The Trial Practice Tips Blog

This Blog Is on An Extended Hiatus: A Guide to the Archives

Although I've been posted here regularly (sometimes semi-regularly) for more than ten years, I think it's time to wrap up this blog and put some sort of bow around it.

As of now, I have no plans to delete the blog entirely. After all, it still gets thousands of page views every week.

But I don't plan to update it much any more, either. Unless I write some new law-related wonder novel that I want to promote (and that's not likely to happen anytime soon), I might not update this blog again ever.

For anyone who is interested, I'll continue to track my publications and other current projects at evanschaeffer.com. Meanwhile, Trial Practice Tips will remain here, as ever. Anyone who wants to view the archives is welcome to do so. The easiest way to do this is by the category pages, which are on the sidebar on the left. The thousands of posts are also organized by date -- again, look to the sidebard on the left.

As always, thanks for reading!  -- Evan

More Articles I Wrote Recently for Lawyerist

Here are two articles I wrote recently for Lawyerist, both on litigation-related themes:

1. How to Take a Deposition Like a Pro

2. How to Have a Collegial Relationship with Opposing Counsel

I tried to fill both articles with solid, useful tips. Please take a look!

Fast and Thorough Deposition Preparation

The sixth revision to my book about depositions, Deposition Checklists and Strategies, is available from James Publishing.

Here's information about the book from the James Publishing website--

Creating an outline is the most efficient way of formalizing your preparation for a deposition. Use the outlines and pattern questions in Deposition Checklists & Strategies to avoid omissions, improve your advocacy, and handle unfamiliar areas with confidence.

You receive:

Underlying law. Each chapter begins with a summary of the substantive law at issue. Also included is an analysis of common defenses.

Deposition outlines. Each chapter contains several full-length deposition Q&A sections organized by issue, based on common fact patterns, and directed at specialized deponents like experts, corporate representatives, and treating physicians. The book’s questions are easy to mix and match with your own.

Commentary. Thorny or common issues are annotated with practice-proven alternatives and solutions.

Bonus outlines. Thumbnail checklists that contain themes and issues rather than question-and answer dialogue are provided for less-common deponents.

Related discovery forms. Complaints, interrogatories, requests for admissions, requests to produce, and more finish each chapter.

Practice tips. Sprinkled through each pattern deposition is practical advice learned from hundreds of depositions.

The book also contains pages of strategies for expert depositions, illustrated by outlines in a variety of types of cases.

If you're interested in honing your deposition skills, please take a look at my book--and thanks!

New at Lawyerist: Self-Editing for Legal Writers

I have a new article at Lawyerist, "Write Better Legal Documents with an Editing Checklist"--

By using a self-editing checklist to edit your writing, you will quickly improve the quality of your finished work. You will also become a stronger writer who produces better first drafts and finishes writing assignments quickly.

Read the complete article at Lawyerist.

Is That Deposition Really Necessary?

If you want to dramatically reduce litigation costs, cut out the number of depositions you do. To figure out whether or not you should really be deposing a witness, read my article "5 Questions to Ask Before Taking a Deposition," published today at Lawyerist.

One commentator, lawyer Stewart Weltman, explains how unnecessary depositions became such a fixture in modern practice.

A few decades ago, large firms with "virtually unlimited budgets" began to depose every witness with any connection to the case, no matter how tenuous. Soon smaller firms also adopted the practice.

Weltman notes that in some firms the "no stone unturned" approach also served a second function. Depositions of unimportant witnesses were used to train new lawyers, who wouldn’t derail the case if they flubbed the deposition.

I experienced this training method myself. When I began my career in the early 90's, associates were frequently allowed to depose witnesses that a partner had deemed unimportant. It wasn't only because the associate was unlikely to derail the case. Given the witness's unimportance, the associate wouldn't have to know very much about the likely trial strategy, or even the case itself, in order to prepare. It was regarded as an efficient way to train a lawyer — and still is today.

As a young lawyer, I didn’t recognize the dangers of this practice. Namely, it promotes the false belief that a lawyer can depose a witness without fully understanding the case. This idea is backwards. Only by putting case strategy first can you begin to make good decisions about which witnesses should be deposed.

That's one of the points of my article today in Lawyerist. Interested readers should also check out Weltman's article "Deciding Who to Depose," Part 1 and Part 2.

