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(323) 652-9451 - LAAn illustration that’s closer to home. A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery. One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance. This meant he thought there was a 50% chance the trial would not be continued!
I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance. Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period. Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial! The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.
As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less. This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them. For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help:
1. Give yourself more time to prepare. Like everything in litigation, preparation is the key to success. If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now. If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover. The alternative is to risk running short of time without having covered crucial topics. The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.
2. Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first. Speaking personally, I generally have an order I use over and over in taking depositions. It is one that follows logically from how I see the case. This can be a problem, though, when time is limited. Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics. If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense. (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning. It’s fun to see them look confused.)
3. Make a record that will support a motion for more time, if that becomes necessary. You may need more than 7 hours regardless how you prepare and how smoothly the depo goes. If this is the case, begin early creating a solid record to support judicial relief from the limit. The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” There’s a lot of room here. Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ” Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections. In one case, we relied heavily on the videographer’s time-keeping records to show long delays.
4. Resist the tendency to fight opposing counsel on the record. As a reminder, taking a deposition need not be a contact sport. This is especially true if you’re trying to get useful testimony and don’t have enough time. Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time. Focus, don’t get distracted!
5. Go off the record whenever there’s going to be “dead air.” If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it. The same is true if you need to re-group or review your notes or a document between questions. Just take a break.
I hope these help. Good luck.
Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.
Each year I’m faced with the decision which, if any, industry conferences to attend. A shortage of time and money dictates that I cannot go to every conference I would like to attend. Even if I could cobble together enough money to attend more conferences, my time is severely constrained and every hour spent at a conference is an hour that cannot be spent working for a client.
I’ve attended Defense Research Institute (DRI) conferences just about every year I’ve practiced, even though I’ve migrated committees from Young Lawyers, to Products Liability, to Commercial Litigation, to the Labor & Employment conference. I’ve found these are well-organized and pretty useful. I would recommend a DRI conference to colleagues.
A couple of weeks back, though, I attended a completely different kind of conference, which was an exponentially better use of my time. I’m not going to discuss the specifics, because I was a guest and, unlike DRI or ABA, this industry group doesn’t maintain a website, publications and huge membership. But it is precisely because of this concentrated scale that the meetings were so productive.
First, actual membership in the group is limited to in-house general counsel or legal staff members of companies in industries that routinely face the same or similar employment issues. Actual members can bring guests who are outsiders, but membership will never be available to us “outhouse” lawyer. This alone sets it apart from large industry or bar association conferences. There are no sponsors or exhibitors. More importantly, the conference does not become a “feeding frenzy” where hundreds of outside lawyers showboat or compete for the time and attention of a handful of in-house counsel. There may be some marketing component to the conference, but it is low-key–limited to maybe buying someone dinner–and definitely not the focus or sole reason to attend.
Second, the group is smaller, but it is also comprised of industry leaders. Sure, war stories are traded, but they tended to be fresh, relevant and real. Because of the tighter group size, it permitted the agenda to be loose and unstructured in a way that permits the group to spend more time on topical topics.
Another advantage of the limited group size was that the actual members (and some of the guests) knew each other pretty well. I observed that this led to a candidacy of the discussion that I would never expect to see at a larger group function. Anyone who’s tried to build a better mousetrap by committee knows that familiarity breeds comfort which tends to lead to better end product. That’s what it looked like to me, anyway.
It was a good experience; I hope I am invited back. I would surely counsel anyone lucky enough to be invited to attend one of these smaller, more concentrated industry conferences to jump at the chance.
This is probably the easiest step outside lawyers can take to gain client trust. Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date. I try to resist the temptation to think that a hearing or filing was too trivial to inform the client. This is especially important with clients for whom lawsuits are not a normal occurrence. Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.
Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client. I’ve found surprises tend to be disfavored.
Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet. Even when this happens, most clients still like to know you’re not asleep at the wheel. One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.” Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job. A nice way to raise the goodwill quotient is to record the update as a “no charge.” Just an idea.
Ok. Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right? The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty. Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds. It’s not an opportunity to gain trust.
When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic. For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!” Or, “Don’t worry it won’t cost much.” Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”
I’ve been criticized by colleagues because I’m not much of a salesman. I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one. After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.
I’m not much on puffing. But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case. I do this at the outset. And then I try to do it as the case progresses. I like to reassess at critical junctures. A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case. These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).
I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere. I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them. I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs. This is the kind of honesty I believe builds a client’s trust in his or her lawyer.
Another potentially thorny area comes when clients look to us for immediate answers. Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt. With mixed results. I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out. Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.
A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost. We want for the costs to be reasonable and the odds of winning to be strong. We want it so badly that we lose touch with reality. But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take. We can’t do that if we’re not honest with ourselves.
It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories. Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling. But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here. In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition. This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.
Contention interrogatories provide an excellent roadmap to the proponents case. If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case. They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense. If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.
Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses. Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification. Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.
This is not to say that I do not serve any discovery before the deposition. In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset. Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition. This is not always possible, but it’s a worthy goal. I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net). Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.
Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”
I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared.
This is because the training and experience we receive in the first years are pretty important in our development as a lawyer. Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing. But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law. I know there are respected bloggers who would take issue with this assertion. And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop.
I’m not talking about the ability or experience conducting legal research. Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense. What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain. I’m referring to judgment about when to take a case and when to say no. Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you. Judgment about how to shape and deal with clients’ expectations. Judgment about how to manage a client who is persistently untruthful about the facts. Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide.
It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time! This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area. But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.
What will be the impact to our practice and profession from this training vacuum? It could be significant. For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door. Our shrinking, already overstressed courts will become a repository for even more meritless cases. I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam. Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.
