The Trial Practice Tips Weblog

How to Electronically Annotate Cases You Find Online

At the (new) legal writer, Raymond Ward has a useful post called "Owning your downloaded legal authorities," in which he describes his own personal system for reading and annotating case law after downloading it into a word processing program.

A few of Ward's tips:

• "Use Word or WordPerfect to highlight the parts that are most important."
• "Instead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy."
• "Edit the document header to add all information needed to cite the case. This will later save you the trouble of printing an entire 24-page case when you only need one page with one juicy quotation."

As an old-fashioned lawyer who prints off cases and writes on them with a pen -- and then promptly loses the cases, the notes, and the pen -- I am going to switch to Ward's method. But you've got to read Ward's entire post for all his tips, so be sure to follow my link.

Scott Turow's Five Essentials of Cross-Examination

In his foreword to the book "Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers," Scott Turow gives a quick list of the "essential rules" of cross-examination.

Here's the list, quoting Turow--

• Never ask a question to which you do not know the answer--unless it doesn't matter, or you have nowhere else to go.
• Always listen to a witness's answer before asking your next question.
• Never ask the one question too many that will allow the witness to explain away a damaging answer he's already given.
• Forget Perry Mason. The purpose of cross is not to win the trial at once, so much as lay the foundation for closing argument, or for the testimony of other witnesses.
• Know when you've accomplished enough and sit down.

It's a good, quick summary of the key goals to which all cross-examiners should aspire.

Related posts:

1. "A Book All Trial Lawyers Will Want to Read"

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites"

Telephone Depositions: Yes or No?

At a recent conference, I heard a prominent plaintiffs' lawyer say that he always does depositions over the telephone. Reason: telephone depositions are more time-efficient and less costly.

That's sound logic, I suppose. His advice even extended to expert depositions, but for a different reason. When you confront an expert in a deposition face-to-face, the expert might become comfortable with you and your style, thereby making your cross-examination at trial less effective. This problem with over-familiarity is less likely to occur if the expert gets to know you only by telephone.

I can't say I was convinced. I just don't like telephone depositions. Documents are a problem, you don't know whether the opposing lawyer is signaling to the witness, it makes it seem like you are disengaged from the case.

Am I wrong? Maybe. Telephone deposition remain popular with some lawyers. And in the recognition that there are many ways to skin a cat, I offer the following links--

• Getting the Most Out of Telephonic Depositions, from Depo.com, which lists problems that arise in telephone depositions from a court reporter's perspective;
• FRCP 30, which has a sub-section about telephone depositions and states that for purposes of other rules, the deposition takes place where the witness is located;
• "Hello? Is Everyone There?" -- an article about telephone depositions in New York;
• Last, from this weblog, there's my post, "Agree to Telephone Depositions," with advice for what to do if the tables are turned and the other lawyer is asking you to allow a deposition by telephone.

In the end, it's something you'll have to decide for yourself. Telephone depositions: yes or no?

15 Ways to Ruin a Deposition (Part 3 of 3)

Wrapping up this series of posts (see parts one and two), it's time for the final five ways that a lawyer can ruin a deposition. Since I've personally made all of these mistakes myself, I feel I'm well qualified to distribute this generalized warning to a wider audience --

11. Failing to assert control over the witness and the opposing counsel. Since controlling the witness and opposing counsel are such key parts of a successful deposition, I've done a number of posts over the years on these topics. See these, for example:

• "Depositions: Boxing in the Witness"

• "Depositions: Be Sure to Obtain Impeachment Nuggets"

• "A Podcast on Advanced Deposition Techniques," (discussing how to control a witness)

• "Depositions: How to Stop Coaching"

• "Controlling Abusive Counsel with Video Depositions"

12. Neglecting the documents. Some lawyers bring documents to a deposition, intending to ask the witness about them, but do it only halfway. Instead, try digging in. Try this list of questions: "Depositions: Questions to Ask About Documents."

13. Taking too long. Most depositions go on much longer than is necessary. Learn how to shorten them with the tips described in this post: "Can You Make Your Depositions Shorter?"

