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.

Comments

[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.