When The Deposition Party Is Over . . .

Every once in a while I get a glimpse into the way another lawyer or firm practices their craft and I have something like an epiphany. I realize there’s a vastly better way to do something, and it makes me want to kick myself because I didn’t realize it sooner. I was privy this week to some work product from a lawyer representing a co-defendant and I had one of these moments.

By way of background, I have long despised the practice of summarizing depositions. When I finish taking a deposition, the last thing I want to immediately do is revisit the details. I’m not sure why, but I usually just want to get on with my life. Then, the next day–which is the very latest possible time that you should try to summarize a deposition from notes and memory–I’m even less interested in summarizing a depo. Not only do I just hate doing it, I’ve actually given the issue a bit of thought and concluded that, in most instances, it does not bring a lot of value to have someone bill several hundred dollars an hour to “summarize” anything, deposition testimony included. That’s why when I am engaged by a client that does not require a summary, I usually keep the reporting of the event to two sentences or less. Later, as we near trial, I find a sensibly written* page/line index is useful if there is a 5% or greater chance the witness will be called to testify. But a summary of what I just heard has always seemed like a painful waste of time.

Well, like I said, I’ve had an epiphany and changed my mind. The summaries I learned to write as a young associate were these kind of narratives: what kind of witness did they make and what did they say. The summary that made me change my tune had 3 distinguishing characteristics.

First, the “summary” part was in bullet, not narrative, form. It wasn’t a long, time-consuming rumination about what kind of witness the deponent will likely make at trial because she has excessive facial hair, or tends to drool, or whatever. Instead, it was punchy and to-the-point. Something like: “Retired nurse. Late 60s. Smart. Detail-oriented.” The information conveyed by the deponent was described this way, too. It probably took the lawyer 10-15 minutes to lay out these details, maybe less if he dictated it.

The second component was how to deal with the witness if she testifies at trial. In this instance, it was a witness of whom we are theoretically afraid. So the lawyer laid out 2-3 points that distinguishes what she said from the facts of our case, and an additional point about how some of what she said is subject to exclusion as hearsay. The real genius of this approach is that it might trigger follow-up that could be missed otherwise. For example, if the witness went out on a limb about something that could easily be proven wrong by a photograph or a subpoenaed record, you should note this and go ahead and assign the follow-up (at least in a perfect world).

Finally, the third component of the summary was a short opinion about the impact of the testimony. It could be as brief as “Problematic for our defense because . . . .” Or something more detailed, if time and inclination permits. The point is that it’s something that could be dictated or written in a half hour or less at the end of the day before you tuck yourself into that first 12 oz. vodka martini.

Because this format is shorter, tighter and more user-friendly, the recipient of the summary will probably be grateful, too. I can tell you my best writing never found its way into a deposition summary–I save that for you, my loyal readers.

And while we’re on the topic of what to do when you’ve completed the deposition, another is to immediately draft written follow-up discovery, or at least make a to-do list of the additional work that needs doing. Most of the time a witness–at least an important one–will open a door that you hadn’t really considered before. Follow up here is critical and, like the details of a dream, easily forgotten if not at least noted right away.

*A sensibly written page/line deposition index is something I might cover in another post, if I run out of marginally interesting things to write about. I know I’m pushing the envelope with this post about deposition summaries, which is why I included the racy picture.

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