Much earlier in my career as an “outhouse” lawyer (i.e., one who works at an outside law firm, servicing corporate clients), the prevalent view among my newbie colleagues was that being the member of an in-house corporate legal staff would be a dramatic “lifestyle” change. By this we meant that one chose the in-house route to trade the higher pay (if only slightly) and chance at partnership for reasonable working hours and no pressure to measure one’s life in billable hours or cultivate client relationships.

It only took about a year before I came to understand the absolute fallacy of this view. At least the reasonable working hours part. I’m sure there are a few of those cushy in-house jobs out there, but the in-house lawyers I’ve known and reported to work as hard, often harder, than I’ve ever worked. And while outside lawyers face pressures to bill hours and attract and keep clients, our in-house counterparts can face equal or greater, albeit different, pressures.

Depending on the industry and corporate culture, our in-house counterparts have responsibilities we don’t see but exist nonetheless. There’s pressure from management that often do not understand or appreciate the value lawyers bring to deals and cases. There’s also pressure to procure and supervise the best possible legal representation, while controlling continually rising legal costs. Finally, in-house legal staff members face the same pressure we all face to manage and balance a myriad of responsibilities within the time constraints of a (hopefully) normal workday.

So enlightened, I’ve come to see how the most valuable outside lawyers are often those who sympathize with these pressures and try to make life easier for the in-house clients to whom they report. Sure, there are “bet-the-company” and unique white-collar trial lawyers who are hired for their prized trial skills and fantastic record, or highly specialized tax or real estate investment trust experts who bring rare knowledge to the table. These will always be in demand. But, like it or not, most of the rest of us are replaceable commodities. I consider myself an excellent lawyer, but I practice in a city with thousands of excellent lawyers, many of whom have the same knowledge and skills I possess. So what sets me apart?

Well, I try to recognize the challenges my in-house counterparts face and take steps to make their lives easier. This is not always easy or even possible. Cases can spiral out of control. Lawsuits sometimes expose the frailties of a company or weaknesses of their policies–not to mention mistakes or other transgressions of management or individual employees. When this happens, my in-house counterpart becomes the dreaded messenger of bad news, unappreciated or worse.

One of the best ways I’ve found to make a client’s life easier is to take steps to improve our communications and information exchange. I do this by trying to shift my perspective, so that I attempt to view the situation and our communications less from my own point of view and more through my client’s eyes. This can be a transformative exercise, and it only takes small changes to make a big difference. Here are three examples of what I mean:

1. I try to improve the frequency of my reporting on the progress of a case, even when very little is going on. The importance of frequent client reporting of events becomes clear when I shift my perspective and consider the ominous void or “sound of silence” that occurs when months pass without any kind of update.  Remember most in-house lawyers report to someone up the food chain; they do not look so good if asked about the status of a case and they cannot provide anything beyond a stale update you provided several months back. Making my in-house counterpart look good to her superiors when they ask what’s going on with a particular case makes her life meaningfully easier.

2. When I do report on an event, I also try to anticipate questions my client will ask and tailor the report accordingly. I think: what questions would I have if I was on the receiving end of this update, and I try to answer those. I’ll readily admit that I rarely anticipate every question, but I try.

3. The narrative we provide on billing invoices is also really important. We may find it lamentable that the days of lawyers billing simply “for services rendered” are long gone, but the reality is that clients look hard, not only at the time and amount we bill for a task, but also how we describe what we did. I’ve always tried to imagine myself on the receiving end of the bill. Would the time and narrative make sense to me? Would it seem reasonable? One suggestion I got from a colleague a while back was that invoices should be written so they show the progression of the case, like a report. I’m not sure if this is realistic, but I do think it makes sense to think about billing descriptions from the perspective of my client and I try to do this as much as possible.

These may seem like minor changes, but that’s the point. If we change, even if only slightly, our perspective, and try to experience the situation and our communications through our client’s eyes, we might be able to make their lives easier. Is there a better holiday gift? Ok, chocolate maybe.

From the District Court:

1. Avoid making frivolous or blanket evidentiary objections in motions for, or oppositions to, summary judgment. This is one instance where the “kitchen sink” approach will simply piss the clerk off, since she will have to research and decide upon the merit of every single objection, regardless how pointless. Give her a break!

2.  Be flexible at oral argument. If the judge issues a tentative, use that information to tailor your oral argument. Try to address issues the court may have missed or evidence in the record that may have been overlooked but support your position.