14. Failing to learn from your mistakes. If you keep a running journal of your mistakes, it's less likely you'll make the same one twice. See this post: "A Deposition Tip for Young Lawyers: Learn from Your Mistakes."

15. Failing to incorporate your completed deposition into your overall trial plan. After a deposition has ended, do you add the transcript to a giant stack of depositions sitting on your floor? There are a number of other more sensible post-deposition steps you can take. You'll find seven of them here: "Trial-Planning Steps to Take After a Deposition Has Ended."

And that's it: the fifteen ways that you can ruin your a deposition. But that's not going to happen to you, now is it?

From Blonde Justice: Preparing for Trial in Four Steps

Over the past few months, the anonymous blogger Blonde Justice has been writing a four-part series called "How to Prepare for Trial." Although it's aimed at criminal defense lawyers, civil lawyers may also find it interesting.

In the series, you'll find tips on formulating your closing early, developing a theory of the case, preparing to impeach with a prior inconsistent statement, and much more.

Here are the four parts:

How to Prepare for Trial: Step One

How to Prepare for Trial: Step Two

How to Prepare for Trial: Step Three

How to Prepare for Trial: Step Four

Pay attention to the comments too and be sure to add your own if you feel so inclined.

Learn from a Trial Transcript

As I said in an earlier post, "Trial Transcripts Online," you can learn a lot from watching live trials or, failing that, reading trial transcripts.

The only problem is that complete trial transcripts in civil cases are hard to find on the Internet. For that reason, Ronald Miller of Miller & Zois, LLC has uploaded an entire trial transcript from a car-accident case.

Here's how Miller sets it up:

We like this case as a sample trial transcript because all three lawyers involved in the case are good, experienced, car accident lawyers and the issues well developed but simple so the reader gets a full range of what happens in a car accident trial.

You can read the entire transcript or break it down into manageable pieces.

15 Ways to Ruin a Deposition (Part 2 of 3)

Following up on the first part of this series, I'll continue with the second five ways a lawyer can ruin a deposition. Once again, these tips are all based on personal experience, so I know them well--

6. Failing to ask the questions you should ask in every deposition. There are certain questions you should ask in almost every deposition. Here's a helpful list: "What To Ask in Every Deposition."

7. Asking the right questions, but in the wrong way. There are many ways to word a deposition question. Few of them are right. For a few explanation, see "The Anatomy of the Perfect Deposition Question.

8. Failing to listen to the witness's answers. Sometimes a witness answers a question other than the one you asked. Unless you're really listening to the witness, you might not even notice. See this post: "When the Witness Answers a Question You Didn't Ask."

9. Stopping after the witness answers "I don't know." Sometimes when a witness claims not to know an answer to your question, it excludes him as a witness on that point later in the case. Or does it? Not unless you know how to follow up appropriately. Here's a post on that topic: "When a Witness Answers 'I Don't Know.'"

10. Paying too much attention to your opponent. Opposing lawyers: who needs them? Sometimes it's best just to pretend they're not there. See this post: "Ignore your opponent in a deposition." (But also see "Depositions: Don't Ignore Form Objections.")

Next up: The final five ways to ruin a deposition. If you can't wait, take a look at the hundreds of tips in my deposition book, Deposition Checklists and Strategies (3d Rev. 2008 James Publishing).

Carry the Rules With You On Your iPhone

At the old firm many years ago, the partners used to shake their fingers at any associate who asked a question that could be easily answered by reference to the rules.

"Read them this weekend," they'd say. "What do you think the weekends are for?"

They weren't joking. It's only one of the reasons you won't find me at the old firm anymore.

If only the iPhone had existed in 1990! Now you can carry the rules with you everywhere, allowing you to consult or study them whenever you have a spare moment--waiting in a line, sitting at a deposition, drinking beer at a ballgame.

You'll find all the details about two competing versions of law-rules-on-your-iPhone at iPhone J.D.--

• New features in Cliff Maier's legal reference apps

• The Law Pod - federal rules for your iPhone

In sum, two well-written, comprehensive posts from a well-written, comprehensive weblog. Now get to work!