The real victims, though, could be clients. Clients who are misled, overencouraged, underwarned or led down the wrong path. Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist. Or at least told that the odds of winning don’t look too good.
Enough. I tend to dislike writers who do nothing but diagnose a problem. A proposal for a solution, even something half-baked, is the least a writer should do.
Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations. As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation. If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack. If economics dictate that tuition needs to increase to make this additional training possible, so be it.
Local, county, state and national bar associations should also help fill the void. There is no shortage of continuing legal education programs, at least in those states which require it. But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers. I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students. Perhaps these programs could be coordinated with pro bono opportunities. I’m just thinking out loud . . .
I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers. It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training. Not just sloppy lawyering or calendaring mistakes, but errors in judgment. I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.
*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).
I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases. They can also be useful in trying to estimate a potential adverse verdict range. I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients. It was only because my firm represented such clients that I was able to get this first-hand experience.
Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets. Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.
The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend. I’m most familiar with the mock trial exercise, so we’ll use that format. This requires, at a minimum, a suitable space and mock jurors. “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes. If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate. Suitable also means private. While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place. Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.
Mock jurors–where to find them? If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury. This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap. I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like. Be prepared, not only to compensate the mock jurors for their time, but also to provide parking. Thought should be given to providing food, assuming the exercise is going to last more than 3 hours. It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.
If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise. However, you still must find jurors from somewhere, which means employees, family and friends. This might mean biases will come into play. While unavoidable, this biases must be “factored into” the results of the research.
If the budget makes it possible, I highly recommend involving a jury consultant. While some research can be done without one, it will be far less focused and productive. The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing. Crucially, a good jury consultant will help synthesize the information gleaned from the exercise. After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.
To provide a concrete example of how this might work, my last mock trial lasted one full day. The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m. They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire. My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement. Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.” Each side then presented about one-half hour of “evidence.” This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence. Some evidence was presented simply as “facts to be assumed.” Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session. Somewhere in there we excused the mock jurors for a brief lunch break.
Most interesting and informative was the post-trial debriefing session. Certain important facts had been purposely withheld from presentation during the mock trial. These were then revealed incrementally. This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations. We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.
There are countless variations on this approach. You can eschew the evidence presentation and simply read facts the jurors should assume. You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received. There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations. The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise. In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.
Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor. Undoubtedly future jury consultants will anchor entire PhD theses on this trial. I don’t pretend to have the education and experience to do any kind of in-depth analysis. But a few interesting points can be quickly gleaned from the interview.
Takeaway Number 1: Vel is smart. But not just intelligent or wise. He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial. According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories. He holds patents and has been a member of the Silicon Valley tech community for over 30 years. I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers). He said in the interview that the jurors were “inundated” with evidence. Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.
On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case. Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations. He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone. If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem. Why?
Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors. I speculate that it took the other jurors no time at all to select Val as their foreperson. They knew from voir dire that he was a techie. They probably paid attention to his expressions and slightest comments throughout the trial. If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important. He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues. Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been. I suspect this was particularly true because I read about (and Vel Hogan alluded to) Judge Koh’s frustrations with the lawyers for both sides throughout the trial. The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial. Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.
Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate. He alluded during the interview to an “Aha” moment he had one night during the deliberations. Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor. But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art). He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly. I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision. All that remained was for Vel to explain his own reasoning to the others.
Takeaway Number 4; The jurors worked in a systematic fashion to reach their conclusions. Several comments during the interview suggested that the deliberations were indeed deliberate. They addressed the “simplest things first.” If they hit a bump in the road, it would not derail their progress. Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations. In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.
The interview is worth watching. If I’ve mis-paraphrased Vel’s comments, please let me know. I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.
I recently defended a fairly contentious deposition. To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him. If I was a lawyer, I’d never let him (opposing counsel) get away with that.”
I was frankly surprised. While I wasn’t obstreperous, I hadn’t been a shrinking violet, either. The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days. I thought the deposition was going swimmingly.
I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way. She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony. I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner. After all, what else was I there for? She wanted John Wayne with a briefcase.
I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.” This is based on experience. In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk. (Turns out I can portray a pretty good jerk–who knew?) I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?
I certainly hadn’t improved the record. (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.) Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness. Sure, there are people used to concentrating and communicating in abusive environments. But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.
At the end of the day, as I explained to my witness, what matters most is the transcript–the written record. (Unless the deposition is videotaped.) Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think. The best revenge, I told my witness, is to win the case!
Because my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury. Still, I’m guessing that this will be news to some, hence the post.
Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles). This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC). If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed. For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies. Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.
I can’t pretend to be surprised that the state is looking for new sources of revenue. Forcing parties to post fees sooner and making the fees nonrefundable is one way. It’s getting more and more expensive to sue or be sued (assuming you want a jury). I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.
I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case. Yesterday, though, I experienced a first. We were deposing the plaintiff. Her lawyer is very seasoned. While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it. I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!
I called him on it. To my amazement, plaintiff’s lawyer became indignant. “I will counsel my client in any way I see fit,” he announced. “Really,” I said. “Well, don’t pass notes while questions are pending.” A half hour later I saw him do it again. Again, I called him on it. This time he became even more indignant.
I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy. If it’s not prohibited, it certainly should be. Who knows what he was writing to her. It was probably just something innocuous, like “slow down” or “just say yes or no.” On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.
Either way, depositions are not three-way conversations. They are question and answer sessions designed to uncover facts. I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client. I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question. But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.
Like I said, my opponent is a very seasoned employment lawyer. He’s brought his young protege associate along with him to every deposition. I wonder if the protege is going to think it’s ok to pass notes to a deponent. Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical. My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way. Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.
