A Legal Kvetch

Nicholas Casper, 2015 CCCBA Board President

Nicholas Casper, 2015 CCCBA Board President

There are certain trivialities in life that cause my blood pressure to spike and my teeth to clench. They are commonly referred to as “pet peeves,” but I prefer a nod to my Jewish ancestry with “kvetches.”

Some arise unpredictably, but with enough regularity to rise to kvetch status, such as when a pedestrian obliviously saunters across the street with a “Don’t Walk” signal in front of my green light while immersed in his iPhone.

Others arise with such precision and predictability that you could set a watch to them. When I go to CVS, I know well in advance that my purchase of three items means the printer will spit out a three-foot receipt, yet the needless waste still aggravates me.

Or, as soon as I say, “Add guacamole,” my pulse quickens in anticipation of the inevitable “Guacamole is extra, is that okay?” The extra charge for guacamole is on the giant sign behind you! Also, it is 2015. We all are aware of the volatile global avocado economy and understand that guacamole is extra.

My law-related kvetch falls more into the second category: It happens almost every time, yet it still grates on my nerves. As litigators are familiar, attorneys give a common set of admonitions to the witness at the beginning of a deposition, setting out basic ground rules to ensure a smooth proceeding and a clean record.

One of the common admonitions is to explain the difference between an estimate and a guess. Many of you know what’s coming … the darn table analogy!

It goes something like this: “If I were to ask you to tell me the length of this conference room table, you could estimate it, correct? It is in front of you and you can see it. But if I were to ask you to tell me the length of the desk in my office, you could only guess, right? You have never been in my office and you have no basis for telling me the length.”

Part of my annoyance with the table analogy is how frequently lawyers use it. Perhaps it is confirmation bias, but I feel that the use of the device is becoming more frequent, with the probability of it being used in any given deposition approaching the number one. I know it is coming, I can feel it is coming, and when it comes, aargh!

It is as if the analogy is taught in law school as one of the core tenets of effective litigation practice: “Whenever distinguishing an estimate from a guess, bring up tables.”

My other issue is that it seems wholly unnecessary. A simple “Do you understand the difference between an estimate and a guess?” or better yet, “Don’t guess,” would seem to take care of the rule. We don’t provide a cute, pithy analogy for the other ground rules that are equally straightforward.

Perhaps my kvetch is simply grounded in other inscrutable factors. Maybe it is the reflexive manner it is given. Maybe it is the insinuation of arrogance by the lawyer, communicating, “Not only do I have my own office, but I have a glorious desk, the length of which you could never fathom. Oh, and it is walnut with mahogany inlay.”

Maybe it is that I have sat in many depositions and am searching for gripes. I recognize that this is likely a “me problem.”

What are your law-related kvetches? I am sure you have some. What they are exactly, I would not deign to guess.

As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving catastrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials.

Filed Under: President's MessageSpotlight


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