Two Reasons Why You Should Take a Deposition

Enrico Fermi, Nobel Prize winner for Physics in 1938, once said, “There are two possible outcomes: if the result confirms the hypothesis, then you’ve made a discovery. If the result is contrary to the hypothesis, then you’ve made a discovery.”

Much like a scientist who tests a hypothesis, you need to test the theory of your case. If you represent a plaintiff and your case becomes stronger, such a finding will obviously affect the lawsuit’s value. If you uncover facts that undercut your theory, the value of the lawsuit will be less, but you may find a way to minimize the damage before trial. Generally, a deposition is the best way to determine your case’s strengths and weaknesses, but there are occasions when it is not.

There are seven reasons to take a deposition. In addition to the one mentioned above, let’s look at two of the most important ones.

Most lawyers see depositions as fact-finding exercises. While this is true, they have a larger purpose. Great trial lawyers use depositions to determine how credible a witness will be at trial. It is a unique situation where you can look the witness in the eye and assess his demeanor. This determination is critical to deciding the settlement value of your case and whether you should go to trial.

Unfortunately, there may be times when you feel pressure from a client to save money by not taking a deposition or by having an associate with a lower billing rate take the deposition. But you are responsible for the ultimate outcome of the case and cannot delegate this task when there is a key witness. Only by seeing the witness in person and hearing his story can you accurately perceive his credibility. While a videotaped deposition by an associate would alleviate this problem to some extent, a face-to-face meeting is the only way to determine how the witness will react to your questions at trial.

Another important reason to take a deposition is to build a record of inconsistent statements from the witness that can later be used to impeach him at trial. For example, in a car wreck case, a plaintiff may testify in his deposition that after the accident the defendant was concerned about his injuries and was helpful in summoning an ambulance. However, at trial, the plaintiff may try to embellish his story and testify that the defendant was not helpful but rather belligerent and angry. If you had not taken the deposition, you would lack the one tool to discredit the plaintiff’s trial testimony. Having taken the deposition, you will be able at trial to impeach the witness in the following way.

Example: Deposition provides inconsistent statement
Q. You testified on direct that the defendant was belligerent and angry at the scene. The truth is that my client was concerned about your injuries and helped in calling for an ambulance.
A. No.
Q. Do you remember giving your deposition in this case.
A. Yes.
Q. You were under oath?
A. Yes.
Q. I would like you to read along silently as I read from page 17 line 2. Isn’t it a fact, you were asked the following question? Was the defendant concerned . . . .

Good luck at your next deposition. More tips can be found in my book, Winning at Deposition or on my youtube video.

 

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Trial Advocacy Techniques (Part II)

In Part II of this Trial Advocacy Techniques series, I want to share some tips on opening statement that I learned from writing my latest book, Turning Points at Trial. In Part I, we learned the importance of making a boring case interesting in order to persuade the factfinder. Here are a some tips from Windle Turley on opening statement that will immediately improve your techniques and results in your next trial.

Windle Turley's Preparation Strategies for Opening Statement

Early in his career, Turley would prepare his opening statement on the morning of the trial. After losing five cases in a row, he changed his philosophy forever.

Now, a few months before the start of a case, Turley creates a trial notebook that includes a section allowing for constant preparation of his opening statement. As he thinks of an idea, he jots it down in this section. At least two weeks before the trial, he begins earnestly working on his ultimate opening statement.

Then, several days before the trial, he writes it out word for word. Although he won’t read it verbatim to the jury, he will paint a picture with the words he has written. “You have to make sure every sentence and every word counts,” explains Turley. He works incessantly on “key phrases” to ensure delivering them correctly.

To avoid presenting a memorized speech, Turley goes to the podium with an outline containing just a few key parts written out word for word. When delivering the opening statement, he will only occasionally look at his outline.

Turley makes sure he keeps eye contact with the jurors and avoids pacing. He is also a big believer in using visual aids during his opening statement and throughout the trial.

The Four Trial Advocacy Techniques of a Persuasive Opening Statement

Turley instructs that there are four ingredients every opening must have to be successful.

First, he says, “you have a great opportunity to draw attention to your case and, ultimately, if the jury doesn’t think your case is extraordinarily important to somebody or to society, they’re probably not going to do much for you.”

Second, “here’s your opportunity to tell the jury your entire story and for you to be a witness for your entire case.”

Third, it “gives you the opportunity to defuse your opponent’s case” or “to pop the defendant’s bubble.” You do that by telling the jury, “In a moment, defense counsel is going to tell you this, and this is why that is not true.” As Turley says, “You knock him down on every point he or she is going to make.”

Fourth, the opening statement is a chance for you to bond with the jury. Turley claims this comes through “wordsmithing. You talk about the things they talk about around their breakfast table.” For example, you can talk about “our community.” This lets them know they are going to be in a position to be a decision maker. He explains, "If you pick the right phrases, you can embrace the ordinary juror. You become a common man with them."

Many lawyers argue their case in voir dire, but Turley thinks this is a big mistake. First, he says, doing so wastes precious time needed to get information from jurors in order to strike them. Second, lawyers argue “half-ass” in voir dire and then give another “half-ass” argument during opening statements. Instead, Turley advises arguing a case in “one glorious sweep” when opening.

Apply Turley's tips to your next trial and you will see a vast improvement in your trial advocacy techniques and results. If you want to see my latest youtube video on opening statement tips, click here.

 


Trial Advocacy Techniques (Part I)

This post explores some of the most important trial advocacy techniques of great trial lawyers that I learned from writing my latest book, Turning Points at Trial. Given that most lawyers do not have very exciting cases, I asked the great lawyers in my book whether it was worth the effort to make a boring case interesting. The answer was a resounding yes. The reason is that trial lawyers are in the persuasion business. Great trial lawyers will make any case their most important one because they know that jurors vote for the side that they care about the most. There is another secret which I will discuss in a moment.

Mark Lanier's Tip

In my previous post, we learned from Mark Lanier how he won a national record setting verdict in a case with very compelling facts. He is obviously a master of trial advocacy techniques in the courtroom. But I asked Lanier what he would do if he had a very boring case such as a car wreck case. Here is the secret he shared with me. He advised that in any trial, you need to tell the jurors that the verdict is their chance to make a statement. It is your job to tell them what the statement is and make it personal for them. For example, in a fender-bender case, you might say:

"Ladies and gentlemen, we should not have to do this when someone is at fault in a car wreck. We’re not supposed to have to go through all of this. We’re not supposed to have to file a lawsuit. We’re not supposed to have to hire lawyers. This ought to be dealt with forthwith, straight away by responsible people. But here we are, and this is your chance to say, 'Don’t do this. If you’re responsible for someone’s wreck, don’t do this.’"

Windle Turley's Tip

Another trial advocacy secret of great trial lawyers is that when you take the time to make a boring case interesting, you are developing the skills that you will need to use to persuade a jury when a bigger case comes along. If you wait until you have a really important case to become a great lawyer, it will be too late.

I asked Windle Turley the same question I asked Mark Lanier. Turley won the largest verdict ever against the catholic church for sexual abuse by one of its priests. In explaining how a lawyer with a run-of-the-mill case could capture the jury’s attention, Turley admits it is difficult but says it means that the lawyer just has to work harder. He said that the key is to communicate to the jury that such a case is really a “community issue.” This is not just a fight between two drivers. As Turley says, “This is something that can involve every single one of us this afternoon. We should have the right to go home safely without someone slamming into the rear of our vehicle. You just have to broaden the issue and get it away from the defendant and the plaintiff.”

Apply these trial advocacy techniques now to your practice and make all of your cases interesting. Your efforts will not only create payoffs now but later when you have a big case. If you want to see my latest youtube video on trial advocacy techniques, click here.

 


"Secrets of Great Trial Lawyers" (Part 1)

In my latest trial advocacy book, Turning Points at Trial, I interviewed thirteen of the greatest lawyers in the country such as Robert S. Bennett, Alan Dershowitz, Mark Lanier, Tom Girardi, and Bryan Stevenson to learn the secrets of their success.

This is the first blog post in a series that explores some of the most important lessons I learned. The first one I want to share with you is how Mark Lanier develops a theme for his opening statement. If you are new lawyer, you might not know that Lanier may very well be the greatest trial lawyer of this century. He recently won a $9 billion verdict for a single plaintiff to add to his lengthy list or accolades.

Lanier shared with me two secrets. First, he does not wait until the night before trial to develop a theme for his opening statement as most lawyers mistakenly do. He begins working on it months before trial because he believes it is such an important tool to persuade the jury. Second, he finds a theme that will resonate with the jury and motivate them.

In his first record setting verdict that brought him into the national spotlight, he was trying a case against Merck for selling Vioxx, a pain medication, which caused Bob Ernst to have a heart attack. The venue for the trial was Angleton, Texas, a small town near Houston. He needed a theme that would empower the jury.

Instead of confusing the jury with scientific studies and using complicated legal words, he delivered an opening statement using plain English that cut right to the chase with a powerful theme. How did he get the jurors' attention?

He told the jury that being in the jury box was like being on the television show CSI, except that this show was CSI Angleton (the town where the trial was being held). He told them that they were detectives. He argued that neither the judge, the plaintiff's lawyer, nor the legislators could bring Merck to justice, only the jury. Like CSI, Lanier told the jury that he would bring them the clues so that they could use to solve the mystery of whether Vioxx was a dangerous drug and hold Merck accountable. Lanier even told the jury that "this was your calling."

Fortune magazine reported that Lanier took on Merck with "merciless, spellbinding savagery." Lanier would win a $253.5 million verdict. Long before your next trial begins, think of a TV show or movie like Lanier did that the jury can relate to and empower the jurors to make a difference.

For the three most important cases you have, begin today thinking of a theme that will grab the jurors attention. What is the most important idea in your case that the jurors can relate to? Use that idea to create a bond with the jury. For Lanier, he wanted the jurors to join him as detectives in a search for justice. With some planning, you will be able to find a theme that is just as exciting. Good luck!

 


Five Reasons Not to Take a Deposition

Most lawyers decide to take depositions out of habit without ever thinking through the consequences of whether they should even be taken in the first place.

There are some serious disadvantages to taking a deposition. First, it can be expensive. Besides the cost of the court reporter, the deposition takes a lot of your time to prepare and takes time away from other important things you could be doing. Is this deposition really worth your time? Moreover, is it really worth double your time? That is, there is a certain tit for tat between attorneys. If you decide to take a lot of depositions, be prepared for opposing counsel to return the favor and take just as many. It is fair to assume that for every deposition you take, you will have to spend the same amount of time defending one.

In addition, by taking depositions, you force the other side to spend time on your case and, therefore, to become better prepared for trial. This is a very significant drawback to taking a deposition. Through the witness’ answers, you will inevitably educate the other side about details it might not have taken the time to learn except for the deposition. But for the important depositions, you need the information even if the downside is that the witness and opposing counsel get educated. A good guide, then, is to take only important depositions and not waste your time taking the less important ones.

Another downside to depositions is that you will necessarily reveal your trial strategy through your questions. Even if you are subtle about your theory of the case, the opposing attorney will at least get glimpses through the topics you cover in the deposition and by sensing from your mannerisms which topics seem important.

Moreover, while you are able to assess the witness’ credibility, the witness is also assessing your demeanor and strategy. Consequently, the witness will be less surprised at trial, since it won’t be the first time he has been confronted by you.

These facts aside, none of the disadvantages should carry the day by themselves except for the most important one: by taking a deposition, you remind the other side to take the depositions of your witnesses. You may inadvertently expose the weaknesses in your witnesses that opposing counsel may not have otherwise discovered if he had not taken their depositions.

DEPOSITION DISADVANTAGES

  1. Expensive (money and time).
  2. Reminds opposing counsel to take depositions of your witnesses.
  3. Forces opposing counsel to come to trial much better prepared.
  4. Your questions reveal your trial strategy.
  5. The witness can assess your demeanor and strategy prior to trial.

Before you decide to take your next deposition, go through this checklist and you will be much better prepared to make the right decision.


The Conventional Wisdom is Wrong about Opening Statements

An opening statement is a speech by a lawyer given at the start of the trial that explains to the jury what the evidence will prove. Too often, lawyers throw this presentation together at the last minute and hope that by the time closing arguments arrive, they will have a more organized speech. The unprepared lawyer is comforted by the conventional wisdom that states that you should save your best ideas for closing argument anyway. This “wisdom” is based on the belief that jurors will followed the court’s instruction given at the trial’s outset to keep an open mind until all the evidence is presented. If no one is jumping to conclusions, the lawyer believes he can wait until closing argument to comfortably summarize for the jury what has occurred at trial.

