The New York Times has a new video series where they hire professional actors to act out depositions based on transcripts and video recordings of depositions. How is this journalism?
I think it is journalism and excellent journalism. Here’s why….
First, it’s entertaining and this is a legitimate aspect of journalism. To present reality in an attention-grabbing way is to inform.
Second, to the extent the public does not know how our justice system works (and how it does not work), these “Verbatim” videos offer admittedly anecdotal but still powerful explanations.
This video, in particular, shows one way in which our system breaks down.
There is no experienced civil litigator out there who has not sat across from a witness in a deposition who blatantly lies (and knows that the examining lawyer knows the witness is lying). There is no experienced civil litigator out there who has not sat across from a witness in a deposition who pretends not to understand a question when the witness fully understands the question. There is no experienced civil litigator out there who has not sat across from a witness in a deposition who simply refuses to answer a question when the witness is legally obligated to answer the question.
I can identify the problem — disappointingly widespread cultural tolerance of lying, dishonesty, and obfuscation, a very real problem that makes civil litigation more expensive — but it is more difficult and maybe impossible to find a solution.
In other countries’ legal systems, depositions may not go forward without an officer from the court being present. There is little doubt that a judge’s presence would substantially mitigate this problem but that would increase the expense a great deal (and would likely not entirely eliminate the problem, alas).
Another potential approach would be for courts to penalize such conduct more than they do now. Courts could impose monetary penalties on witnesses and also on lawyers who obstruct and interfere with civil discovery with childish defiance. Again, that would increase the expense a great deal (and would likely not entirely eliminate the problem, alas). It might also result in unfair unpunishment of legitimate advocacy by hot-headed or misguided judges. (Linked here is discussion of a judge who over-reacted, at best.)
Ultimately, I conclude that there is no solution to the problem of the increased cost of our justice system due to its dependence on honesty. But I would point out that civil litigators in our society are often reviled and scorned for shortcomings and the high cost of our legal system. Many clients, witnesses, and critics of our legal system might want to undertake some self-reflection as to how their conduct taints and hobbles the system.