3.  Read and comply meticulously with local rules and the judge’s standing order. Standing orders will be either posted on the judge’s Procedures and Schedules webpage or will be issued and posted to the docket once the case is assigned.

4.  Stand whenever you speak to the judge. Speak at the lectern, unless the court givs you leave to do otherwise. (And, of course, we know never to traverse the well, don’t we?!?)

5.  Avoid overly broad protective orders. Make sure an issue is ripe for a protective order (i.e., your client knows for sure it will disclose confidential information). Provide specific information to the court describing the documents and an explanation of the harm that will result if not protected.

From the Ninth Circuit:

I previously wrote about my experiences with a unique trial lawyer (and war hero) I had the pleasure of working with too briefly before he retired, Lee Horton. Lee gave me a copy of a primer he wrote with the goal of preparing young lawyers to try their first case. In the preface, Lee listed 4 golden rules on which he premised his successful career as a trial lawyer, focusing largely on air-crash cases. I already described the first rule. Here’s the second:

“I always want to know the four or five facts it will take me to win and the corresponding four or five facts it will take me to lose. I try to develop these facts as a Chronology early in the preparation of a case.”

Right off the bat I’m suspicious: isn’t this overly reductive? Sure it’s possible to reduce the “crucial” facts of a dispute arising from an intersection fender-bender or medical malpractice to four or five for each side, but how do you apply this rule to a complex commercial or intellectual property trial?

Some answers to this objection come to mind. First, bifurcation, or separate trials, of certain issues may be an option. In the event of a bifurcated trial, it is not unreasonable to expect that each separately tried issue can be reduced to four or five crucial facts. But I think a better way of looking at this point–and how I imagine Lee himself would answer the objection–requires a fundamental philosophical recognition that we are much more likely to grab and keep the jury’s attention if we do limit the crucial facts to be focused on to merely four or five, regardless whether the case is a fender-bender or Apple v. Samsung. If you’re preparing for trial and you can’t narrow the absolutely critical facts to just four or five, then maybe you should take yourself back to the woodshed and narrow your focus. Finally, if you really are getting ready to try an ultra complex case that cannot reasonably be reduced to four or five crucial facts, then give yourself the luxury of six, or ten, or whatever. The point is to focus.

Now, the issue becomes how to decide which four or five facts are most crucial? In my own practice, I begin with the jury instructions I expect will be given at the conclusion of trial. The elements of the claims and defenses identify the crucial facts. Many will not really be in dispute. But of those that are disputed, it should be possible to identify just a few that, if proven, will win or lose the case.

The other component of Horton’s second rule involves developing the facts “as a chronology.” I recognize that not every story is told chronologically, but I suspect jurors appreciate stories that are. I know I would. Think about it this way: if you knew you were going to be tested at the end of a movie about exactly what happened, would you prefer the movie to be more like Usual Suspects or Gone With The Wind?† Because we experience our lives as a chronology, beginning with birth and culminating with death (or amnesia), most of us can “follow along” better if a series of important events are told to us chronologically.

Lee Horton carries this “rule” of distilling the case to four or five crucial facts, told chronologically, throughout the remainder of his trial primer. At the end, in the chapter devoted to closing argument, he again echoes the rule:

“I have told you in each of these presentations (almost like a broken record) that, prior to trial, I have a well-defined theme that is consistent with the favorable evidence and deals with the unfavorable evidence. This theme is supported by three to five foundational facts. By closing, the jurors have seen me go to great lengths to weave this theme, and its factual support, through every aspect of the trial. A good closing should have a clear beginning, middle and end. The beginning should have impact and briefly recite the theme and the 3 to 5 facts that support it. It should be followed with a story-like presentation of the evidence, with several ‘impact points’ to keep their interest high.” (Emphasis added.)

It’s too bad Lee retired before I got an opportunity to second-chair a trial with him. It would have been a great learning experience, I’m sure.

†For the record, I am a HUGE fan of complex, nonlinear narrative in fiction (Infinite Jest, Alexandria Quartet) and movies (Memento, Pulp Fiction). But I try to leave that passion outside the courtroom.

Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ’em as you see ’em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.

If anyone reading this blog has not read–and read often–Associate’s Mind, you must absolutely begin following it. Every post has some nugget of brilliance.

