Two blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by Philly Law Blog blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”

Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark, might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.

It’s not enough. Or nearly enough.

I agree that preparing your client or witness is surely the single most important part of your job in defending the deposition. Clients or witnesses who have never been though litigation are quite literally astonished when I suggest that we spend a half or full day preparing for their deposition. And that’s often not enough. I once spent three full days preparing a sexual harassment defendant for his deposition–and I was still unsatisfied with the result. So yes, Max Kennerly is right that witness preparation is the first priority.

But even if you spent a full week preparing the witness (yes, we do spend weeks preparing certain key witnesses, particularly if they do not speak English or the subject matter is particularly complex), your job is not done. There is your responsibility to “preserve the record” meaning making objections when questions are not technically correct. Jordan Rushie got that right.

But, in my humble view, adequately preparing the witness and interposing appropriate objections is still not enough.

My goal at every stage of the proceedings in a lawsuit is control. I’m not so naive that I think I can actually control very much. There are about a thousand things in every lawsuit that are simply beyond my control, the top of the list being the judge. But that doesn’t mean I don’t try to control every single nuance as best as I can. I’m a control freak. Control. Control. Control.

When I present a witness for his or her deposition, I am being forced to relinquish control over a very important aspect of the process. In civil litigation, at least in my experience, depositions and documents win or lose a case. There’s very little I can do about bad paper. If there’s a bad document out there and my opposition has properly asked for it, and it’s not privileged, then I’ve got to produce it and we’re stuck with the consequences.

Depositions are different. Unlike bad documents, depositions don’t just exist. A deposition is more of a process. Even when we’re done preparing and I object whenever necessary, my opponent still must ask the right question and get a damaging answer before the evidence comes into existence. That’s a big leap, and I want to make it as difficult as possible to cross that chasm. And I’m not talking here about inappropriate objections, improper instructions not to answer, or being a difficult jackass, or other ethically-challenged conduct. But I do want my opponent to know I’m listening closely, to every word, and I’m not going to make it any easier for him/her than I absolutely have to. Otherwise, what am I getting paid hundreds of dollars an hour to do? A well-trained monkey can object when questions are “vague and ambiguous.”† I think our role is bigger than that.

I learned pretty early that you want to create a “tight” environment from the start. By this, I mean that, even if I generally have an extremely cordial relationship with my opponent (and I usually do), I don’t want him or her to think that this particular deposition is going to be easy or fun. I want him or her to feel that our time on the record is “borrowed time,” that he/she is taking up my client/witness’s extremely valuable time, that we’re inconvenienced, that his/her goal should be to finish up as quickly as possible. It’s been my experience that, in most instances, this results in a shorter deposition. Shorter deposition = less chance of damaging testimony from my client/witness = a good thing.

Another way I create a “tight” environment is by interposing a fairly stiff objection early in the deposition. By early I mean in the first 20-30 minutes. This signals to my opponent that I’m listening, and that I don’t intend to put up with any baloney. I do try to avoid speaking objections, because they’re unprofessional. On the other hand, if I need to say additional words to fully state the objection or my nonspeaking objections aren’t getting anywhere, then I’ll say what needs to be said. Again, while it may be my opponent’s deposition, I’m going to retain as much control as I can.

I also want to dictate when we take breaks. At least every hour. I don’t want my witness getting fatigued, hungry, exhausted or even comfortable. When he/she gets comfortable, that’s exactly when the filters in his/her brain start to shut off and the damaging evidence is created.

I’m also not above verbally bitch-slapping scolding any opposing counsel who gets too high-handed with my client. Again, I’m not getting paid several hundreds of dollars an hour to sit back and watch some unprofessional lawyer abuse my client. I’ve come to believe that civility really is best 99.9% of the time. But, if an opponent is abusing my client with his/her examination, I have two choices: I can terminate the deposition or I can push back a bit. If I give some push back, perhaps we can alter the course and finish the deposition without bothering the judge. If I terminate the deposition, motion practice is sure to follow and this is costly, and the judge might not see things my way.

We sometimes walk a fine line when defending depositions. I don’t want to be obstructionist, or an asshole. But when we’re on the record, my job is to do everything ethically within my power to prevent that record from containing evidence that is damaging to my client’s case and/or helpful to my opposition. I respectfully disagree with the notion that this obligation is satisfied by “just showing up” or even by just making objections.

†I mean no disrespect to monkeys, trained or otherwise.

The path from the first day of law school to an aspiring lawyer’s first job is an increasingly precarious journey, with a shrinking margin for error. I like to think others can learn from my mistakes, which is why I am going to describe the dumbest thing I did when I was in law school. (I also continue to be inspired by Jordan Rushie’s brutally honest post on the Philly Law Blog specifically on the topic of hubris.)

Like every law school, Loyola (Los Angeles), where I attended, offered classes in Trial Advocacy. Believing I wanted to be a litigator, I took “Trial Ad,”  and had a fabulous adjunct professor (John McNicholas), who is a gifted trial lawyer and extremely successful fellow Loyola alum. I received a great education about how to try a case. The only problem is that the nuts and bolts training I received was not done in an actual courtroom, but in a posh new classroom constructed (at students’ and alumni expense) to look like a courtroom. Other members of the class served as judge and jury.

