How do you give research assignments to junior lawyers? Probably in a
way that leaves the junior lawyer wondering exactly what he's supposed
to be doing. That was my experience anyway when I was a junior lawyer
who used to get a lot of assignments. After awhile, I learned to stick
around in the senior lawyer's office until I'd figured out exactly what
my assignment was. Remembering to ask questions before I got started was
a good lesson to learn.
At Litigation and Trial, Max Kennerly lists his "ten rules for depositions," beginning with "use plain, simple language" and ending with (almost) "don’t get into a stupid bickering match with the witness." A useful post.
Your preparation for depositions will generally be much easier if you think about the ways the testimony will be used at trial. This tip applies to most pretrial discovery: it's almost never an end in itself, but something that will be used later in front of a jury. It's no accident that the ins-and-outs of pretrial discovery often make more sense after a lawyer has witnessed some actual trials. When trials are scarce, even reading trial transcripts helps.
The looking-ahead-to-trial tip can be especially useful for deposing your opponent's experts. If you often rely on outlines prepared by other lawyers, this method will also help you understand why it's important to ask the questions lawyers typically ask when deposing experts.
An article titled "Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion" written in the Journal of Empirical Legal Studies provides the answer as to how personal injury attorneys do as a class in estimating verdicts: not good.
The average error for lawyers in predicting the value accurate was 0.387. For a verdict of $100,000, this is equivalent to an estimate of $244,000 or $41,000. That's a big range. With those estimation skills, it is a wonder more cases don't go to trial.
As Miller notes, "[I]t is important to underscore how unbelievably important this skill set is for trial lawyers." Read the full post for ideas about improving your own "estimation skills."
Part of the problem is that we’ve all been trained to do things a certain way. Someone writes a letter, you write back. Someone threatens, you threaten back. Someone raises their voice, you speak louder. Why are you doing this? What are you accomplishing?
For solutions to the problem, read the whole post.
In this series of posts, I'll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog's deposition category, I thought I'd try to reorganize some of them in a new way.
I'll begin with the first five ways a lawyer can ruin a deposition. I've been guilty of all of them at one time or another--