The Illinois Trial Practice Weblog

Depositions: The "Show Him the Document" Objection

The show-him-the-document objection goes something like this:

Objection! You're asking the witness a question about a document you're holding in your hand. If you're going to ask questions about it, show it to the witness.

Is it a valid objection? No. You are entitled to ask what the witness knows about events or occurrences or anything at all without showing him documents first. Later you might decide to show the witness the document--to impeach the witness's recollection, for example, or to refresh the witness's memory if he has no recollection--but you don't have to show him the document first.

Questions about documents might be objectionable for other reasons, in which case other objections might apply. A question "did you sign a memorandum dated 12/11/05," put to a witness while you are looking at  the memorandum, might lack foundation and be vague. But it's not objectionable because you're holding the document in your hand and the witness can't see it.

The show-him-the-document objection? Ignore it and have the witness answer.

Legal Writing: Three Tips from Three Sources

Today's post contains three quick tips for legal writers. By following the links, you'll also find lots of additional advice:

• When addressing a court, don't adopt the technical business jargon of the parties without explaining it. (Tip from an opinion by Judge Richard Posner, as detailed in a post at the Pennsylvania Litigation Blog)
• Don't commit the double-identification sin ("the sin"), in which a writer inserts a parenthetical clarifying that which does not need to be clarified ("the unnecessary clarification") (Tip from "Writing the Persuasive Brief," by Judge William Eich in the Wisconsin Lawyer)
• Don't commit the used-car-salesman error, in which you try too hard to sell your position to a court. (Tip from "Persuasive Strategies for Appellate Brief-Writing," from Barger on Legal Writing).

Thanks to Celia C. Elwell, a paralegal in Oklahoma City, for these links. For much more on legal writing (one of my favorite topics), see the legal writing category on this weblog.

Tip for New Lawyers: Learn by Example

As I've written before, one of the best ways to learn deposition techniques is to pay attention to lawyers who are more experienced that you -- most particularly, your opponents.

After all, it's one thing to read how to do a thing, or have it explained to you, but it's quite another to learn from the example of someone who actually knows how to do it better than you do.

This trick of learning by example applies not only to depositions, but to any area of legal practice. Here are some other skills a litigation lawyer can learn from a more-experienced opponent--

• How to strategize during discovery;
• How to write effective interrogatories and requests for admissions;
• How to object to improper discovery;
• How to write letters about discovery disputes;
• How to write an effective brief;
• How to argue a motion in front of the court;
• How to move a case forward by taking an effective deposition;
• How to keep an opponent on the offensive;
• How to make a compelling case for your client at the beginning of a mediation;
• How to present direct testimony during trial;
• How to cross-examine during trial;
• How to persuade a jury at trial during voir dire, opening, and closing.

To take advantage of this learning-from-your-opponents idea, all you have to do is make a file, which will get larger and larger over the months and years, and then resolve to pay attention during your normal day to what other lawyers are doing and how they are doing it.

Use your file to collect all the best form-worthy materials you come across in your practice, as well as all the notes you take about new tricks and techniques you've learned from your opponents.

Finally, remember to be humble enough to acknowledge that it's possible to learn something from an opponent. For many lawyers, this is probably the largest impediment to an ability to learn by example.

Those Preliminary Deposition Questions: Don't Make a Speech

Because they’re impatient to get it out of the way, some lawyers turn the standard preliminary deposition questions into a speech:

Hi, I’m Bill Smith. I represent the plaintiff and I’m here to ask you some questions today. As you probably know, you’re under oath today and sworn to tell the truth. I’m here today to try to find out some basic information. If you don’t understand one of my questions, please let me know. And let me know if you want to take a break. Okay?

What’s wrong with this approach? One of the purposes of the preliminary questions is to make a record that the deponent is fully aware of the way the deposition works. This record might be important at trial if you need to use the deposition to impeach the witness. An example:

Q. You remember when I took your deposition on January 22, 2008?

Q. You remember you were sworn to tell the truth?

Q. And I told you that even though we were in an informal setting around a conference table, your testimony had the same force and effect as if we were in trial before a judge and jury?

Q. I asked you if you were prepared to answer my questions truthfully?

Q. And you answered “yes”?

. . .

Though you won’t often conduct this sort of cross-examination, you won't even have the option if you start the deposition with a muddy record. Rather than make a speech at the start of a deposition, ask questions or make statements followed by "Okay?" or "Do you understand?" This will give you short "impeachment nuggets" that you can use later, if necessary.

For more on preliminary deposition questions, see the following posts:

1.  "Those Preliminary Deposition Questions: What's Their Purpose?"
2. "How to Cross-Examine at Trial with Inconsistent Statements"
3. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"

The Paperless Law Office: How-To

How are you going to do way with paper at your office, assuming you want to? In his post "Taking a Firm Completely Electronic," Dennis Kennedy tells you how to do it in three simple steps--

• Get Adobe Acrobat 8 Professional;
• Buy scanners;
• Install a search program.

For the complete details, read Kennedy's posts. Or see these related paperless-office posts from the Illinois Trial Practice Weblog:

1. "Do Away with Paper Entirely? Not Me"    
2. "Notes on a Paperless Office by Ernest Svenson"    
3. "One More About the Paperless Law Office"
4. "The Paperless Law Office: A Report from the Trenches"

Expert Depositions: Pay Attention to the Dates on the Expert's CV

When an expert's CV attempts to summarize a long career, you can often get some good fodder for cross-examination by paying attention to the dates. Did the expert's real-life work experience with the subject of his testimony end years before? Did it just begin? What was the date of the expert's most recent publication? The date of the most recent publication on the topic about which he's testifying?

Questions like these raise interesting topics for cross-examination. At a recent trial, I saw an expert cross-examined along these lines--

You have a section in your CV titled Honors and Awards?
The last honor or award that's listed is dated 1978?
You haven't received any honors or awards since 1978?
That's when you were teaching?
But you haven't done any teaching in three decades?

For more about cross-examining experts, see also these related posts: "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial" and "Cross-Examining Experts During Depositions: A Tip."

For those who have my book Deposition Checklists and Strategies, see also Chapter I, VII, Expert Depositions, and §1:216 Five Ways to Hit Homeruns with an Expert's CV.

Depositions: Questions to Ask about Documents

Here's a checklist of some questions you can ask about documents at depositions, while ignoring the objection from the other side that the document "speaks for itself." It doesn't, and the objection can be ignored--

• Who wrote the document;
• Who received the document;
• Whether the witness received the document;
• Whether the witness maintained the document in printed or electronic format, and where, and why;
• Where the original of the document is maintained;
• The identity of the author and the recipients;
• The identify of others mentioned in the document;
• If the witness wrote the document, what he meant by certain passages;
• If the witness didn't write the document but did receive it, whether he took any action as a result of reading the document;
• Whether the facts contained in the document are accurate, and why or why not;
• Whether the events described in the document are described correctly, and why or why not;
• Whether the witness agrees with the way particular passages are phrased, and why or why not;
• Whether the document refreshes the witness's recollection on points about which the witness claimed to have no memory;
• Whether the witness reviewed the document in preparation for the deposition;
• Questions meant to authenticate the document for trial;
• Questions meant to establish foundational elements for use of the document at trial.

Note that these questions can be mixed or matched, used or not used, as the situation merits and in any order.

See also these related posts:

• "Authenticating Exhibits Using Requests for Admissions: Two Methods"
• "Using Emails in Support of Summary Judgment or at Trial"
• "How to Introduce Exhibits at Trial"

E-Discovery Myths: How Many Typed Pages Per Gigabyte?

If you spend any time doing electronic discovery, chances are you'll soon be arguing about "page equivalency" -- that is, how many pages of data can one assume is in a gigabyte of electronic storage. The matter comes up frequently when parties argue about the probable cost of e-discovery. Here's how e-discovery commentator Craig Ball describes such an argument:

Your Honor, Megacorp's employees each have 80 gigabyte laptops. That means we will have to review 40 million pages per machine. Converting those pages to TIF images will cost Megacorp $4 million per laptop.

The quote is from Ball's article, "Expert Explodes Page Equivalency Myth," from Law.com. According to Ball, page-equivalency claims are certain to be wrong unless one considers the type of data that is being stored: e-mails, spreadsheets, word-processing documents, photos, and so on. Here's Ball again:

Now, with more e-discovery miles in the rear-view mirror, it's clear we've got to look at individual file types and quantities to gauge page equivalency, and there is no reliable rule of thumb geared to how many files of each type a typical user stores. It varies by industry, by user and even by the life span of the media and the evolution of particular applications. A reliable page equivalency must be expressed with reference to both the quantity and form of the data, e.g., "a gigabyte of single page TIF images of 8-1/2-inch x 11- inch documents scanned at 300 dots per inch equals approximately 18,000 pages."

If you're going to argue with co-counsel or a court about e-discovery--which will happen in situations when there's no expert there to rely upon--you're going to have to know the jargon. Add Ball's article to your growing file of research materials . . . which, hopefully, is growing.

Med Mal: What Determines the Size of Settlements?

In its latest newsletter, the Cambridge Economics Group is featuring an article by its Chief Economist, David M. Frankel, titled, "What Determines Malpractice Payments?" (pdf). This free article is the first part of a series and examines how certain patient-related factors like age and gender influence the size of malpractice settlements and judgments. Later articles will address "case venue, allegations, practitioner age" and other factors.

Frankel's analysis is based on information from the National Practitioners Data Bank, which includes (by law) data from all malpractice settlements and judgments.

For malpractice junkies, the article is worth a look.