So you’re an experienced litigator facing your first deposition in a cannabis case. Maybe you’re representing a wrongfully terminated employee suing a dispensary; maybe you’re representing an investor bringing a derivative suit against an officer for self-dealing; or a processor suing a chain of retail stores for a large unpaid bill. We often like to think of cannabis litigation as a bit of a hybrid area of legal expertise: the savvy cannabis litigator will not only know their way around the courtroom, they must also have a deep understanding of how the cannabis industry works.
To begin, some basic deposition principles. Every good litigator understands that the point of a deposition is to make the deponent (that is, the person being questioned) give testimony which is useful for the deposing lawyer’s client. Sometimes lawyers have related objectives in mind – sometimes, for example, a lawyer will take a deposition as a genuine fact-finding exercise, or sometimes a lawyer might hope to educate their opponent on the weaknesses of their case by obtaining damaging testimony from the deponent in hopes of reaching a better settlement – but none of these related objectives change the basic objective of getting the deponent to say stuff that will help your client.
But when will the testimony help your client? Certainly not at the deposition itself. It is important to remember that your client can lose every single pre-trial motion or engagement, and still win the case by winning the trial or a dispositive motion. So even though your client may push you to beat up on the deponent with questioning as some sort of catharsis, keep your eyes on the prize. A deposition is not where you play your cards or bet, it’s where you draw cards to use later, or better yet, it’s where you make sure you know what your opponent is holding.
Lawyers are often told to never ask a question that they don’t already know the answer to. Although this is certainly true in trial, it is not always true in deposition. Sometimes, especially in a limited-discovery state such as Oregon, counsel will be forced to ask questions to which they don’t know exactly how the deponent will respond, simply as a fact-finding exercise. Even in these cases, however, the deposing lawyer should understand the possible impact of the deponent’s answer, and carefully evaluate their line of questioning to avoid inadvertently signaling their ignorance of the deponent’s response. An unskillful lawyer can give inadvertently show their hand to the other side if they don’t pay close attention to the impression they are giving with the questions they ask.
In preparing to take a deposition, you should always understand what testimony you’re trying to get, and outline your areas of questioning to ensure you cover all relevant topics. However, it is dangerous to rely too much on an outline or, especially, a written list of questions, because your line of questioning must be dynamic and should be tailored at the moment and flexible enough to accommodate unexpected information and explore unanticipated areas revealed by the deponent’s testimony.
All of this leads up to my take on the most important element of taking a deposition: you must be in control. This doesn’t mean that you are literally controlling everything happening at the deposition, but it does mean that you should be able to control the line of questioning and project control and confidence in the deposition room. And you must make the deponent believe you are in control, or at the very least, that they are not in control. There are exceptions to every rule, of course, and some lawyers are crafty and can feed a deponent a line of questioning designed to make the deponent overconfident, but these types of tactics should be employed only with extreme discretion.
The Benefits of Cannabis Industry Insight
The quickest way to break the spell and ensure that a cannabis deponent feels like you don’t have everything under control is to not understand the cannabis industry. For example, if you are deposing someone who works in a licensed business and you don’t understand what areas of the premises are legally-required to be under video surveillance, or you don’t understand the difference between METRC and BioTrack, or the difference between ice hash and BHO, or what the significance of the flowering stage of plant growth is or how long it can take, the person who you are deposing is going to lose respect for you and it will be harder to keep control over the deposition. Displaying ignorance will also prevent your deponent from loosening up and getting comfortable, although, again, crafty practitioners have been known to feign ignorance in service of making a deponent overconfident and give the game away; again, only do this if you can already do it the other way.
Unfortunately for lawyers who do not regularly practice cannabis law, there is no primer you can review to ensure you give the impression of industry knowledge. The best thing you can do is to ensure that you at least have a working knowledge of the area of industry your deponent is involved in; for example, if you are deposing a farmer, you should learn about regulated cannabis farming: when the plants have to go into the ground, how long they take, when tags must be placed on the plants, what a grow canopy is, what an immature plant is and what is the significance of a plant being classified as immature, and et cetera. You are also welcome to call our firm to chat with one of our experienced litigators; it’s hard to measure, but we believe we handle a substantial plurality of the cannabis litigation matters in Oregon, we have been working in this area for many years, and we are always happy to chat with folks who are new to the area.
You can contact Andrew DeWeese at firstname.lastname@example.org or 503-488-5424.