How do you give research assignments to junior lawyers? Probably in a
way that leaves the junior lawyer wondering exactly what he's supposed
to be doing. That was my experience anyway when I was a junior lawyer
who used to get a lot of assignments. After awhile, I learned to stick
around in the senior lawyer's office until I'd figured out exactly what
my assignment was. Remembering to ask questions before I got started was
a good lesson to learn.
At Litigation and Trial, Max Kennerly lists his "ten rules for depositions," beginning with "use plain, simple language" and ending with (almost) "don’t get into a stupid bickering match with the witness." A useful post.
Your preparation for depositions will generally be much easier if you think about the ways the testimony will be used at trial. This tip applies to most pretrial discovery: it's almost never an end in itself, but something that will be used later in front of a jury. It's no accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed some actual trials. When trials are scarce, even reading trial transcripts helps.
The looking-ahead-to-trial tip can be especially useful for deposing your opponent's experts. If you often rely on outlines prepared by other lawyers, this method will also help you understand why it's important to ask the questions lawyers typically ask when deposing experts.
An article titled "Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion" written in the Journal of Empirical Legal Studies provides the answer as to how personal injury attorneys do as a class in estimating verdicts: not good.
The average error for lawyers in predicting the value accurate was 0.387. For a verdict of $100,000, this is equivalent to an estimate of $244,000 or $41,000. That's a big range. With those estimation skills, it is a wonder more cases don't go to trial.
As Miller notes, "[I]t is important to underscore how unbelievably important this skill set is for trial lawyers." Read the full post for ideas about improving your own "estimation skills."
Part of the problem is that we’ve all been trained to do things a certain way. Someone writes a letter, you write back. Someone threatens, you threaten back. Someone raises their voice, you speak louder. Why are you doing this? What are you accomplishing?
For solutions to the problem, read the whole post.
In this series of posts, I'll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog's deposition category, I thought I'd try to reorganize some of them in a new way.
I'll begin with the first five ways a lawyer can ruin a deposition. I've been guilty of all of them at one time or another--
At Abnormal Use, Jim Dedman asks, "Why is discovery rarely, if ever, depicted on lawyer television shows?"--
When is the last time you saw a witness being deposed on a lawyer television show? When is the last time you saw a young associate in a frightful warehouse in the middle of nowhere performing document review? When is the last time you saw a lawyer responding to discovery requests or lodging objections to same? Is it that such tasks are not cinematic in nature? Surely, that’s not it.
I think Dedman is correct when he surmises that the people who write television shows don't have the legal experience from which to create scenes about discovery. (He has some other theories too--read his post.)
Certification Matters, a website operated by the not-for-profit American Board of Medical Specialties (ABMS), will tell you if a specific doctor is board certified. The site also contains other information that might be helpful in researching medical experts involved in litigation (or to find out more about doctors for personal medical care). Free registration required.
First, and most importantly, your major role is preparing your witness. 99% of defending a deposition properly is the preparation. If you prepare your witness properly, you should be able to just be a potted plant . . . . So how do you do that?
This quote is from the middle of the post, which includes a lot of basic information about defending depositions, including some advice for preparing a client for a deposition.
Since I started this weblog in January, 2004, I've written 1,037 posts, enough material for a very large book. Many of these posts are assigned to one or more categories. You can get to these categories by clicking on the list that appears on the left side of the weblog. I've also listed the categories here, followed by the number of weblog posts that have been assigned to each: