EP 718: Deposition Tips, Part 1: Style, Approach, and Brainstorming Before You Ever Ask a Question

Episode Notes

Transcript

Announcer [00:00:01]:
Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Eric Veith.

Tim Cronin [00:00:20]:
Welcome to another episode of The Jury Is Out. I’m Tim Cronin.

John Simon [00:00:23]:
I’m John Simon.

Tim Cronin [00:00:24]:
Thank you for joining us. So, And John, we’ve done some episodes here and there where we’ve talked about particular types of depos or some depo tips. We’ve kind of tried to put a lot of our tips together and reorganize it. And we’re going to do a series, as I understand it, on deposition tips that starts with way before you’re even taking the depo, and then all the way through what you do in the depo, and then follow that up with some specific examples of Depo tips for particular types of depos, like deposing the defendant doctor, for example, right?

John Simon [00:00:58]:
Yes.

Tim Cronin [00:01:00]:
Okay. So I think there’s a book out there, and I haven’t read it yet, you may have, that says like depos are the new trial. Are you familiar with that book?

John Simon [00:01:09]:
Well, I don’t know about the new trial, but depos, you know, very few cases are won at trial. I mean, just say that. I mean, they can be lost at trial, but easily, But, you know, cases that are won, you know, they’re won in the trenches, they’re won in the discovery. And, I mean, to me, the most important thing is to have some purpose, right? When you’re gonna take a deposition.

Tim Cronin [00:01:30]:
How your trial goes, in my opinion, is largely determined by how well of a job you did in your—

John Simon [00:01:37]:
So I’ll give you an ex— a very recent example, a case that, that Johnny and I tried in Chicago. And very early on in the case, you know, we took corporate rep depositions. It was a hotel case. It was an assault, sexual assault case at a hotel. And we got tremendous admissions. Of course, they were admissions because they were— witnesses were being truthful.

Tim Cronin [00:01:58]:
Yeah.

John Simon [00:01:59]:
And we were asking some pretty straightforward, straightforward things like, you know, do you—

Tim Cronin [00:02:03]:
Refreshing.

John Simon [00:02:04]:
Right. I mean, do you, you know, restrict access to your guest floors?

Tim Cronin [00:02:08]:
Yeah.

John Simon [00:02:08]:
Do you do patrols? Do you do security patrols? Is it important to do that? You know, and then all of a sudden were at trial and the attorney on the other side got so frustrated. He said that those are, those are Mr. Simon’s rules. Those are Mr. Simon’s rules. And of course, every one of them I got from the man who was sitting at the table next to him, you know, the representative for the company.

Tim Cronin [00:02:28]:
Yeah.

John Simon [00:02:28]:
And, you know, it’s, uh, and I, I think part of it too is the biggest problem is people go into a deposition, as you’ve said before, walk into a deposition with a pen and a notepad. thinking, I wonder what this person’s going to say. Or, you know, it’s—

Tim Cronin [00:02:42]:
it is— I can’t believe it when I see it.

John Simon [00:02:44]:
But here’s the thing. It is information seeking, but it’s not really.

Announcer [00:02:47]:
No.

John Simon [00:02:47]:
I mean, nowadays with everything that’s out there, you should know everything there is to know about the person you’re going to depose. You should know every depo, every statement, subject matter, you know, what the codes are, what the regulations are. Your whole case should be pieced together already before you ask one question at a deposition. And so, you know, to go in—

Tim Cronin [00:03:05]:
Even in car accident cases, you should have a police report with statements from the witnesses you’re taking, even if they our part. Like, you should know.

John Simon [00:03:12]:
You have a theory. If it’s a product case, you have a theory if you’re taking a deposition. And guess what? You’ve also spoken to experts, and you have theories in terms of what the defect is and how it could have been fixed and what kind of testing that they do. So, you know, nowadays, all the time, before you take a deposition, a serious deposition in the case, you know all about the industry, the standards, the regulations, the safety rules. you know, the witness. And, and really, you need to go in there with a plan. Yeah, a goal or a plan versus going in— and I see it way too often— and that is somebody will go in and they’re literally asking questions, and it just screams to me they don’t know a damn thing about the facts of the case. Yeah, you know, they’re asking things that they should actually know, given no thought to what their goals are to try to make their case better.

John Simon [00:04:00]:
Right.

Tim Cronin [00:04:00]:
So I’ve kind of organized this into different sections. And let me sort of lay those out and then we’ll start back from the beginning. The first is just your style and approach, both during and before the depo, depends on the circumstances, of course, what kind of witness it is, what kind of case it is, what you want to accomplish.

John Simon [00:04:17]:
Absolutely.

Tim Cronin [00:04:18]:
And we’ll have 5 basic tips about style and approach. Then kind of going back to the beginning is brainstorming. That’s my first step. I know it’s yours. Brainstorming. Before you start making an outline or putting your exhibits together, brainstorming. And there’s 4 basic brainstorming tips. You need to think about the reason for the depo as part of that brainstorming, what you’re trying to accomplish.

Tim Cronin [00:04:41]:
And then we have 12 possible goals to accomplish in any deposition, which can frame, you know, how you prepare and how you, what your outline looks like and what you do. And then prepare, prepare, prepare. You’ve heard me say over and over, I always try to be the most prepared person in the room. You have different versions of the same thing. There’s 8 tips to be the most prepared person in the room. And then we get into during the deposition and we have 25 tips once the deposition starts of how to approach the witness, other kind of tricks to, to get the witness to answer, et cetera. And then after that, we have cross-exam tips or different cross-exam strategies for depo or trial. So this is gonna take place over multiple episodes.

Tim Cronin [00:05:26]:
And then going back to the beginning, John, style and approach depends on the circumstances. I think what you do before and during the depo depends on what type of depo it is.

John Simon [00:05:34]:
Absolutely. Yep.

Tim Cronin [00:05:36]:
The approach and tone to take with the witness will depend on your goals for that depo, and then your read of the witness once you start. How many times have you thought you were gonna, had a plan to go in with a pretty aggressive, not, not like a jerk, but you know, you’re laying the ground rules and I’m going to be really assertive. And then you met the witness and you’re like, I don’t need to do that with this.

John Simon [00:05:56]:
Right. You know what, this was a couple of weeks ago. And, you know, I go in with 3 outlines, 4 outlines, you know, 2 outlines, depending on who the witness, how their personality is going to be in the position. You know, are they going to be honest and straightforward? Are they going to fight you on every single thing and, you know, argue about what day of the week it is? And the other thing too, there are— I videotape all of them. And it’s important, obviously, that’s a videotape. You know, you want to— if somebody’s getting upset in the deposition and, you know, unnecessarily, I want it to be the witness. But, you know, I went into this deposition and it was— the defendant had 3 separate experts all kind of covering the same thing. It was very, you know, medical causation, and it was some really complicated stuff.

John Simon [00:06:38]:
It was a cancer case. Every one of them, I went in not knowing what approach I was going to take until I spent some time with the witness. And each one, it was, it was, it was great because all 3 witnesses were different examples of a type of witness that you encounter. And, you know, the first one was clueless and unprepared, like didn’t read the file, didn’t know what was going on. I handled that. I didn’t need to argue with him. I mean, he was really basing opinions. He hadn’t read anything.

John Simon [00:07:02]:
But the interesting thing was that one of the, the second one that I deposed was incredibly qualified. And the guy had written numerous, numerous articles on this very topic. And he’s not somebody I wanted to go in and battle with, you know? And so what I did was I just talked to him about, it was a causation issue. And in Missouri, we have contributed to cause. And what I did is I talked to him. It seemed like he was an honest, straightforward, highly qualified individual, brilliant person. So you treated him with respect. I treated him exactly how he should have been treated.

John Simon [00:07:34]:
And I just talked to him at first about the scientific method, right? And how important that is. And we shouldn’t guess, we shouldn’t speculate.

