The Trial Practice Tips Weblog

Netbook Computers: A Growing Trend

Are netbook computers are better-suited to college students than bigshot lawyers? Maybe so, but they've evolved to the point where they'll do what most lawyers would want them to do.

If you're looking for a small computer for short trips, you should at least give the growing line of netbook (or "subnotebook") computers a look--just make sure your fingers fit the keyboard!

Some netbook choices--

• The EE PC by Asus;
• The Dell Inspiron Mini 9 Laptop;
• The HP Mini 100 Series;
• The Acer Aspire One;
• The Lenovo Ideapad S Series;
• The MSI Wind Netbook.

To learn more, see PC Magazine's "Netbook Buying Guide."

Advice to Litigators: Don't Depose Every Witness

At Atkinson-Baker's Depo.com, lawyer Stewart Weltman has some good advice in his article, "Deciding Who To Depose (part one)"--

[D]eposing everyone connected with the facts is not the answer. Why? Because doing so results in numerous meaningless depositions being taken and allows one to avoid focusing, early on, on what their case is about and what they need to do to get it prepared properly.

Not only is this a wasteful practice that unnecessarily increases litigation costs, in many instances it is a bad litigation strategy. In short, one does not need to and should not depose every possible witness in order to avoid being surprised.

If you shouldn't depose every witness, then which witnesses should you depose? Weltman lays the groundwork for an answer by providing a framework for analyzing each witness in light of your overall trial plan. The second part of Weltman's article will appear in the December issue of Atkinson-Baker's Discovery Update, or see it here at Weltman's Lean and Mean Litigation Blog.

Trial-Planning Steps to Take After a Deposition Has Ended

While you'll often want to forget about a deposition as soon as it's concluded, the better practice is to use your recent gearing-up for the deposition as a springboard for some trial preparation. Consider taking the following steps: 

• In a memo to the file, assess the witness's performance with an eye to how that witness might perform at trial. These notes go into your trial notebook. As explained here, you should start a trial notebook early in the case, not only to make your pre-trial discovery work more efficient but to keep you motivated for trial. For two methods of organizing a trial notebook, see "A Method of Organizing a Trial Notebook" and "Trial Notebooks: An Alternative Method."
• Think about how the witness's testimony can be used to establish the items you need to prove at trial. As noted here, in thinking about proof, remember to consult the jurisdiction-approved jury instructions for the claims at issue in the case.
• Turn your deposition outline into a witness outline for trial. The new outline also goes into your trial notebook.
• Think about whether the deposition raised any disputed evidentiary points or evidentiary theories that you will want to keep from the jury. Update your draft motion in limine as explained in "Tip for Motions in Limine: Keep a Running List and Update It During Depositions."
• Copy the exhibits you used at the deposition and note your impressions as to how they helped or hurt your case. The exhibits and notes go into your trial notebook or some alternative pre-trial storage area for possible trial exhibits.
• If you like to take notes for opening and closing as pre-trial discovery progresses, make any new notes suggested by the deposition and put them in your trial notebook.
• Create a deposition summary as soon as you get the transcript back, perhaps using the method described in this post: "Organize Your Deposition Abstracts by Issue, Not by Page Number." Add citations to the witness's trial outline as appropriate.

Various factors endemic to modern litigation encourage us to think of depositions as one-time, isolated events: the fact that lower-level associates often take depositions but don't try the case; the long period of time from deposition to trial; the fact that most cases settle. But depositions aren't one-time, isolated events. They are an integral part of trial preparation and should be designed as part of an all-encompassing trial plan. While all of the tasks listed above can be performed just before trial, it is usually much more efficient and effective to do them while the deposition is still fresh in your mind.

Production from Non-Parties and Records Depositions: Some Generalities

Here are some broad principles that will apply to many situations involving production from non-parties:

• A non-party person or entity will be compelled to produce documents and appear for a deposition with a subpoena, not a notice;
• For deposition subpoenas in Illinois, see generally SCR 204(a). The procedure can be summarized as follows--

--Obtain a subpoena from the court clerk;
--Prepare the subpoena;
--Prepare a deposition notice;
--Serve the subpoena and the notice on the non-party deponent;
--Serve the notice and a copy of the subpoena on the parties to the case.

