THE UNNAMED ASSOCIATE SPEAKS #5: Things They Didn't Teach Me About Depositions in Law School
by the Unnamed Associate
This week I don't have any funny new experiences to discuss, or any piercing insights into the practice of law. Instead, I have gripes about law school, and the fact that I never learned anything about dealing with witnesses there.
I know we've all heard and said it a thousand times before, but it bears repeating--law school did not teach me the practical skills that I need for lawyering. I took a trial advocacy class, I even appeared in court as a certified law clerk. But none of that really does much to prepare you for all of the ups and downs of practice.
My biggest concern is evidence, and as a subpart, depositions. My firm's electronic directory is replete with deposition outlines, one for every type of case a young associate here would normally encounter, and a few oddballs, too ("Depo Outline - bar fight--electrocuted--struck by car" caught my eye; wonder how that one went). But the outlines are just that--outlines of things you want to ask about, adjusted to fit the facts of your case, so you remember the elements you need to prove and remember to ask about all of the pertinent areas.
Jury instructions are helpful--we can pull the jury instructions in any cause of action and see just what it is we need to show, and find a witness who can provide testimony about each element. But let's take agency, for example, since that's the depo I took this morning. One element is that the principal has the right to direct and control the actions taken by his agent on his behalf. So you show up to the depo with your list of elements, and you say, "Witness, were your actions directed and controlled by your principal?" No. It doesn't work that way. You've got to ask a series of questions to elicit factual testimony that shows the answer to that question is "yes" or "no" or whatever you're looking for.
Another thing--laying a foundation. It's one thing in trial advocacy to question a witness that everyone else has already questioned, and whose "answer" script you've read & know how they are supposed to answer, and lay a proper foundation the way that the three people in front of you did it. It's quite another story to do so live, with an uncooperative witness, and an older more experienced attorney who is jumping up and down on the table objecting because he thinks you look like fresh, easily-intimidated meat. Wouldn't it be nice to have a class, a small seminar, focused solely on witness testimony? Experts, parties, cross and direct--it would be very valuable. Maybe it's just my school that doesn't offer it, but it seems like trial practice is so complex that one, single-semester class is not going to come close to covering it for us.
I think it is easy to get intimidated as a new lawyer, get overwhelmed, get scared, and freeze up. There are a couple of tips I've been given which I would like to share. One, this is an important job, but it isn't the end of your life if you mess up. Generally, a case is not won or lost on the basis of a single deposition. Two, preparation is key--the key to feeling confident that you know what to expect, what you're looking for, or at least that you put some thought into the matter. Confidence goes a long way, so read the file, look at the records, look at the pleadings--remember what you're trying to prove or disprove. And if the witness responded to interrogatories, take them with you and read over them ahead of time, so if the witness contradicts himself, you can bring that out. Three, remember that even if the other attorney objects, you can ask the question anyway. Just say, "Subject to that objection, what's your answer?" Once you get the answer you can try to figure out a non-objectionable way to ask it. And if worst comes to worst and you can't, hell, how many attorneys actually go see the judge over deposition objections? It rarely happens (so I've been told).
I also like our host Evan's suggestion some time back about videotaping depos--it doesn't help with the immediate situation, but you'll be prepared next time that lawyer tries to bully you and act like a monkey. If you're defending a depo, bring a list of objections with you. No shame in it; if something doesn't feel right, object, and take a second to figure out why. You probably won't need it--just having put together the list will have those objections fresh in your mind, and the confidence of knowing you can refer to your list will keep you from panicking, and probably help you not have to use it.
Finally, don't get caught up in formalities. Spend a few minutes thinking about what it is you want from this witness. Why did you go to the expense of calling this deposition (or, why did your partner call it)? Think about the witness from the prospective of a juror--if I were sitting in the jury box, what would I want to know about this person? And try not to make logical leaps--just ask one thing at a time, detail by detail, until you have what you want. If you get flustered or you need time to make sure you've covered everything, take a short break. No decent lawyer will object to you reviewing your notes for a few minutes before the depo ends.
Now, I do not claim to be a pro litigator, or the Midwestern Queen of the Depo. But these are all little tips and tricks that I try to keep in mind when I find myself faced with a deposition and I'm not quite sure what to do with it. I think they've helped me, at least so that I don't go into every situation feeling like I know nothing, and that I'm not qualified to do this job, which is how I started out my depo career.
About the Author The Unnamed Associate is the pseudonym of a first-year litigation associate who works at a U.S. law firm. For more information, see her collected posts or Evan Schaeffer's introduction.