October 2, 2017

Why most depositions are a complete waste of time and client money

Posted in Commercial Litigation, Corporate Litigation by Gene Killian |

Yogi Berra once supposedly said, “If you don’t know where you’re going, when you get there, you’ll be lost.” I thought of that today as I sat through a seemingly unending deposition in what’s essentially a complicated collection case. Defense counsel never asked a question about the debt his client owes, but did manage to educate everyone about where my client’s chief executive officer (the unfortunate witness) had gone to kindergarten. (I’m only exaggerating a little.) 

It’s been a long time since I took my first deposition, while working for a big firm in New York back in the 80s. I distinctly remember the advice of the supervising partner when I asked to sit down with her and go over my ideas for the questioning. Her dismissive (and only) answer: “Just grill him.” Brilliant.

Here’s a not-so-secret secret:  Most depositions are an enormous waste of time and money.  Why do lawyers take them?  Because that’s what everyone else does!   Now, here’s the truth: If, as a lawyer, you haven’t researched the law and facts, developed a preliminary theory and plan for the case so you know what you need to prove in order to win, and committed those “elements of proof” to writing, you have no business taking depositions. (And, if you’re a client, you should be interacting with your lawyer about what depositions may need to be taken in the case, and why. If you don’t become involved, then don’t complain about the bills.)

Shane Read is a Texas lawyer who’s written a couple of pretty good books about trial practice, including Winning at Deposition, which came out in 2013.  The beginning of the book is pretty basic, but take heart, it gets better.  I was interested in what Read had to say about when and why we should take depositions.   Here are a few examples:

  • “Although you are allowed [under the federal rules] to take a deposition that lasts up to one day of seven hours, why would you want to? Don’t do it just because many attorneys do and the rules allow. First, many lawyers are unorganized, and much time is wasted going over unimportant topics, covering the same ground five and six times, and spending time reviewing documents prior to questioning the witness that should have been analyzed prior to the deposition.” 
  • “Even overly organized attorneys can take inordinately long depositions. Unlike the unorganized attorney, this attorney purposefully asks a ton of questions because he is too consumed by details. He mistakenly thinks that the more details he collects, the more ammunition he will have. Unfortunately, facts are only good if you can later find them and use them.” 
  • “Other attorneys ask many pointless questions to drag out the deposition and then save the important questions for the end. Their hope is that the witness will be worn down and make a mistake when he is tired. However, it is more likely that the witness will answer the question better because he’s used to the lawyer’s techniques and is more comfortable with the process.… In short, a deposition is useless unless you have the time to analyze it, determine what is important in it, and create a written summary.”

Read also talks about the tedious speech that virtually every lawyer in America gives at the beginning of a deposition, explaining what a deposition is, how the court reporter can’t transcribe nods of the head, how if the witness has to go to the potty, he or she should just ask, and blah blah blah.  I think some lawyer got the bright idea for this speech because a long, long time ago, at a long-forgotten trial, a witness attempted to weasel out of deposition testimony by claiming that he didn’t understand what a deposition was. I’ve been practicing for 30 years, and that has never happened to me. Be honest:  If you’re a lawyer, has it ever happened to you? Somehow, I doubt it. Also, if you’re deposing a hostile witness or the representative of the other party, why would that witness ever take advice from you? You’re the enemy! And do you really think that the lawyer for the witness hasn’t already told him what a deposition is? So, why do we need to “warm up” like Mariano Rivera in the bullpen? Why not get right to the point, put the witness on defense, and get what you need?

Read suggests that we dispense with the extensive opening formalities, and ask only a few preliminary questions:

  1. Are you aware that I represent [name of client]? 
  1. Do you understand that you are under the same oath today as if you were in a courtroom? 
  1. I am going to assume that you understand the questions that I ask you unless you tell me that you don’t understand them. Is that fair? 
  1. Is there anything that would prevent you from thinking clearly and testifying truthfully today? 
  1. If at any time you need to take a break during the deposition, please let me know.

Read also suggests that questions about the witness’s background and resume be saved until the end of the deposition. Get to the point and press for the answers you need, first.

Clients often complain about the staggering numbers contained in legal bills, and many corporations have instituted computerized billing systems with strict controls on what can and can’t be charged. But the obvious truth is that most of the (sometimes obscene) fees generated in the legal system are due to wheel-spinning and lack of focus in case preparation. For some reason, commercial litigators think it’s essential to generate millions of pages of documents in discovery and take (unfocused) depositions of every name they can find (hell, an entire e-discovery cottage industry has sprung up around us). How many of those documents actually get used at trial?  Usually, very few.  How many cases actually go to trial? Same answer.

Bottom line:  If you’re a lawyer, give some thought to taking shorter, more focused depositions, and only when you can justify the cost of the deposition by what you actually need to prove.  And if you’re a client, stay involved and be sure you know what’s going on in the discovery process, and in the preparation of your case.  I often tell our lawyers that I would rather they spend 8 hours to prepare for a 1 hour deposition, than the other way round.

I know I may get some comments or emails from readers saying that the old way is the best way, that every stone has to be turned over, that not deposing everyone in sight creates a malpractice risk, and so forth.  But great lawyers are experts in relevance, and focusing on what’s really relevant wins cases.  

And last but not least, as to depositions generally, this clip involving the famous Texas lawyer Joe Jamail never gets old.