The Top Legal Podcasts

From Legal Productivity, "Top 10 Legal Podcasts," by Tim Baran--

Trying to maintain a current, relevant legal blog is hard enough. Podcasts require a whole other level of commitment. Not surprisingly the landscape is littered with dated efforts. However there are a few legal podcasts that continue to churn out quality programming.

Baran continues by listing 10 podcasts with "quality programming." Read the post and subscribe to the podcasts!

Discovery Tip: Interrogatories About Requests for Admissions

Requests for admissions should be accompanied by a separate interrogatory that says something like this: "To the extent that any of your responses to any of Defendant's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

To my mind, it's this interrogatory that's one of the most useful parts of the request-for-admissions procedure. By changing the interrogatory slightly, you can also use it to discover documents and deponents concerning admissions.

Originally published 6/20/05.

Depositions of Corporate Representatives: The "Second-Bite" Issue

We're talking about 30(b)(6) depositions or their state-court equivalents. As a plaintiffs' lawyer, I've always taken the position (usually in Illinois state-court cases) that these do provide a "second bite at the apple." In other words, if I serve a notice for a corporate-rep deposition, and XXX Corp. makes Mr. Squirrely available to testify about my list of topics, I figure I can still depose Mr. Squirrely at a later date as an individual witness.

Defense counsel sometimes complains about this, but I've never had anyone go so far as to file a motion. So after a bit of belly-aching, Mr. Squirrely gets produced a second time.

Anyone interested in this issue should see the article "Organizational Depositions: Do They Allow a Second Bite at the Apple?" by David Markowitz, reprinted at the website of Markowitz Herbold PC. According to the Markowitz, the second-bite issue "has increasingly been raised in federal litigation under Rule 30(b)(6)." Markowitz then surveys the state of the law.

For still more on 30(b)(6) depositions, see these various sources on the web: "Practice Tips and Developments in Handling 30(b)(6) Depositions," by Michael R. Gordon; "Using 30(b)(6) Depositions to Bind Corporations," by C. King and Evan Sauda; and "The Scope of Rule 30(b)(6) Depositions," by Kevin C. Baltz.

Related posts on The Trial Practice Tips Blog:

1. Discovery: Cut Out the Middleman

2. Discovery Concerning the Parameters of Electronic Information

3. More on Corporate-Representative Depositions, Plus a Sample Notice

When Are Leading Questions Permitted During Federal-Court Depositions?

Can lawyers ask leading questions during federal-court depositions? If so, when?

Under federal rules, the examination and cross-examination of witnesses during depositions proceeds “as permitted at trial.” Fed.R.Civ.P. 30(c). This means that the propriety of leading questions is determined just as it would be at trial.

The issue of leading questions at trial is the subject of Federal Rule of Evidence 611(c)—

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, and adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

To determine whether leading questions are permitted at a federal-court deposition, ask yourself the following questions:

• Is the leading question in direct or cross-examination? The lawyer who noticed the deposition and who starts asking questions first is doing the direct examination; other lawyers are cross-examining. Under Rule 611(c), leading questions are permitted during cross-examination.

• If the leading question is begin asked during direct, is there another permissible reason for it, such as the development of the witness’s testimony or the fact that the witness is adverse to the questioning lawyer? If not, leading questions are impermissible under Rule 611(c).

In real-life practice, of course, lawyers will ask leading questions during depositions even when they aren’t strictly permissible, waiting to see whether you object. When you are the examining lawyer, you can take the same approach—ask leading questions when you want unless and until the other side objects.

An objection to a leading questions is a form objection that is waived unless it is made at the time the question is asked. See Fed.R.Civ.P. 32(d)(3)(A) (“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time”) (emphasis added).

Originally published 1/18/07

New Legal Fiction: A Book Review

At my other blog, Evan Schaeffer's Legal Underground: "David Lat's Supreme Ambitions: A Review."

Those Preliminary Deposition Questions: Don't Make a Speech

Because they’re impatient to get it out of the way, some lawyers turn the standard preliminary deposition questions into a speech:

Hi, I’m Bill Smith. I represent the plaintiff and I’m here to ask you some questions today. As you probably know, you’re under oath today and sworn to tell the truth. I’m here today to try to find out some basic information. If you don’t understand one of my questions, please let me know. And let me know if you want to take a break. Okay?