The reality is that nothing could be further from the truth. A widely cited study found that 80 percent of jurors come to a decision about the case immediately during or immediately after opening statements. Human nature confirms this fact. We make quick judgments about who is right or wrong in our every day life. It is impossible to turn this decision making process off just because a judge tells us to.

Law schools also teach that you need to pepper your opening statement with the phrase, “The evidence will show” in order to comply with the assumed prohibition of making arguments in opening statements. The flawed logic is that by repeating the phrase you will only lay out the facts and not venture into the prohibited waters of arguing what the facts will prove. Again, this advice is completely wrong.

Great lawyers use the opening statement to powerfully argue their case to the jury. To see examples of such powerful openings, check out my latest book, Turning Points at Trial: Great Lawyers Share Secrets, Strategies and Skills, which can be found at Amazon.com.

 


The Two Most Important Reasons to Take a Deposition

Enrico Fermi, Nobel Prize winner for Physics in 1938, once said, “There are two possible outcomes: if the result confirms the hypothesis, then you’ve made a discovery. If the result is contrary to the hypothesis, then you’ve made a discovery.”

Much like a scientist who tests a hypothesis, you need to test the theory of your case. If you represent a plaintiff and your case becomes stronger, such a finding will obviously affect the lawsuit’s value. If you uncover facts that undercut your theory, the value of the lawsuit will be less, but you may find a way to minimize the damage before trial. Generally, a deposition is the best way to determine your case’s strengths and weaknesses, but there are occasions when it is not.

There are seven reasons to take a deposition. In addition to the one mentioned above, let’s look at two of the most important ones.

Most lawyers see depositions as fact-finding exercises. While this is true, they have a larger purpose. Great trial lawyers use depositions to determine how credible a witness will be at trial. It is a unique situation where you can look the witness in the eye and assess his demeanor. This determination is critical to deciding the settlement value of your case and whether you should go to trial.

Unfortunately, there may be times when you feel pressure from a client to save money by not taking a deposition or by having an associate with a lower billing rate take the deposition. But you are responsible for the ultimate outcome of the case and cannot delegate this task when there is a key witness. Only by seeing the witness in person and hearing his story can you accurately perceive his credibility. While a videotaped deposition by an associate would alleviate this problem to some extent, a face-to-face meeting is the only way to determine how the witness will react to your questions at trial.

Another important reason to take a deposition is to build a record of inconsistent statements from the witness that can later be used to impeach him at trial. For example, in a car wreck case, a plaintiff may testify in his deposition that after the accident the defendant was concerned about his injuries and was helpful in summoning an ambulance. However, at trial, the plaintiff may try to embellish his story and testify that the defendant was not helpful but rather belligerent and angry.  If you had not taken the deposition, you would lack the one tool to discredit the plaintiff’s trial testimony. Having taken the deposition, you will be able at trial to impeach the witness in the following way.

Example: Deposition provides inconsistent statement

Q. You testified on direct that the defendant was belligerent and angry at the scene. The truth is that my client was concerned about your injuries and helped in calling for an ambulance.

A. No.

Q. Do you remember giving your deposition in this case.

A. Yes.

Q. You were under oath?

A. Yes.

Q. I would like you to read along silently as I read from page 17 line 2. Isn’t it a fact, you were asked the following question? Was the defendant concerned . . . .

Good luck at your next deposition.

 


Welcome To My New Blog

I have written award-winning and bestselling litigation textbooks and love teaching lawyers across the country. But my 22 year old niece told me that I needed to get with the times and start blogging my advice and observations so I can start a dialogue with my readers and those that I have trained. We can all learn from each other, and my goal for this blog is to start a conversation about how to become better litigators.

My blog will focus on discovery strategies, deposition skills, trial skills and appeals with a particular emphasis on depositions and trials because that is where I believe most cases are won or lost.

My goal is to provide practical information that will help you immediately improve your litigation practice. Please provide me with your candid feedback. I want to hear from you.


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- Crisp and highly entertaining programs. Everyone is engaged.

- New tips. You can’t win if you don’t have better skills than your opponent.

- Analysis of video of actual trials and depositions teach memorable lessons.

- Dynamic interactive approach. Audience never suffers death by PowerPoint.


Course 1: Winning at Deposition

New strategies and skills based on my award-winning deposition textbook. Learn basic and advanced techniques to take depositions, defend them, overcome difficult opposing counsel, and beat the evasive witness every time.Read More