As the fourth deposition of the day started, the lawyers were all gathered around the table. Some ties had been loosened, the coffee pot was exhausted two depositions ago, and lunch was clearly never going to happen.

The new lawyer, still fidgeting nervously and trying to control his quivering voice, asked his first question: “Please state your name for the record.” Then, he started on the litany of “instructions.” We all know these instructions by heart:

• Please answer every question verbally, because the court reporter cannot write down nods or shakes of the head.
• Please wait for me to finish speaking before you answer the question, and I will do the same.
• If you need to take a break at any time, let me know and I’ll do my best to accommodate you.
• If you do not understand a question, let me know and I will rephrase it. If you answer a question, I will assume that you understood it.

When these questions were asked for the fourth time, the other lawyers in the room looked at the window, trying to determine whether injuries caused by jumping from the second floor would give them excuse to leave the interminable proceedings. It didn’t get any better from there, when the new lawyer used a near-replica of the outline that had been used for the prior three witnesses. He confirmed with this witness simple and unimportant facts stated by other witnesses. Basically, he dragged the day on longer and longer, much to the pleasure of the court reporter, who was paid by the line.

I was that nervous new lawyer, once upon a time. The depositions were not very good. First, because I doggedly chased every formality I had ever seen in a deposition. “Please state your name for the record.” Why “for the record?” Every question is for the record, and we don’t say “Please tell me what your interpretation of the fetal monitor strips at that time was, for the record.”

Also, those preliminary questions above, with the possible exception of the fourth, are typically unimportant. The deponent’s lawyer should have already given that information to the client. If not, it can be cleared up as the deposition continues.

My biggest lesson out of those depositions, though, was to listen. I’m not a natural speaker or conversationalist, but a deposition should be more like a conversation. I was wedded to my outlines, a problem I still struggle to overcome. Focusing on the next question in my outline prevented me from listening to the answer to the last question, and as a result I missed valuable opportunities for follow-up examination.

One final note — I was defending a deposition taken by a new lawyer recently, and he asked a lot of questions like this:

• Is it fair to say that you did not complain about stomach pain?
• Isn’t it correct that you started Pitocin by 8:00 p.m.?
• Do you know if your husband called his primary care physician that night?

Questions like this are dangerous because, by the time they are transcribed, it’s hard to tell what any answer means. Therefore, their utility for summary judgment, to oppose summary judgment, or for impeachment purposes is extremely limited.

The inflection of an answer at deposition may indicate that the deponent is answering the substantive part of the question (for example a “no” might mean “no, my husband did not call his primary care physician”). But when reading the transcript, a one-word answer might reflect only the preliminary part of the question (for example, a “no” might mean “no, I don’t know if my husband called his primary care physician”). Too often these questions are asked and not rephrased, even by experienced lawyers.

For all new lawyers, the best training is to watch depositions taken by other people. Also, get feedback on your depositions by having an experienced lawyer sit with you, or give them one of your recent transcripts. There’s always a way to get better.

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In these days of cost-consciousness, every law firm should be mindful of simple ways to save money.

I don’t mean that you should stop taking depositions, just that you should be smart about the way you order your transcripts. At the conclusion of a deposition, when you place your order, you have an opportunity to improve your firm’s bottom line. In most cases, these savings will be passed on to your clients, with whom you have a fiduciary responsibility.

When the court reporter asks you what you want, the answer is simple. I always order an E-Transcript and an ASCII file to be sent to me by e-mail, and I specify that I do not want a hard copy. This gives you maximum flexibility without the postage costs (and, most court reporters inexplicably send depositions out by one- or two-day Federal Express or UPS, even when there is no rush. Those additional costs are passed on to you).

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After an August and first half of September that included double-digit depositions, extensive travel for work, three stitches for my oldest son after a bucket full of Mr. Potato Heads hit him above the eye at day care, two days at GBMC for my youngest son because of complications with an ear/sinus infection, a District Court trial (victorious!), and a two-day Circuit Court trial that was placed on the standby docket (and subsequently postponed), I needed a vacation.

Unfortunately, for a number of reasons, including the fact that my wife used most, if not all, of her leave caring for the sick kids (since I was crushed at work), I had very limited options.

So I am on the Megabus leaving Baltimore and heading to Philadelphia with my oldest in tow. We are going to visit the in-laws and I will be able to get a little break.

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One Louisiana lawyer has discovered a novel use for YouTube. He has filed a pleading electronically (see Keith Forman’s prior posts on electronic filing in Maryland, here and here), and hyperlinked that pleading to video deposition clips stored on a YouTube page. This goes beyond simply footnoting a web page.

