The Illinois Trial Practice Weblog

Preparing Witnesses for Depositions: Here's a Step That's Often Forgotten

Neglecting to have a client review his or her prior interrogatory responses is an especially common deposition-preparation error. Without this review, consistency in the client's sworn responses becomes difficult to achieve, especially when the facts of the case are complex or the passing of time is causing memories to fade.   

When preparing witnesses for depositions, make sure they review all their prior sworn responses, including past testimony, affidavits, and interrogatory answers.

Craft a Cross-Examination Using the Witness's Own Documents

Here's a useful way to conduct a cross-examination in document-intensive cases:

• Choose statements from documents associated with the witness that are helpful to your case (e.g., from a witness's internal memo, "our division is weaker than our competing divisions by 25%");
• Put these statements in the order you want to address them in your cross- examination;
• Turn the statements into leading questions, (e.g., "Your division was 25% weaker than your competitor divisions, wasn't it?");
• If the witness disagrees with the statement, use the document to get the witness back on track.

When the technique works, it can be very powerful. After the jump are a few examples.

Communicating with Juries: Introduce Scientific Terms Slowly

I know a lawyer who cites psychological research to say that when people hear new, unfamiliar terms, they become so distracted that they are unlikely to pay attention to the next seven words. That's why at trial, any jargon that might be unfamiliar to jurors must be introduced to them with the utmost care. Here's the wrong way:

Q. Doctor, please explain blood flow to the heart?

A. [In a sonorous tone]. Certainly. The heart is actually a double pump forcing blood along a complex network of 60,000 miles of blood vessels, from which oxygen-poor blood arrives from the body and collects through the superior vena cava into the right atrium, an upper chamber of the heart, while at the same time, oxygen-rich blood is flowing from the pulmonary veins into the left atrium (meaning that, as an aside, the pulmonary veins are the only veins in the body carrying oxygen-rich blood), all of which initiates a contraction in the walls of the heart which force blood simultaneously through the tricuspid valve on the right side on the heart -- which is on the left in this diagram -- and the mitral valve on the left -- here in the diagram, on the right -- which then results in the blood collecting in the right and left ventricle before flowing into the pulmonary arteries (right side) and the aorta (left side).

Q. Thank you very much, doctor. And next, let me ask . . .

In stark contract, here's the right way to introduce new terms drawn from the same jury-sensitive lawyer who claims to introduce unfamiliar scientific words in exactly this way:

Q. That's a model of a heart, doctor?

A. Yes, it is. The blood comes in from the rest of the body here, to the right atrium.

Q. Atrium? What's that?

A. That's a chamber of the heart.

Q. You mean like rooms in a house? The first room of the house you enter when you go through the door--that can be an atrium, right?

A. Right.

Q. Same word?

A. Right.

Q. And where does the blood flow after that?

A. The right ventricle.

Q. What's a ventricle?

A. That's the chamber right below the atrium.

Q. Right below that first room in the heart?

A. Right.

Q. And what does the right ventricle do?

A. It pumps the blood towards the lungs.

Q. Oh, so the blood leaves the heart there through the ventricle, which is like a vent? Same type of thing?

A. Same type of thing.

Q. So the right atrium is where the blood is coming in from the body, and the right ventricle is where it's going out to the lungs?

A. Right.

With this method, things move a little more slowly, but in contrast to the first example, the jury is more likely to understand what's happening and can use the new words they are learning as building blocks for understanding more complex concepts.

Jurors Who Lie During Voir Dire: Trips for Drawing Them Out

Here's a post to read when you're gearing up for your next voir dire: "When Jurors Lie, Part II." It's from the Deliberations blog, written by Anne Reed.

When you're finished reading Reed's tips for exposing jurors who are lying to you about their biases, you can continue reading Deliberations for "law, news, and thoughts on juries and jury trials."

A Roadmap for Privilege Issues in Federal Court

As I mentioned yesterday at Legal Underground, there was an interesting and useful order issued a few days ago by Judge Fallon in the federal Vioxx MDL: "Order & Reasons dated August 14, 2007" (pdf, link from the Vioxx MDL website).

