On assignment this week in Kyoto, the Planet Depos Asia team found themselves inspired by the spirit of Zen that pervades every aspect of life in that time-honored city. As Japan’s former capital, Kyoto contains over 2,000 Buddhist and Shinto shrines and temples, and is also considered by many to be the preeminent center for the study of Zen in Japan.
The unique nature of Zen lies in the fact that it is more of a way of life than a religion. Similarly, by understanding how the principles of Zen influence the Asian mindset, attorneys can fine-tune the discovery process to ensure that they and the witness are on the same wavelength. This results in a more effective deposition by reducing the probability of misunderstanding.
For example, Western influences notwithstanding, respect and politeness continue to be the glue that binds Asian society. However, this same emphasis on respect and politeness can frustrate an American attorney’s efforts to take depositions of foreign nationals pursuant to the Federal Rules of Civil Procedure.
FRCP Rule 30(d)(1) states, inter alia, “Unless otherwise stipulated or ordered by the Court, a deposition is limited to 1 day of 7 hours.” This effectively means that time is of the essence when taking depositions in federal cases. When one also takes into consideration all of the other time-consuming details specific to depositions of non-English speaking witnesses, using time effectively becomes even more important.
With realtime reporting and live streaming of testimony provided by Planet Depos, attorneys can greatly reduce the amount of time required for interpretation, as well as increase the efficiency of the deposition process as a whole. At the end of the day, however, the way in which the questions are framed by the attorney can mean the difference between eliciting the facts needed to support their cause of action or squandering time simply trying to obtain an answer.
This is where framing the question and understanding the Asian mindset intersect. That is to say, in Asian society it is considered impolite or disrespectful to answer a question with a simple “no” or “I don’t know.” As such, deponents will respond in a way that makes it seem as though they are avoiding the question. Replies such as “perhaps if you explained your question better I could give you an answer” and “what do you mean when you say that” are among the most common responses given by Asian deponents to yes-or-no questions.
It is out of politeness rather than evasiveness that Asian deponents will go to great lengths to avoid saying “no” or “I don’t know.” It is therefore incumbent upon the deposing attorney to frame their questions in such a way as to elicit an appropriate response. Knowing your witness means being able to distinguish between evasiveness and politeness. An appreciation of the subtle influences of Zen on the Asian mindset allows the informed attorney to make this distinction with ease, thereby ensuring a successful outcome.
(Photos by Tom Feissner, Certified Legal Video Specialist, Planet Depos, Seoul, South Korea.)