• If the entity that has the records objects to producing them, the entity may file some variation of a motion to quash the subpoena; parties to the case may also have objections to the subpoena that will need to be litigated;
• Once you receive the records you are seeking, you might decide you don't need a deposition at all. In Illinois, this possibility is provided for in SCR 204(a)(4). However, you will often want to depose a records custodian to confirm that you've received everything you asked for and to ask questions establishing a foundation for the admission of the records at trial; 
• At the deposition, proceed as follows--

--Name
--Employer
--Job title
--Job duties

--Familiarity with entity's procedures for preparing and keeping records

--Subpoena; mark it and have the witness identify it
--Ask the witness to identify the documents produced pursuant to
     the subpoena; mark the exhibits
--Determine whether the witness brought all the documents requested by the subpoena

--For particular documents, have the witness lay whatever foundation you think you'll need to get the documents admitted at trial, e.g., by establishing the following points--

--Who prepared the document?
--Was the document prepared pursuant to the creator's job duties?
--Were the documents prepared at or near the time of the matters recorded therein?
--Did the person who prepared the documents have personal knowledge of the facts reported therein?
--Were the documents prepared in the regular course of the entity's business?
--Were the documents retained pursuant to the entity's regular business procedures and in the regular course of the entity's business?

• Before or after questioning, seek to obtain a stipulation from opposing counsel as to the admissibility of the documents at trial; you can decide whether this makes the deposition itself unnecessary.

For more about third-party production and deposition procedures in Illinois, see Illinois Pretrial Practice, Duncan-Brice, Flannery, Kelly and Owens (James Publishing). 

Related posts:

1. "Admissibility of Medical Records as Business Records in Illinois."
2. "Police Accident Reports and the Business Records Rule."
3. "Proving Up Medical Bills #1."
4. "Proving Up Medical Bills #2."
5. "Proving Up Medical Bills #3."

Lay Witnesses: Separating Fact from Opinion

Lay witnesses will often give you their opinions at depositions even when you didn't ask for them.

    Examples:

"He wasn't driving safely."

"The roof was in good repair."

"I wasn't at fault."

"I'm going to need more surgery."

"Our policy was perfectly reasonable."

Be alert to opinion testimony from lay witnesses. When you hear an opinion, get a list of all the facts upon which the opinion is based. Exhaust the witness's knowledge. Focus first on facts that can be verified with the witness's own senses ("I stepped on the roof and it was solid"), then move on to other sources upon which the witness is relying ("my doctor told me I'd need more surgery").

Separating fact from opinion is a technique that should be used with any type of witness. The lack of supporting factual testimony can be used later to further bolster a challenge to the opinion testimony by way of a motion or during cross-examination.

Partial source: "10 tips for effective depositions," by Thomas J. Vesper, Trial, August 2000. For more about depositions, see this weblog's "deposition category," as well as my deposition book, Deposition Checklists and Strategies (James Publishing 2006).

The Federal Rules of Civil Procedure: Online Resources

For future reference, here's a list of some online resources concerning the Federal Rules of Civil Procedure:

• The Federal Rules of Civil Procedure, from Cornell University Law School, html and hyperlinked;
• The Federal Rules from the US Courts website; links to all federal rules in pdf format;
• Appellate, Bankruptcy, and Civil Forms from the US Courts website;
• An explanation of the federal rulemaking process from the US Courts website;
• Links to all the local federal court rules throughout the country;
• The Manual for Complex Litigation, Fourth, from the Federal Judicial Center;
• "Managing Discovery of Electronic Information: A Pocket Guide for Judges," by Rothstein, Hedges, and Wiggins (pdf);
• Materials on Electronic Discovery from the Federal Judicial Center.

Related posts:

    1. "Learn about Federal Multidistrict Litigation"
    2. "Still More about Multidistrict Litigation"

The Use of Round Numbers in Trial and Settlement

Which number seems higher: $325,425 or $325,000? There's an interesting analysis of this question from Ron Miller at The Maryland Injury Lawyer Blog: "Exact Numbers in Personal Injury Cases."

Miller's post deals with trials but also touches on settlement. When settling a case, the use of round numbers in a demand or offer -- $450,000 -- sends a completely different signal from a more precise number like $448,335.00.

Read the post to find out why, then keep Miller's points in mind during trial and settlement whether you're working for the plaintiff or the defense.