Before I  actually read the blog, I assumed from the title I would encounter either (1) ranting about the misery of being an overworked albeit overpaid BigLaw associate à la the old Greedy Associates message boards;* or (2) posts like “Five Easy Tips To Bill 2,700 Hours Before October!” I couldn’t have been more off-base. Instead, I’ve always found thoughtful, well-written posts offering insight on topics ranging from the profession to litigation strategy to Eastern Philosophy.

And, now that I’ve been a partner in an AmLaw 150 law firm for almost 10 years, I feel qualified to endorse the following observation by the blog’s author, Keith Lee:

“Although frequently people speak of always thinking like a “partner” or “partner-level” thinking when in regards to how one should conduct oneself inside a firm –  reject the notion. Just as in the mind of the master there are few possibilities and in the Beginner’s mind, infinite – most partners have fixed ways of thinking and conducting their practice and processes.

An Associate’s Mind should be flexible and open to new ideas and processes, while being mindful of the guidance of those who have tread the road before him.”

I recognize this tendency in myself to “have fixed ways of thinking and conducting [my] practice and processes,” and I don’t like it. When he refers to the beauty of the “Beginner’s mind,” I think I may know what Lee means: I love to watch how my 4-year-old approaches any new issue, problem or obstacle. Her thinking is always “outside the box” (or whatever cliché you prefer) because she hasn’t yet been trained to think inside the box.

As we gain experience and, hopefully, wisdom in our profession and our life, we should strive to retain the infinite possibilities of the Beginner’s mind.

*Note: I have not read Greedy Associates in many years, so I don’t know if such ranting still persists, though I expect it does.

Visiting with my brother over the Thanksgiving holiday, our talk turned to strategy in chess. I confessed that, after about the fourth or fifth move in any game, I’m invariably at a loss for what to do next. My brother pointed out that, like so many games (and sports), the most important factor is to control a particular environment or space within the board.  “Just like you want to control the ‘T’ on a squash court,” he said, “you always want to control the middle of the board in chess.”

Later the same day, in writing another blog post, I was looking at the brilliant primer on trial advocacy prepared by my former partner, Lee Horton. Among his rules in the Preface, I came across the following:

“I attempt to control the case and the environment in which it is presented. The best prepared lawyer is almost always in the best position to control a witness or the flow of evidence. But controlling the courtroom environment is also important. I try to reduce the potential prejudicial variables in a courtroom to as few as possible. Remember, a juror associates everyone in the courtroom associated with you with your client’s claim. Therefore, I only want essential personnel in the courtroom. I also believe that those which do come into the courtroom should be properly schooled on courtroom attire and conduct. This may sound extreme, but I can point to three large cases that were lost because of a lack of consideration of the potential prejudice which can come from an out-of-control courtroom environment. In one case, the jury got mad because of the note-passing between the defense counsel and their client in the audience. In another case, the jury perceived the defense as dishonest because a paralegal frequently found herself in the bathroom with jurors on a break. In the last example, the jurors resented smirks from unknowing associates who came to watch their first trial.”  (Emphasis added.)

Taken in the most literal sense, I’ll admit it’s something of a stretch to analogize the courtroom environment with the center of a chess board, or the “T” in squash. But I think there is something here worth observing. While just controlling the courtroom environment by eliminating harmful distractions isn’t a recipe for automatic victory, the failure to maintain control at any point in the jury’s presence can be fatal.

In a less literal sense, however, there may be something more to the analogy.  After all, controlling the center of the chess board, or the “T” in the squash court, will always put the opponent on the defensive (at least until she over/re-takes the middle of the board or the “T” area of the court). As I’m a lousy squash player, I’m familiar with the feeling of trying to over/re-take the “T”. In other words, I’m familiar with being on the defensive in squash and, as a result, I lose most games.

But I never like the feeling of being on the defensive in a case or in the courtroom (even when representing a defendant). I do know the feeling, though. Naturally it can happen when one party has far better evidence, or when parties are not in comparable financial positions, such that continued or aggressive litigation will financially exhaust one party (or their lawyer) before the other. But these are circumstances beyond any lawyer’s control (at least any defense lawyer–a prosecutor or plaintiff’s lawyer should be able to choose better cases).

More commonly, though, I’ve seen it (or experienced it myself) by coming “late to the party” or being underprepared for an event, like a deposition or a hearing. I so hate that feeling I try never to be on the defensive for the wrong reasons. Like so much else in our profession, it comes down to preparation. By being the better prepared advocate, I control the “T” of the squash court, the middle of the board.