Tim Cronin [00:07:40]:
Basically got him teaching a class. Yeah.

John Simon [00:07:42]:
And he agreed with all of this. And pretty much at the end of the deposition, I got him to agree that he wasn’t able to say what they were asking him to say.

Tim Cronin [00:07:50]:
Because he didn’t view you as an adversary.

John Simon [00:07:52]:
Yes, right. I wasn’t an adversary. I wasn’t challenging his turf. Yeah, I didn’t need to.

Tim Cronin [00:07:57]:
Right.

John Simon [00:07:57]:
You know, and I had another, you know, I had another version of the outline where I was prepared to go head-to-head with him and, you know, cross-examine him with the articles he had written. But if you can get there with, you know, easy road first, right?

Announcer [00:08:08]:
Yeah.

John Simon [00:08:09]:
I mean, if there are two ways to get there, right, exactly.

Tim Cronin [00:08:11]:
So, and most, by the way, most of what we’re going to be talking about is geared towards when you’re deposing adversarial or semi-adversarial witnesses. It’s not about like putting your client— we’ve had episodes about prepping your client for a depo or your own experts. You’re not deposing them. The other side is. So this is mostly about opposing experts, defendants themselves, corporate reps.

John Simon [00:08:31]:
And like you’re saying, I think at the beginning, spend some time reading the witness, right?

Tim Cronin [00:08:36]:
Correct.

John Simon [00:08:36]:
Spend some time reading the witness. What kind of person is this? What kind of rapport? Try to build some rapport. You’re always going to get more.

Tim Cronin [00:08:42]:
That’s just what you’re focusing on at the beginning of the depo.

John Simon [00:08:44]:
Yep.

Tim Cronin [00:08:45]:
Building rapport and reading them. Sometimes the best thing you can accomplish is just to try to sideline that witness, eliminate their ability to say much. Some, like you were just talking, John, if you’re overly friendly and deferential, you get a read on them. They’re the type of person who will agree with nearly everything you say, and you can build your whole case with them. Some are not like that.

John Simon [00:09:04]:
Yeah. Some is, what’s your name? And you get, well, what do you mean?

Tim Cronin [00:09:06]:
Yeah.

John Simon [00:09:07]:
What, my first name, my last name?

Tim Cronin [00:09:09]:
What time is it? Well, that depends. Are we talking about—

John Simon [00:09:11]:
Time zone.

Tim Cronin [00:09:11]:
Time zone.

John Simon [00:09:12]:
Here’s the thing, there’s stuff out there on everybody with, you know, especially with expert witnesses. Just get it, you know, find it. Yeah, easy to find at this point.

Tim Cronin [00:09:20]:
And, and don’t wait.

John Simon [00:09:21]:
And look, don’t wait until, you know, I see this a lot too where you go in, you take the deposition, let’s find out what their experts are and then let’s dig afterwards, you know?

Tim Cronin [00:09:29]:
Yeah.

John Simon [00:09:29]:
Get it before because a lot of times you can set the witness up to say things that they’ve said the opposite in, you know, either that articles or depositions.

Tim Cronin [00:09:39]:
Or you can let them know, and we’ll talk about this, they can— you can make it pretty clear really quick that you’ve read everything that they’ve ever had that’s in the public sphere. And if they— then they won’t go out on the limb they were coached to go out on.

John Simon [00:09:51]:
Yeah.

Tim Cronin [00:09:51]:
So like, you know, some you have to be more direct and aggressive.

John Simon [00:09:54]:
Here’s the other thing too that everybody needs to realize, that witness, especially the, the, you know, the paid witnesses, the experts, who, who do this for a living. Guess what, everybody? They’re reading you.

Tim Cronin [00:10:06]:
Correct.

John Simon [00:10:06]:
Also, in the beginning of that, they’re sizing you up. They’re sizing you up. Like you said, if, if you don’t know what you’re talking about, if you don’t know, if you haven’t studied the literature, they’re going to run you over. They’re going to run you over. Yeah. And so they’re going in the same way. What kind of person is this going to be?

