can't say asked and answered because well no you said that was vague now it's not vague right the other one is that the questions are too general and this attorney also did this you know I find that attorneys that aren't good at deposition they fall into these traps all of these traps and that's why these objections are available yeah and she would say do you remember when you know you and your dad got in that argument yes how do you feel about that okay that's too broad is too generally calls for a narrative response oh great yeah oh great so so that's the other one asked and answered I used this one and this is a scary one for why is it why does that why does the asked and answered objection that we make why do we make it what are we afraid of we're afraid of differing answers so if you say the car is red on one answer you don't want to be asked the question here your clients say it was blue I want to be consistent and so how this normally happens is your client answers a question in the morning in a deposition yeah and then in the afternoon the lawyer comes back and ask the very same question again right and so this is also one of those calls for speculation ideas call objection asked and answered that's already been asked and answered and you know we'll have lawyers turn to us and say that's not an appropriate objection and I didn't ask it I asked em they're giving you like this big long explanation yeah and as in if it you're like I'm just making a record counsel right the court will decide later on right or not which you know I like to think I'm right by the way this lawyer that we were going to guess the other day she also she she didn't move to strike our clients responses she struck them yes I'm striking that answer like wow you are powerful mostly that's the judge that is striking you just have to move to strike Wow the other one is harass her a scene and oppressive and I thought the questions on do you think it's okay to steal your other family members inheritance arrest that's harassing yeah it's not only an argumentative it's harassing yeah and so those you get under their skin that's right it's not appropriate in complete hypothetical I saw this one a lot when I was a young lawyer and I think it's because I learned things by analogy a lot and so I would ask questions by analogy I've kind of cut that out of my deposition skill set which i think is a good thing cuz you just go right to the heart of it yeah right because the minute you start giving well let me tell you let me set this up right you're gonna draw this objection even though nobody really knows what it means and that's an incomplete hypothetical and then I've never seen this objection made before because it's so long but I may try it in a couple depositions to see how it goes objections that are not reasonably calculated to lead to the discovery of admissible evidence so isn't wouldn't that be irrelevant relevance no because relevance relevant is actually a is something that can come in at trial right because if it's relevant it comes in if there's a foundation for it if there's no hearsay something can't come into evidence but in discovery we're not talking about evidence we're simply talking about evidence or anything that could likely lead to the discovery but this is something this is a question that's so far outside the scope of the litigation that it wouldn't even lead to the discovery of evidence not evidence and it wouldn't even lead to the discovery of it that's right if I'm suing you for an estate and I have a bunch of questions about I don't know something that happened in your college days right it has nothing to do with what we're doing now but wouldn't even lead to the discovery of evidence that's right if you know Brett Kavanaugh it's a great example I mean obviously he was going on Korso it mattered but let's say he's in a deposition for an auto accident last year and somebody wants to talk to him about his drinking days in college in college yeah that's just I'm not only that harassing I mean it's a whole litany of these things I'm thinking is that it's irrelevant it is harassing but it's also I haven't heard of this I haven't heard anybody even make that objection before it's a long one the one lat there's two more but one last one would be that when the opposing attorneys taking a friendly witnesses deposition there you have to treat that like a direct testimony so you better be making leading objection objections about leading the witness they need to ask them direct questions like on direct examination no leading which are open-ended questions that's right and so um finally one more this lawyer did this over and over again and I found a real effective way to deal with it and you can see it was really bothering her but she would put a document in front of the client and say do you do you see privileged and protected information do you see that and the client was like yes I see that that's what that says right and so there is an objection that I made up and I think we lawyers make it up and that is look the document speaks for itself right we would say that a trial - yeah document speaks for itself and so I finally got I kept making that objection I was making some headway with it cuz she would roll her eyes and so forth which she just wasn't gonna give up on us every document she put down she would do the same thing so I finally said counsel are you asking my client to tell you if that's what the actual words are on the paper like the black and white words on that paper you want her to tell you those are what it is over there so I did that three or four times and then she went away from that reminds me of that Chris Farley skid on say Night Live where he's sitting with John with the Paul McCartney it's like remember remember when you were with the Beatles it was cool wasn't it yeah that's like the stupid stupid stupid and it Paul's so nice about it well the whole document speaks for itself thing I mean that's confusing until you really understand why that objections there and once you kind of understand how that works and you've been through a few trials then it makes more sense but so many attorneys will put a document in front of somebody and say can you read this and then say that's true isn't it or it says that doesn't or whatever and it's like I don't understand that line of questioning it's just such a waste of time so just for any young attorneys out there Keith and I were in a trial once and we had a lot of documents and that attorney we were going to gets on their side she was an ace and she we learned a lot from her didn't we yeah but part of it was we weren't quite saying do you see what's on this document that's what it is we didn't really know the dance move for that and so just so you know what you do is you take the exhibit and you put it in front of a witness and you say I'm gonna go to paragraph 3 line 2 line 2 says the following we diagnose oh and so with dementia on January 1 2018 although some courts won't even let you read that okay okay maybe maybe maybe not but then I would say then I would say On January 1 2018 were you around your mother did you have time with your mother did you see your mother did you appear at that time to see any changes in her mental cognitive function but none of those questions have anything to do with what's written on the page that's right they just have to do with a time period contemporaneous with what's written on the page yeah and I think that most judges in a bench trial are gonna let you read something like that in an exhibit even though it hasn't come into evidence so I think most cases I've been involved but maybe you've had different experience but I think juries that's a different story but you have to publish that to the jury and then you can move forward with it right yeah I mean it's it's tricky stuff but I mean how many people are good at taking depositions it takes time to really learn the skills and I think you have to work at it I will tell you the bill low I'll just say his name he's an attorney in downtown San Diego Bar None the best only the best taker of depositions I've ever been around but maybe one of the best cross-examiners I've seen in my experience as a lawyer he was phenomenal he was opposing me at the time - it's not a good way to learn but we actually got along beautifully and the reason we got along was because bill knew what he had to do and nothing bothered him and he just knew what he was doing it was you know the case the case ended up settling thankfully but I will say that he is a very fine attorney I would only hope that I get a chance to see him do some more work yeah well it takes skill and it takes time it takes time to develop the skill to know what you're doing so I mean after few thousand depositions you know you definitely know what you're doing at this point so all right well that's about all the time that we have for this week you want to thank you for joining us if you have any questions for us feel free to email us you can reach me at Keith at al Diablo comm or you can reach Stuart at Stuart ste WRAT at al dev law.com we look forward to seeing you next week we'll see you next week.