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March 23, 2006

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The Law Fairy

I couldn't agree more, UA. I went to a "top" law school and not only did my trial ad class suck in terms of scheduling (noon with the occasional 8 AM start on Fridays. Yeah.), but it didn't teach me much that was useful. My firm gave us somewhat more helpful trial prep training -- but really the best training is on the job. The idea that law schools teach you anything useful to the practice of law, rather than for becoming an academic (besides, maybe, civ pro and evidence) is a joke.

mythago

Good points, UA. I'd add that part of preparation is to know what the heck the subject matter of the deposition is about. Most of the depositions I attend involve deponents who were blue-collar workers, and it becomes apparent really fast when a new attorney doesn't know what insulating mud is, or how you change a drum brake. (I think I've already posted about the young'un who asked a steamfitter client if a steam pipe was "a hot line".)

Solo Practitioner

Let me put in a plug for law schools' legal clinics. I spent a semester working in my school's clinic and learned an enormous amount about how to try a case and deal with witnesses. I suspect most law schools offer clinical opportunities.

Alan

And let me put in a plug for the Student Trial Lawyers Association (STLA). I participated in STLA for 2 of my 3 years at law school - preparing and "litigating" at least 3-4 cases, on both sides (prosecution/plaintiff and defense). STLA and the practice, training and coaching I received there really helped me improve my trial law skills and better understand how things work in a trial.

One of my favorite trial competitions had the witnesses provided by the competition - i.e. we couldn't use our own prepared witnesses from our own school. I got mine on the stand and was going through my questions, mostly getting the answers I was looking for.. until he stated something along the lines of "well, I was on drugs at the time" -- a subject I'd gotten excluded in the Motions in Limine. Needless to say, I was pretty flummoxed. I think I might have asked 1 or 2 more questions then sat down. There was nothing more I could do. Those STLA trials were lots of fun!

Jackleg

UA, your tips are solid. I'm no Matlock, but I think another really important tip is to be flexible. Early in my career, I missed opportunities by slavishly adhering to my depo outline, instead of asking the witness what exactly he meant when he said he "spent some time in Leavenworth." Following the deponent "down the rabbit hole" of his or her line of thought can lead to some great discoveries. Even if irrelevant, at least you'll hear something interesting to tell your friends and co-workers. However, be careful when doing so; you can totally lose your place in your questioning, even with an outline. So, keep one foot on the solid ground of your objective while you dip your other foot in the witness' stream of consciousness.

Finally, here (in Georgia) the only proper objections during a deposition (other than privileged information) are to: the form of the question and responsiveness of the answer. Thus, don't let opposing counsel coach his/her witness with speaking objections (i.e. "Ojbection, speculation! How can Mr. X possibly know anything about that if he wasn't there."). Let him/her do it a couple of times, and then curtly inform him/her that speaking objections are not allowed, and ask whether he/she is objecting to the form of the question or responsiveness of the answer. It works pretty well.

U.A.

I think mythago has a great point. My very first CLE was about how to depose an expert doctor, and the very first thing we talked about was to know the language of the body parts in question, and understand about the condition, how it is caused, etc. I think that's a good idea and there are some very useful databases online, complete with drawings for reference, that will tell you all about causes and symptoms of different conditions. I think doctors tend to be less intimidating if you can at least act like you know what they're saying.

mythago

Although I find acting like you want the Smart Doctor to explain it all to you is a great way to get them to let down their guard. Sadly, this trick only works once on any given doctor...

christopher king

Just pay attention. Despite what some say about me (i.e. the judges against whom I filed ethical complaints) I was quite a good lawyer, and tripped people up all the time. Get them kind of conversational and if there's a chance to get them pissed off, they will say something wrong or stupid. Every damn time; set your watch to it.

Check out this online testimony, (particularly the last paragraph) I just posted today, versus an email I had stashed as I juxtapose the two of them on one page:

http://christopher-king.blogspot.com/2006/03/nashua-naacp-president-gloria-timmons.html

Now Gloria's got some serious 'splainin' to do, you bet.

Supremacy Claus

Sweets: Be sure to videotape both the witness and the lawyer.

Here. Proper deposin':

http://www.youtube.com/watch?v=e12sqYYLJxA

Newly licensed atty working to go from clueless to competent

THANK YOU. THANK YOU THANK YOU. Law school didnt teach me lawyering. You are a great help! Thanks again.

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