What’s wrong with this approach? One of the purposes of the preliminary questions is to make a record that the deponent is fully aware of the way the deposition works. This record might be important at trial if you need to use the deposition to impeach the witness. An example:

Q. You remember when I took your deposition on January 22, 2008?

Q. You remember you were sworn to tell the truth?

Q. And I told you that even though we were in an informal setting around a conference table, your testimony had the same force and effect as if we were in trial before a judge and jury?

Q. I asked you if you were prepared to answer my questions truthfully?

Q. And you answered “yes”?

. . .

Though you won’t often conduct this sort of cross-examination, you won't even have the option if you start the deposition with a muddy record. Rather than make a speech at the start of a deposition, ask questions or make statements followed by "Okay?" or "Do you understand?" This will give you short "impeachment nuggets" that you can use later, if necessary.

For more on preliminary deposition questions, see the following posts:

1.  "Those Preliminary Deposition Questions: What's Their Purpose?"
2. "How to Cross-Examine at Trial with Inconsistent Statements"
3. "Impeaching at Trial with a Prior Inconsistent Statement: How to Validate First"

Publication note: Originally published 1/22/08.

How to Write a Good Request for Admission: A Second Take

Requests for admissions "can provide a good avenue in which to firmly establish undisputed facts at trial," says Keith Lee in his post at Associate's Mind.

Titled "How to Write (Better) Requests for Admission," Lee's post is a welcome primer on an often-misunderstood topic. As Lee notes--

Requests for Admissions are sort of the red-headed stepchild of the discovery process. Interrogatories and Requests for Production get all the attention in law school and CLEs, while poor Requests for Admissions (RFAs) sit in the corner, never asked to dance.

After explaining the basics, Lee writes some sample requests for admission based on an imagined defamation case. Lee concludes, "Take the time to look for discovery guides in your jurisdiction that provide instructions and advice on how to maximize your use of RFAs."

Related posts from Trial Practice Tips:

1. "How to Write a Good Request for Admission"

2. "Authenticating Exhibits Using Requests for Admissions: Two Methods"

3. "Responding to Request for Admissions Under the Federal Rules"

How to Write a Good Request for Admission

Gregory S. Forman, a lawyer from South Carolina, has a helpful blog post titled "What makes a good request for admission?" If you happen to be drafting some requests for admissions, you might want to take a look. I advise reading the whole thing, so that you'll fully understand Forman's closing lines--

Thus, the ideal request to admit is: 1) not trivial; 2) not already acknowledged; and 3) narrow enough that an admission is useful but a denial is subject to impeachment.

If you regularly use requests for admissions in your cases, I also advise you take a look at a tip I wrote about at Trial Practice Tips some years ago: "Discovery Tip: Interrogatories About Requests for Admissions."

Depositions: Questions to Ask about Documents

Here's a checklist of some questions you can ask about documents at depositions, while ignoring the objection from the other side that the document "speaks for itself." It doesn't, and the objection can be ignored--

• Who wrote the document;
• Who received the document;
• Whether the witness received the document;
• Whether the witness maintained the document in printed or electronic format, and where, and why;
• Where the original of the document is maintained;
• The identity of the author and the recipients;
• The identify of others mentioned in the document;
• If the witness wrote the document, what he meant by certain passages;
• If the witness didn't write the document but did receive it, whether he took any action as a result of reading the document;
• Whether the facts contained in the document are accurate, and why or why not;
• Whether the events described in the document are described correctly, and why or why not;
• Whether the witness agrees with the way particular passages are phrased, and why or why not;
• Whether the document refreshes the witness's recollection on points about which the witness claimed to have no memory;
• Whether the witness reviewed the document in preparation for the deposition;
• Questions meant to authenticate the document for trial;
• Questions meant to establish foundational elements for use of the document at trial.

Note that these questions can be mixed or matched, used or not used, as the situation merits and in any order.

See also these related posts:

• "Authenticating Exhibits Using Requests for Admissions: Two Methods"
• "Using Emails in Support of Summary Judgment or at Trial"
• "How to Introduce Exhibits at Trial"

Publication note: Originally published 1/10/08.

Selling a Law Practice? Listen to this Podcast

It's the second podcast from Sam Glover and Aaron Street at Lawyerist: "Podcast #2: Paul Floyd on How to Value and Sell a Law Practice." According to Glover, "Among other things, Paul helps lawyers sell their practices, and I wanted to talk to Paul about valuing a practice because I felt like I never got a straight answer when I have asked how to do it."

