The Illinois Trial Practice Weblog

Deposition Tip: Ask About Your Request for Production of Documents

When the witness might have participated in a search for documents about a case, it makes sense during the deposition to ask the witness questions about your request for production of documents. This suggestion works for two types of witnesses: (a) the witness who is the opposing party in the case, e.g., the plaintiff or defendant and (b) the witness who works for the opposing party in the case, e.g., the marketing supervisor for the defendant ladder manufacturer in a products liability case.

The questioning is simple. Bring your production request to the deposition, mark it, and  go through the various requests with the witness. Ask questions like the following--

• Did the witness assist in the search for documents?
• Who was in charge of the search?
• What was the witness asked to do?
• What did the witness do to insure he located all relevant documents?
• What documents did he locate?
• What did he do with the documents?
• Does the witness know of relevant documents that weren't produced?
• Does he know of areas that should have been searched that weren't?

The goal of this exercise is obvious: to find out whether a proper search was conducted and to insure that nothing was withheld. If you didn't get everything, you can follow up as necessary after the deposition, unless the missing documents are critical to the deposition, in which case the deposition might have to be postponed.

Recommended Weblog: the (new) legal writer

At the (new) legal writer, longtime legal weblogger Raymond Ward always has something interesting to say. An appellate lawyer in New Orleans, Ward describes his weblog as "A collection of resources for lawyers and other writers." Some representative posts:

• "150 resources" (linking to 150 resources for writing better, faster, and more persuasively);
• "How to write good legal stuff" (linking to a free guide to good legal writing);
• "How to write an appellate brief" (linking to one of Ward's own articles);
• "More help with dates" (linking to a tool that helps calculate due dates); and
• "A simple trick for more effective self-editing" (describing a couple of simple tricks).

  It's one for the feed reader.

Sample Interrogatories: Truck-Accident Cases

From the Trial Lawyer Resource Center: "Trucking Interrogatories."

It's a pretty comprehensive set of interrogatories for the first round of written discovery in a plaintiff's case.

Depositions: How Objections Are Resolved for Trial

For lawyers new to depositions, it’s common to wonder what happens to the objections that are made during the proceeding. They are reserved for ruling at a later time, but exactly when and how?

Objections made during depositions are typically ruled upon by the trial court either just before trial or sometime during trial at a time when the jury isn’t present. In many jurisdictions, there is a procedure that ensures the parties will work out as many of the objections as possible before the court gets involved. In federal court, for example, each side typically designates the portions of depositions they want to use in their pre-trial package. The other side then states its objections to these designations. Objections to the form of particular questions (leading, vagueness, compound, etc.) will be stated during the depositions; other evidentiary objections (hearsay, prejudicial, improper opinion, etc.) might not be raised until the time for the pre-trial submissions.

After the parties have tried to narrow the objections as much as possible, the judge gets involved by ruling on the remaining objections, typically on the record while both sides are present to argue their respective positions. In a lengthy trial with many depositions, the court might not take up the objections to a deposition until a time shortly before the deposition will actually be used.

As the court makes its rulings, the lawyers for both sides take careful notes so that properly-edited deposition transcripts or videos can be prepared to present to the jury.

Are You Using Too Much Courtroom Tech?

Is it possible to use too much courtroom tech? Undoubtedly, yes. When your trial technology is slowing down the trial or confusing the jury, you're trying to do too much. Here are some tips to keep in mind:

• The primary purpose of trial technology should be to help the jury learn and remember your key points. It should never confuse the jury or get in the way of understanding.
• Not every point is a key point. You don't need a timeline of unimportant events or an animation of something that doesn't matter.
• You must be comfortable with your trial technology. If you're not comfortable, the jury won't be comfortable. If you're not working the machines yourself, which you're probably not, come up with a simple shorthand method of communicating exactly what you want to your technology staff. And remember to say please.
  