The ruling concerns defendant Merck's attorney-client-privilege objections on a representative sampling of about 30,000 documents. The ruling is useful for analyzing privilege claims by large corporations, and discusses the following issues:

• General principles re attorney-client privilege, pgs. 10-13;
• Issue: whether the primary purpose of a communication is really legal advice, especially in light of ease of email within corporations, pgs. 13-18;
• Issue: the arguably enlarged scope of legal communications within corporations that are highly regulated by agencies such as the FDA, pgs. 18-23;
• Analysis of the defendant's "reverse-engineering" argument, i.e., that by producing documents not technically privileged, readers would be able to "reverse engineer" the legal advice that preceded the communications, pgs. 23-25;
• Issue: the way in which the choice of a method of organizing a corporation's working units (and the powers it gives its legal department) can affect claims of privilege, pgs. 25-28.

The opinion is also interesting for the procedure the Court used to analyze claims of privilege for the massive set of 30,000 documents, which comprised about 500,000 pages of materials. Rather than analyzing each document, the Court looked at a representative sampling. In his opinion, Judge Fallon noted that he went into "considerable detail" in the hopes that the procedures employed by his Court would serve as a guideline to resolving privilege issues in complex cases "in the dawn of the age of electronic discovery."

A post at the Pharmalot weblog captures the essence of the undertaking--

Fallon called the battle “a time consuming and expensive saga that has spiraled out of control.” The cost to review a sample of 2,000-plus documents exceeded $400,000, which is to be split by Merck and plaintiffs’ lawyers, and took three months.

Depositions: Reprising the Podcasts on Advanced Techniques

In case you're looking for my three podcasts on advanced deposition techniques, which I posted at Legal Underground, I'm reprising them here--

Advanced Deposition Techniques #1: Five Tips for Asserting Control at Depositions

Advanced Deposition Techniques #2: Four Ways to Use Psychology at Your Next Deposition

Advanced Deposition Techniques #3: Miscellaneous Tips for Expert Depositions

Combined, these three podcasts have had nearly 1,500 downloads, which is more than I thought possible for something as dry as depositions. Maybe I'll do some more!

Hearsay: The Business Record Exception and Opinions in Illinois

Question: In Illinois, are documents otherwise admissible as business records under Rule 236(a) barred because the documents contain opinions?

Answer: Generally, no.

The foundational requirements for business records are found in Illinois Supreme Court Rule 236(a):

Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term "business," as used in this rule, includes business, profession, occupation, and calling of every kind.

The rule itself contains no language excluding records that contain opinions. Illinois courts haven't imposed such limitations either. In a recent case, Troyan v. Reyes (3d Distr. 9/29/06), the Third District ruled that opinions contained in medical records could be published to the jury even without a sponsoring witness, since the medical records were established to be business records. The court commented:

Illinois courts have held that “Rule 236(a) does not bar the admission of business records because they contain opinions.” Birch, 139 Ill. App. 3d at 407, 487 N.E.2d at 806 (safety study that contained opinions was admissible business record); see also Amos v. Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646, 548 N.E.2d 96, 102 (1989) (accident reports containing conclusions and opinions fall within business records exception); People ex rel. Schacht v. Main Insurance Co., 122 Ill. App. 3d 826, 833, 462 N.E.2d 670, 675 (1984) (financial documents containing opinions were proper business records).

For more about court's ruling in the Troyan case, see my previous post, "Admissibility of Medical Records as Business Records in Illinois."

Writing Tip: Draft Your Brief Before Reading Your Opponent's

It's a good way to stay on the offensive even when you're responding to an opponent's brief: write your first draft even before reading your opponent's brief.

Sound nuts? Maybe so, but it will make your written work stronger. It's also Tip #86 in Bryan Garner's The Winning Brief--

This tip will help you develop your case as well as you can. You won't find yourself in the defensive posture of merely responding to what your opponent says. Too many responsive briefs are entirely reactive.

If you prepare a draft explaining why the court's decision was correct, you'll be in an enviable position when your opponent's brief arrives. You'll be able to massage the draft to account for your opponent's points.

Many times, this tip works in the lower courts too. When you respond to discovery or pleadings motions, you often know your best arguments even before your opponent's memorandum arrives. Get started writing now and you'll be sure to write from a position of strength.

Related posts:

1. Design the Look of Your Brief to Make It More Readable

2. Reminder: Omit Needless Words

3. How to Easily Counter Your Opponent's Brief-Writing Venom

Avoiding Jury Duty -- Do's and Don'ts

Here's a little humor, if you want to call it that, from Dave Swanner's South Carolina Trial Law Blog: "How Not to Get Out of Jury Duty." Pretty unbelievable.