Having the time and inclination to prepare as much as necessary–even over-prepare–really is a great equalizer when it comes to the trial lawyer’s craft. I had the good fortune to practice for a brief time with a distinguished aviation trial lawyer, Lee Horton, who gifted to me a primer he wrote years ago to help young associates learn how to try a case. In the Preface to this primer, he wrote:

“Whatever success I have had as a trial lawyer has been based on the following very simple rules.  These are: 1. Recognizing that there are a lot of people smarter than I am, but only a few that can outwork me.”

I am saving the remaining 3 rules from his primer for future posts. But when I read this first rule I found it to be a comforting revelation. I rarely hold the opinion that I am the smartest guy in any room. But when I remind myself of this first “Horton Rule,” I am empowered with the notion that there is an additional X factor that I alone control: how much time and effort I devote to being the better prepared lawyer in the (court) room.

It can be difficult to know precisely how much preparation is necessary. I find that the first time I do anything I tend to heavily over-prepare. For example, I do not frequently argue before appellate courts. However, a few years back an opponent appealed a favorable ruling I obtained on an anti-SLAPP motion. Fully briefed, it came time for oral argument of the case. I knew that I would want to over-prepare because only then would I feel ready for my first appellate court oral argument. I also knew I didn’t want my client to bear the financial brunt of this need to over-prepare, so I queried a few of my partners who had more appellate experience about how long they would typically spending preparing for such an oral argument. While I ultimately spent about three times as much as my partners suggested, I only billed the client for a third of my time.

We can learn from other disciplines about how much preparation is enough. I studied piano as an adult, and my teacher had attended the Moscow Conservatory and often shared stories from his time learning from one great master or another. He once described how hard he would work to prepare for a solo performance: when he thought he had memorized every nuance of a piece he would set his alarm to go off in the middle of the night. He would wake from a deep sleep, go immediately to the piano and play the piece. Only when he could literally play the piece, including every nuance, while still half asleep did he know he was really ready to perform.

There are multiple ways in which excessive preparation can be a weapon. I have learned from judges and mediators that the party whose counsel is better prepared is always at a distinct advantage in a pretrial mediation or settlement conference. On the other hand, there is no rule that says you have to make your opponent aware how prepared you are. I am a great believer in treating opposing counsel as a mushroom (i.e., keeping them completely in the dark) when it suits my strategy. Sometimes I want the element of surprise that comes from not revealing how prepared I am until it’s too late for them to catch up.

Is there such a thing as over-preparation to the point of diminishing returns? Undoubtedly. The key is to have enough lead time to accommodate the preparation you need without sacrificing your health, including mental health. Like most everyone, I pulled the occasional all-nighter in college and law school. But it was exhausting then, and it would be really exhausting now. Definitely not a good way to start a trial.

I last wrote about a recent presentation made to my office by a retired judge, “Practical Advice and Perspectives From the Bench.”  While I found it most compelling (disturbing) to learn that many (most?) jurists in Los Angeles Superior Court, have a policy of denying even meritorious motions for summary judgment, the judge also offered several items of valuable advice.  While much of this will be familiar to lawyers who regularly appear in court, it is all useful and some of us, myself included, benefit from the occasional reminder.  So, in no particular order, here are some of his more valuable insights and suggestions:

1.  Never, ever, ever preface any argument to any judge using “With all due respect . . .”  This conveys the opposite, essentially, “You, Judge, are a moron, incapable of understanding the most basic legal concept . . .”

2.  Do not give equal time and/or space to weaker arguments.  This dilutes the stronger arguments.  Always lead with your best argument.

3.  Avoid repetition.  In the law and motion context, do not repeat arguments from your client’s motion in your reply.  And don’t orally repeat the argument again during the hearing.

4.  Don’t argue when the tentative is in your favor or you’re otherwise winning.  Sit down and shut up.  Don’t snatch defeat from the jaws of victory.

5.  Always give pin-cites (i.e., to the specific page within an opinion).  While this is how I was trained and how I practice, I would not have guessed pin-cites were so important to judges (and research attorneys).  The judge said his practice was always to look up cases lacking pin-cites and 50% of the time the case did not stand for the cited proposition.

6.  Refrain from petty complaints about opposing counsel.  The judge hears this all day long and you’re not furthering your cause, even if you’re 100% correct.