• It's easy to serve up too much information. Anything you project on a screen should complement what you are saying, not compete with it.
• Remember that few jurors can do two things at once. Don't expect them to read a projected document and listen to your questions about it at the same time. If you're going to educate with technology, give the jury a chance to learn.
• When you move onto your next point, what's happening on the screen should reflect that. Don't continue to display an exhibit after you've moved on. Dim the screen immediately.
• In opening and closing, you can move beyond the reading-while-listening problem by using photos, animations, or graphics that illustrate your points, a style popularized by Mark Lanier.
• If it helps the jury to learn, comprehend, or remember, don't be afraid to entertain a little. Even though you're a lawyer, you're not required to be boring.

Finally, jurors are very sensitive to how quickly a trial is moving along. Whenever your trial technology is slowing things down, your trial technology is a mistake. Make sure your technology staff is sensitive to this important point.

Appellate Court: Never Read Your Argument

It's a common tip for making oral arguments in appellate courts: never read your argument.

Not only is it boring for the judges, but you won't be able to respond easily to questions, because it will be harder for you to get back into the flow after you've answered. You'll also find it more difficult to respond to your opponent's arguments since you've set everything in stone beforehand.

If you're someone who can't help but write out your argument as part of your preparation (as I am), here's how to make sure you don't read from your script when it's time for your argument:

• As part of your preparation for your argument, script it out. Allow the script to evolve as your argument evolves.
• Practice your script. Revise if necessary. If it makes you feel better, even chart out where you're going to emphasize particular words, phrases, or pauses.
• A day or two before the argument, disassemble the script by turning it into a bare-bones outline. The idea is to replace entire paragraphs of argument with a few words or phrases that will keep you on track if you need to glance at the outline as you proceed, e.g., "introduction," "standard of review," "facts," and so on.
  
• Begin practicing your argument from the outline. Since you've already practiced your script, you'll find it easy to make your argument without it. Even so, new ways of making the argument might occur to you as you are "thinking on your feet" -- add these to your outline as they occur to you.
• Finally, when it's time to get up to make your argument, take your outline to the podium and leave the script at the table. Since you've been practicing from the outline, you won't miss it a bit.

This is my own personal oral-argument-preparation technique. Although I'd never thought about it closely before, I paid attention to what I was doing last week when I prepared for an oral argument that I did on Tuesday. Result: a complicated argument made in a conversational tone that didn't (apparently) make a single judge doze off. Mission accomplished.

Deposition Tip: Visit the Scene

When a deposition involves an event that occurred at a specific scene, try to visit the scene as part of the your deposition preparation. Examples: the intersection where a car accident occurred; the parking lot where a plaintiff slipped on ice; the towboat where a deckhand threw out his back pulling a ratchet. Not only is a site visit good practice, but you’ll find it much easier to formulate relevant questions when you and the witness both share the same points of reference.

Writing Tip: When You're Stuck, Pretend You're Writing a Letter

When doing legal writing, it's easy to trip yourself up by trying to select words that match an imaginary legal style that you're hearing in your "writer's ear." If you're writing a brief, for example, you might be striving for a sort of serious, elevated tone that you've picked up from reading cases. But nothing you write seems to measure up. What can you do?

Your mistake comes from adopting a tone and style that really has nothing to do with good legal writing. Rather than striving for clarity and understanding in the fewest words possible, you've adopted a way of writing that doesn't come naturally to anyone. You've elevated style over substance even before you've settled on the substance.  And the style you've selected isn't too great either.  The elevated, serious tone you're striving for exists mostly in your mind. You're probably better off leaving it out of your brief.

How do you do this in practice? There's an easy trick for getting yourself in the right state of mind for banging out a first draft quickly. Set down your brief and pretend instead you're writing a letter. "Dear Judge" the letter might begin. Or "Dear Senior Partner." If that's still too intimidating for you, pretend you're writing a letter to the person in the next office. Start your draft again from the beginning. Try to communicate what you are trying to say in a way that comes naturally to you--that is, exactly as you do when you're writing a letter or an email to someone you know.

Once the draft is going--and it will get going--you can revert back to the form the finished piece is supposed to take, free of the mental block that was making the words so difficult to get down in the first place.

For more on writing first drafts, see my article from the Illinois Bar Journal, "First Drafts Made Easy" (originally published 6/03, now reprinted on my law firm's website).