While I learned how to introduce evidence, lay a foundation, examine and cross-examine witnesses, object, respond to objections, etc., there was none of the extreme pressure, i.e., fear factor, that comes with trying to introduce evidence, examine a witness, etc. in a real court of law, in front of a real judge, with real facts, real victims, real defendants and real consequences. Plus, even though I “tried” a theoretical case during class, there were no bragging rights that came with completing my Trial Ad class; I couldn’t tell prospective employers in an interview that I had any real courtroom experience because, like most law students, I had no real courtroom experience. But imagine how impressive I could sound during an interview if I could say I’d cross-examined a witness in a preliminary hearing!

As it happens, one of the professors at Loyola (at least at that time) had created a special program in conjunction with his connections at the LA City Attorney’s office. Instead of one semester, this trial advocacy class was a full year, the first semester being classroom training much like I received, and during the second semester students would spend a day or two (I can’t remember which) “embedded” in a City Attorney’s office and acting as a prosecutor for criminal preliminary hearings. The cases weren’t all that sexy or complicated–drug possession, perhaps prostitution–but this was the perfect training ground for a future civil litigator or criminal lawyer to develop crucial skills, only with real victims, defendants, witnesses and judges. Even better, while the professor would determine students’ grades for the first semester of classroom training, it would fall to the Deputy City Attorneys to propose a participant’s grade for the second semester. (I never heard about anyone getting below a B, and As were the norm.)

The catch? Of course the program was only open to a limited number of students, and a student who wanted in had to interview for a spot. You know the rest of the story, right? You’re thinking I signed up, totally choked on the interview and didn’t get invited. Or that I missed the deadline to sign up. Or I got in but was kicked out for some ghastly reason or another.

Nope. It was none of these. Instead, even though I recognized it was a great opportunity, I purposely let the time come and go to sign up and interview. Why? Because I was insulted by the fact I was required to interview. I thought it was ridiculous–a needless imposition. It seemed to me that, if I was paying the same tuition as everybody else, I should automatically be allowed to take the class.

In other words, I let some lame, unrealistic expectation stand between me and an opportunity I knew even then was a golden one. Of course my law school girlfriend signed up, interviewed and got in. And she loved it. Learned a lot and had a blast. And she got an A both semesters.

Hear this: I made this mistake so you don’t have to. Don’t do it. Whether it was immaturity, hubris, unconscious fear of rejection (or fear of success)–whatever the reason–don’t let something stupid hang you up and prevent you from seizing a golden opportunity. Don’t disappoint me; I’m watching.

I was really impressed by a recent post at Philly Law Blog, in which Jordan Rushie discusses a humbling experience he had early in his law practice. What was so great about the post (and I highly recommend it, as well as the blog generally) was Rushie’s brave willingness to expose the kind of judgmentally-impoverished immaturity most of us have when we first start out. I bet many of us who have graduated into our second, third or fourth decade of practice could, if we were brave enough and our memory was up to it, recall an instance where we used similarly poor judgment.

I can’t speak for doctors or other professionals, but I know the first couple of years practicing law can be a challenging time. I think it stems largely from the following: when we start out (1) we’ve invested 3 years and a pile of money to get a degree which suggests we know what we were doing; (2) our employers and/or clients hire and (hopefully) pay us because we’re supposed to know what we’re doing; (3) the professional and ethical obligations imposed on us are premised on the assumption that we know what we’re doing, BUT (4) we don’t really know what we’re doing. When we get into a situation we’re unprepared to handle, we want so badly not to admit or show that we don’t know what to do, we often punt. While it works sometimes, other times punting can get us into a predicament that’s embarrassing, or worse.

This is compounded by opposing counsel who, if they have any experience at all, will figure out pretty quick that we are brand new and don’t really know what we’re doing. Some will exploit this.

My first deposition was a classic example. I was a first year lawyer, working at an insurance defense firm. While not nearly as prestigious (or well-paying) as BigLaw firms, starting your career representing insured clients in a variety of cases has tremendous value as a training exercise. While you’re not litigating Apple vs. Samsung, you generally get the chance to take depositions, argue motions, handle arbitrations, mediations and settlement conferences–in short, lawyering–from your very first day.

I had sat through a couple of depositions taken by partners in the firm–because God knows you’re not taught deposition skills in law school–and then let loose to take my first deposition of a third-party witness in a fender-bender case. It was so hokey, I think we took the depo at the witness’s home. In any event, I got there first and waited on the doorstep for my opponent to arrive. She did, and seemed friendly enough at first. She had a harried appearance, in her mid-late 40s. I must have looked really green, because pretty early in the conversation she asked “Is this your first deposition?” What was I going to do? Lie? Get offended? Tell her it was none of her business?

The court reporter arrived and swore in the witness. I did fine through the admonitions. But once I started getting to the meat of the testimony my opponent quickly adopted this habit of interjecting, either when she thought my question wasn’t clear or good enough, or to “clear something up” after the witness responded. She never objected to my questions, just went through and “fixed” them as we went along. Of course she fixed them in a way that rendered useless any testimony that might have been useful to my client. I remember thinking at the time that this didn’t seem right, that it wasn’t how the depositions I’d watched had gone, but I didn’t have the balls (at the time) to shut her up.

In the end the transcript of the deposition was pretty useless for purposes of my client’s defense. But it wasn’t the end of the world. If the carrier paid $8,900 to settle the case instead of $8,500 because we didn’t have a great third-party witness deposition to use at trial, it didn’t seem to bother the partner who’d sent me on the depo. He just laughed when I talked to him about it. He said, “Next time, tell her it’s your dime and she’ll get her turn.”