It's a very interesting interview, which you will enjoy even if you aren't selling a practice. I know I did, especially Floyd's comments about personal-injury firms. I learned a number of things I didn't know.

The podcast also includes a discussion of this question: How do you calculate flat fees when starting out? A great second podcast from Lawyerist.

Using Requests for Admission to Simplify Your Case

In preparing your case for trial, don't overlook requests for admissions.

Requests for admissions are powerful tool for establishing proof on matters your opponent won't be able to (or doesn't plan to) to deny at trial.

In an auto case, a plaintiff might simplify the case with requests for admissions like the following:

• Admit that the collision occurred on Vencil Street.
• Admit that the speed limit on Vencil Street was 35 mph at the time of the collision.
• Admit that the defendant was traveling about 55 mph at the time of the collision.
• Admit that the eastbound defendant collided with the westbound plaintiff in the westbound lane of traffic.
• Admit that the plaintiff missed work for a period of time as a result of her injuries.
• Admit that the plaintiff missed work for 193 days as a result of the injuries she sustained in the collision.
• Admit that the plaintiff incurred reasonable and necessary medical bills in the amount of $52,000 from St. Joseph's Hospital as a result of the crash.
• Admit that the injury to the plaintiff's right hip, sustained in this collision, is permanent.

Source: "Jump-start your case with requests for admissions," by J. Franklin Long, Trial, 4/02. (The examples are quoted from a sidebar in the article; there are many more examples in the article.)

Publication note: Originally published 1/5/10

Related posts:

1. "Authenticating Exhibits Using Requests for Admissions: Two Methods"

2. "Responding to Request for Admissions Under the Federal Rules"

3. "Discovery Tip: Interrogatories About Requests for Admissions"

4. "Interrogatory Answers "Subject To" Objections: Send a Request for Admission"

Depositions: Did You Exhaust the Witness's Memory?

When you are finished with a topic in a deposition, don't move on too quickly. It's a common error, as Brad Bradshaw explains in his article, "Safeguarding Against Deposition Omissions"--

Another common mistake is failing to exhaust the witness’s answers before moving on. Asking, “Who was there?” is only the first part of the question. Once the witness stops listing names your next question should be, “Was there anyone else?” Otherwise, you run the risk of leaving the deposition with incomplete information. If that missing information emerges at trial, the witness will be able to claim that you did not let him finish (and the transcript will appear to support the witness). Sometimes witnesses simply forget a portion of the truth. Other times the omission is more sinister. But regardless of whether the information was omitted intentionally or unintentionally, by asking, “What else?” or “Do you remember anything else?” you will get a more complete picture of the witness’s position and reduce the likelihood of surprises at trial.

This technique is commonly called "boxing the witness in." As Bradshaw notes, "Only after completely boxing the witness into his answer should you move on to the next topic."

Bradshaw's article contains other good tips too, for example, what to do when a witness includes the phrase "at this time" in the answer. Recommended.

A Tip for Controlling Opposing Experts During Cross-Examination at Trial

When cross-examining the opposing expert at trial, stick to that old adage--leading questions only. Asking questions that call for either a "yes" or "no" is the best way to keep the opposing expert from giving that self-serving speech that he's just waiting present to the jury . . . and which he will present just as soon as you ask, frustrated at your own inability to elicit the testimony you want, "Well, what is your opinion based on?"

If you did a good job of deposing the expert before trial, your cross-examination won't be as difficult as it might seem. In fact, it should be constructed entirely of questions you have already asked. Consider this basic outline, which will work in many situations--

• Weaknesses in the witness’s experience and qualifications that call into question his authority to render the opinions he gave on direct. 
• Deficiencies in the expert’s preparation to render an opinion. 
• Assumptions the expert is making to support his opinion that will be disproved in your case.
• Admissions the expert made in his deposition that support--
  
  • your facts and theories, and
  • the qualifications, competence, and credibility of your expert and his methods.

Source note: The first paragraph of this post was written after browsing a chapter of On Trial: Lessons from a Lifetime in the Courtroom, by Henry G. Miller.

Publication note: Originally published 9/21/05.

Eleven Years of Archives

Like my other blog, Evan Schaeffer's Legal Underground, this blog is entering its twelfth year.

You can find eleven years of archives, plus a list of category pages, here.

An Associate Steps in for the Lead Lawyer at Trial

At my other weblog, Evan Schaeffer's Legal Underground: "An Amusing Trial Lawyer Anecdote?"