7.  When you appear on a multi-party case, take the time to orient the judge as to who the parties are, how they fit together in the controversy.  We apparently have “no idea” how confusing and disorienting it is to the judge when five different sets of lawyers appear on a case.

Again, many of these are either common sense or things most of us already know.  But, coming as they did from a retired judge, I thought it would be useful to share them.

Should our trial preparation and presentation be appreciably different when trying a bench trial or arbitration before a single arbitrator? If so, how?

As in most instances, McElhaney offers spectacular guidance on this topic.  Instead of framing the situation as simply a bench or nonjury trial, he reminds us we are still trying a jury trial, it’s just that there is only one juror.  While some of the drama may be diminished, we’re still in the business of seeking a unanimous verdict.  That said, his chapter on Judge Trials from Litigation offers the following advice:

1.  Understand your jury.  “[K]nowing to whom you are talking makes a difference in what you say and how you say it.”  Instead of a half-hour voir dire session, you may have months and months to learn about your judge, including her biases and prejudices.  Make good use of this time.

2.  Win the case before you say anything.  Write a bench brief that really sings, focusing particular attention on the first three pages.  McElhaney quotes Houston lawyer William Pannill: “The first one to explain what the case is really about has a tremendous advantage. The bench brief is an opportunity to do that.”

3.  Don’t relax your presentation just because there’s only one juror.  Use the same care in the order of presentation of witnesses, be concise and concentrate on telling a story.

4.  Preserve objections.  Just because the judge hears evidence before ruling on its admissibility, it remains imperative to preserve the record for appeal.  In fact, objecting isn’t as potentially harmful in bench trials because the judge knows you have to do it.

5.  Finally, even if parts of evidence have been stipulated to, don’t leave these out when arguing the case to the judge or arbitrator.  McElhaney points out that it is sometimes the stipulated facts that “are the best proof of what the case is all about.”

Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics.  Here are some examples:

“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”

“Does ABC Hospital care about the safety of its patients?”

“Was it important to your company that African-American employees not be harassed because of their race?”

Of course the answer to these door-openers is an enthusiastic Yes.  The problem is the inevitable follow-up:

“Then why didn’t you recall product 123 when you learned it was defective?”

“If you cared about preventing harassment, then why did you skip harassment training in 2011?”

These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant.  But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance?  Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions.

One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination.  For this purpose, I do not rely on the language of the deposition notice or subpoena.  Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons.  I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .”  This gives me some measure of control over what is going to happen in the deposition.  For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.”  If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition.  Failing that, I take the position that the language of my objection governs for purposes of scope.

Now, this may seem strident.  However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order.  As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”

Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope.  After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope.  This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition.  I also teach her to listen for my objection that the question is outside the scope.

Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent.  They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful.  Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case.  For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification.  I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions.  Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.

The most important thing is to put my witness on notice that she is likely to be asked soundbite questions.  Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.

I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition.  Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue.  Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations.  In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.*  Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say.  That means he has not adequately prepared the witness for the deposition.  It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition.  One of them is to drive a wedge between the lawyer and the witness.”  (Id. at 53.)

How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story.  The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all).  Capitalize on this dynamic by encouraging the witness to finish telling her story.  In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful.  I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client.  That’s not my goal.  It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it.  Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”

This, of course, requires the examiner to maintain a calm, professional composure throughout.  Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.

*McElhaney credits New York lawyer Patricia Hynes for this strategy.  That either renders this post triple hearsay or I owe Ms. Hynes a royalty.

In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection.  Here’s an example of how it would arise:

Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”

Defending Attorney: “Objection, calls for speculation, lacks foundation.”

Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”

Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”

There are probably a wide variety of reasons why attorneys offer running objections.  I’ve even done it.  First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space.  Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?

But I almost never accept the offer if I’m attending or defending a deposition.  Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one.  If he/she asks a crappy question, it’s his/her fault, not mine.  If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills.  It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record.  If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.

Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment).  The examiner has a choice, upon receiving the objection.  He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond.  Or, he/she can consider the objection, conclude it may have some merit and rephrase the question.  The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question.  This is important where the objection to the question is that it is vague and ambiguous.  While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.

Finally, it can be cumbersome to obtain a ruling on a running objection.  For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript.  The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection.  Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day.  I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.

This is not to say that running objections are a bad idea.  I just prefer, if I am defending a deposition, to deal with each question individually.  If you do agree to a running objection, be sure to remain vigilant.  If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.