The lawyer, John Denenea, Jr. has essentially incorporated the video deposition into his opposition to summary judgment. As most lawyers know, a video deposition can be much more effective than the transcribed version because the viewer can observe witness behavior, including those long pauses before answering questions that do not appear on the transcribed version.

Here is a link to the pleading, and here is a link to one of the videos.

First, the problems with this practice: Read the rest of this entry »

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Last week was a wild one for me.  On Saturday (yes, Saturday) I looked back at my calendar and stared in amazement at how many tasks I had “failed” to complete, even though they were on my calendar.  I missed my Generation JD blog post deadline on Tuesday. I didn’t make it to dinner with the family on Thursday.  And most regrettably, I missed the Maryland Association for Justice Workhorse Seminar on Friday.

This is sort of a microcosm of the life of a young litigator.  You start the week off with a mystic sort of confidence that you are going to scratch every single item off of your “to-do” list.  Then on Thursday you look at the list to see you’ve only scratched off the first item.  The most likely explanation for not completing your weekly goals are the unexpected tasks that come out of nowhere and take priority.  At least that’s what happened to me this past week.

Perhaps this is the most difficult part of being a young lawyer – the unpredictable.

One of my favorite quotes of all time comes from Oscar Wilde.  Wilde said, “To expect the unexpected shows a thoroughly modern intellect.”  I like this quote because of its wit and obvious improbability.  Yet, I can say with conviction that he is right – especially when it comes to being a young lawyer.

This calendar year my wife and I celebrate our 30th birthdays. My brother and sister-in-law celebrate their 35th.  And my mother celebrates her 65th.  In honor of these milestones, my mother is trying to plan a once in a lifetime vacation.  A cruise.  A trip to the Caribbean.  Whatever.  Something really nice.

It’s really exciting too.  There’s only one problem – my trial calendar.  Save for a six-week stretch in the summer, my firm is booked solid until February of 2011.  But this is just the tip of the iceberg.

Sure, my calendar looks empty in July.  But I could walk in the office tomorrow and have five depositions scheduled for the first week of that month.  I could block off that week, but that only protects against the known and predictable.  What if a judge decides to schedule an emergency hearing on a dispositive motion on a case in which I have primary responsibility during the week I’ve blocked off?

It’s these “what ifs” that can really frustrate the planning of anything, whether it be work related or family related.  And despite Mr. Wilde’s words of encouragement, expecting the unexpected or predicting the unpredictable just isn’t very realistic.

We all wish we had crystal balls sometimes, but that’s just stuff made for fairy tales.  All we can do is our best.  We can forecast, but at the end of the day we are no better than Tom Tasselmyer predicting the weather (well, maybe a little better…those guys are never right).

So, when you find yourself like me, in awe of your uncompleted “to-do” list from Monday on Thursday, remember that’s why God made weekends (sort of).

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Earlier this year, the Philadelphia Bar Association’s Professional Guidance Committee was requested to offer its advisory opinion on a novel issue involving social networking sites and witness background investigation.

The question was whether a lawyer could, within the bounds of the Rules of Professional Conduct, ask another person to contact a witness on Facebook or MySpace in order to “friend” them and gain access to the information on their personal profiles.  Its opinion, issued in March, can be found here. (Special thanks to Joseph A. Hennessey of Beins, Goldberg, & Hennessey, LLP for recently forwarding this opinion to the MSBA Litigation Email List).

The situation about which the opinion was written involved a lawyer who had deposed an independent witness whose testimony was adverse to his case.  During the deposition, the attorney learned that the deponent had personal profiles on both Facebook and MySpace.  He accessed those sites to view the profiles, but access was limited to “friends” of the witness.  The attorney wanted to know the ethical implications of having a third party “friend” the witness on Facebook and MySpace for the sole purpose of gaining access to her personal profiles.  The attorney hoped to use the information on the profiles against the witness at trial.

Though non-binding, the Committee opined that the proposed conduct would violate Rules 8.4 (Misconduct) and 4.1 (Truthfulness in Statements to Others) of the Pennsylvania Rules of Professional Conduct.  Those rules prohibit “conduct involving dishonesty, fraud, deceit or misrepresentation,” and the making of “a false statement of material fact or law to a third person.”  It does not appear that the Maryland State Bar Association’s Committee on Ethics has yet addressed a similar issue.  However, Pennsylvania’s relevant Rules of Professional Conduct are identical to Maryland’s, so it is likely Maryland’s Rules would similarly prohibit such conduct.

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