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(323) 652-9451Yesterday I wrote about why discovery should be limited to questions or requests which are directly calculated to lead to useful information. I just need point out a single exception to this view: discovery through depositions.
Depositions (live question and answer sessions, recorded by a stenographer, in which a witness is sworn to testify under oath) present an unparalleled opportunity to gather useful evidence. But I’ve found that sometimes it’s necessary to ask a few (or several) extra questions to get the kernel of information you’re looking for (or didn’t realize you were looking for).
Certainly depositions should not be an exercise in free association thinking. Whether the questioning attorney uses an outline or not, there is no question that preparation is needed and you should have a very clear idea going into the deposition what you’re trying to establish. But, beyond establishing exactly what you’re looking to establish, don’t be afraid to explore topics in greater–even random–detail. I’ve seen caselaw suggesting that discovery should not be a “fishing expedition.” When it comes to depositions, I disagree. Don’t be afraid to “fish.”
The most important skill in taking depositions is not asking clever questions, but listening. Only by listening closely, not only to the substance of the responses, but also to intonation, hesitation and a constellation of other emotional “cues,” can we recognize when we might be “closing in” on a sensitive topic. Why is it a sensitive topic? We’ll never know unless we ask the question, and a follow-up question, and another, until we explore it fully. This take patience and persistence.
This makes depositions longer and more costly, which flies in the face of my typical mantra to simplify and be more lean and cost-effective. But there are times that loose, creative deposition questioning will lead to evidence we would never discover any other way. The big reason these loose, unfocused questions can yield better results than a response to written discovery is that written responses are always “filtered” through the mind of (or completely conceived and written by) the witness’s lawyer. That filter is generally missing in a deposition.
Even with this caveat, however, my view remains that any kind of discovery–depositions or written questions or requests–should only be undertaken strategically. While written discovery typically yields information that is carefully choreographed by attorneys, deposition questions can yield important, game-changing evidence precisely because the information is not mediated through the mind of a lawyer. In other words, you have to dig deep to find the gold!
Learn MoreOne of the illusions I harbored as a young defense lawyer was that it was a good idea to “paper” the other side with as much discovery as I could serve. This derived, I think, from stories I heard and read during law school how the biggest, most powerful litigation firms always practiced this way, which led me to think it must be the right thing to do. I think also that, as a young associate, I was always looking for ways to maximized billing opportunities. Actual strategy rarely entered the equation.
I once even made a ridiculous statement to a senior partner, when we were up against a legendary plaintiff’s firm, that we would “serve the other side more discovery than they had ever seen.” Quite correctly, the partner responded that no, we would not be serving more than the other side had ever seen, and no, we were not going to waste our time, energy and client’s money trying. He was absolutely right.
My view on written discovery has evolved to where it should be a tool used more like a scalpel than a weapon like shotgun. As I’ve grown from the associate who has no connection to the bills that go out to a client to the relationship partner who actually sends those bills (and has to manage the client and its expectations when the bill is outrageous), I realize that we don’t (or shouldn’t) do anything just for the same of doing it, or because that’s how it’s done by others (even others at prestigious litigation firms).
I’ve also learned that most clients have a somewhat fixed budget for dealing with a matter. Whether the budget is hard or soft, it’s not there to be exceeded–unless you want to lose the client. There is never spare money in any budget to cover tasks that aren’t calculated to lead directly to a better result. So every task, not just discovery, needs to be calculated to advance the ball.
On the receiving end of written discovery (I’ve been there a lot, too), I’ve never in 20 years been “intimidated” because the other side served an onerous set of discovery. In fact, quite the opposite is often true. An opponent who serves 100 “shotgun” questions or requests that are unfocused and a pure waste of time is revealing to me that he/she has not developed their strategy enough to know what they need to find out.
My view has evolved to where I try to limit discovery to information that I believe will directly benefit my effort to win the case for my client. If I’m on the plaintiff side, I will look for information that will help me establish the elements of my client’s case. I focus heavily, too, on trying to establish that my opponent does not have any evidence to prove one or more elements of his/her/its defense. The same holds true, only opposite, if I’m representing a defendant. This is elementary, but I’ve seen a lot of discovery (and written some over the years) that strayed pretty far off topic.
If I’ve limited the discovery I’ve served to information I really think is important, I have no problem going to the mat (meaning all the way through motion practice, if necessary) if my opponent gives me BS objections and/or provides an insufficient response. Back when I was writing loads of unfocused discovery, the other side did the obvious (objected, refused to respond, etc.) and I found myself having to decide if it was worth the time and expense (and risk, if I lost the battle) to go to court over it. If it wasn’t worth that effort and cost if the opponent balked at responding appropriately, how could I justify having written the discovery in the first place?!?
This is just another example of how we (hopefully) learn and evolve in how we practice our craft as we gain experience. By making this fundamental shift in my attitude about discovery, I’m not only giving my clients far better value, but I’m also not telegraphing to the other side–with a huge, random set of shotgun discovery questions or requests–that I don’t have a clue what I’m doing.
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