The Trial Practice Tips Blog

You're preparing for a deposition. You have a stack of documents you may or may not use. Have you read them? If you're like many lawyers, you've merely done a cursory once-over. You're saving the real reading for . . . well, another time.

In "Better Discovery Through Document Management," lawyer Lisa Wood describes a process for reading your stack of possible exhibits before a deposition--

You should immediately note a number of things and consider basic questions such as the following:    

• Who prepared the document?    
• Who received carbon copies, when was the document dated, when was it faxed or delivered by some other means?
• Who apparently typed the document?
• Is there any handwriting on the document?
• Do you have a complete copy of the document?
• Does the document refer to any other documents, whether as enclosures, attachments, or other forms?
• What prompted the preparation of the document?
• Where does the document fit into the chronology of key events?
• What is important about the document and its contents?
• Is the document consistent with your understanding of the facts?

That's a pretty comprehensive list, and there's much more in Wood's article. Read it to see if you're taking the right approach to documents at depositions.

In the May "Legal Spectator" column in the Washington Lawyer magazine, Jacob Stein writes about the golden age of court reporting, when it was the court reporter, not the lawyers, who were in charge of depositions. (Link from f/k/a.) Titled "Lucius Friedli," Stein's column gives a portrait of a particular court reporter --

Mr. Friedli prospered at a time when there were no computers and no stenotype keyboards. He took it all down in Pitman shorthand. . .

Mr. Friedli announces, “Ready.” Lawyers deferred to him. Mr. Friedli decided when the deposition commenced and when there would be a recess.

If the lawyers interrupted each other, he said, “One of you shut up. I cannot write with both hands.” If the bickering continued despite the warning, Mr. Friedli threw down his pen. This brought temporary civility.

The lawyers respected Mr. Friedli’s judgment concerning witness credibility. If Mr. Friedli thought a witness was lying, he gave a skeptical look at the witness. Lawyers took note.

Stein also writes that Mr. Friedli "had sympathy for young lawyers" and "gave them advice."

Reading about Mr. Friedli got me wondering whether the golden age of court reporting has really passed. As it happens, I know a court reporter just like the one Stein describes. This particular court reporter has been around throughout my career, since the time in 1991 that he gave me advice during breaks at my first major deposition as a new lawyer. (I was successfully pinning the witness down to a single story, but wasn't closing off all the exits.)

Like Mr. Friedli, this court reporter also stops reporting when the lawyers start arguing. Like Mr. Friedli, he telegraphs what he thinks about a witness on his face, so it's easy to get a sense for how a deposition is going simply by looking at his expression. (Once, he didn't return for the second day of my deposition of a particularly mean-spirited corporate representative, saying that the witness was making his blood pressure spike up too much. He sent a replacement.)

Just as this court reporter I'm writing about has followed my career, I've followed his, since the days when his small court reporting company grew larger, then larger still, then merged with a competitor firm to form one of the largest court reporting services in the area. I don't see him as often as I used to, but when he shows up for one of my depositions, it's always a nice surprise and we spend some time catching up.

While Stein is right that the court reporting tools have changed--computers rather than pens and paper--I'm not sure whether court reporters are any different than in years past. If you haven't thought to do it, try getting to know the court reporters who attend your depositions. Not only will it make the practice of law seem more civilized than it really is, but you'll also make some new friends who might be there throughout your career.