Tim Cronin [00:10:19]:
How prepped are they? Are they prepped?

John Simon [00:10:20]:
Are they prepared? Are they, are they just, you know, BSing their way through this? So it’s important to know everything you can about the witness beforehand, but mostly In that first 15 minutes, first 15, 20 minutes, develop— find it out, develop some rapport.

Tim Cronin [00:10:36]:
And so the opposite of the kind you just talked about, that if you were deferential and very respectful, and we’re not suggesting you shouldn’t be respectful to anybody, but some you have to be a little bit more direct and aggressive, challenging them with documents or testimony right from the outset if you get a read on them as you begin each new subject. Every time they make an easily disproven claim, pull up some article or past depo they wrote. The goal, in my opinion, is to let a combative witness know as soon as possible, this is your depo, you’re in charge, not them. Their lawyer can’t save them. If you’re prepared enough and consistently undermine their credibility with hard evidence, you can beat that combative witness kind of into submission or otherwise effectively make them unable to be called at trial if they just keep going nuts. But a point you made earlier, John, no matter what, even with that witness, if, especially if videotaped, remember the depo could be played or read to the jury or the judge. So don’t make yourself look like an ass. Yeah, no.

John Simon [00:11:37]:
And, and you always wanna be, always be professional, be respectful. Yeah, that’s a whole nother podcast.

Tim Cronin [00:11:43]:
But you can do that and still not let yourself be run over and be in control of the depo.

John Simon [00:11:47]:
And, and, you know, we’ll get to some things about when they don’t answer questions and how to handle that. But this is, you know, it is, it is so important to spend some time to try to develop a positive relationship, I think, with the witness. Give them an opportunity to be nice.

Tim Cronin [00:12:01]:
I try that first. Yep. Try to be very nice. Give them an opportunity to do so. And it usually—

John Simon [00:12:05]:
How do you start your first question in the deposition? What’s your— you have a first question you usually use?

Tim Cronin [00:12:10]:
So here’s what I usually do after I have them say their name. I say, have you ever had the wonderful pleasure of giving a deposition before? It’s very fun. And it kind of puts them at ease.

John Simon [00:12:19]:
Right.

Tim Cronin [00:12:20]:
With an expert, it’s a little bit less easy to do that. Or I’ll start with what I know about their qualifications and if there’s something impressive in their resume, I’ll start with like a very complimentary phrased question.

John Simon [00:12:33]:
And so here’s, here’s the other thing that we see a lot, almost at every deposition, you have someone who starts the depo and they say, Now let me go over the ground rules. And again, this is a, this is a deposition. When you ask a question, you need to listen to the question. You actually have to answer the question and don’t speak over each other. And what that does, it’s regimented, I think, and it gets people on the edge of— if they’re already nervous at the beginning of the deposition, it’s going to make them more nervous. You want to have them relax a little bit, put their guard down. Not, not to be— we’re not being misleading or anything. It’s just, yeah, you know, it’s, it can be a pleasant experience or less, you know, You know, it can be somewhat pleasant, but I always give them the benefit of the doubt.

John Simon [00:13:10]:
I go in thinking that they’re going to be professional, they’re going to be respectful, they’re going to be polite until they prove me wrong.

Tim Cronin [00:13:16]:
If it is somebody who I’ve deposed, like a repeat expert that I’ve deposed before, and I already know they’re combative, right after I ask them to state their name, I will say the following often in, in like a let’s not fight too much if we don’t have to kind of way. I say like, Mr. Smith, we’ve gone through this before. I’m here to find out your opinions, but I’m also here to get answers to particular questions. Your lawyer’s going to have a chance to follow up. You’re going to get to explain everything, but can you do me a favor so we can get this done quicker and fight as little as possible? If I’m asking you what time it is, I’m not asking you how the clock is built. You understand what I’m saying?

John Simon [00:13:57]:
Right, right.

Tim Cronin [00:13:57]:
And they go, I get it. I go, can you try to just answer my question? And they go, I’ll do my best. And it usually makes them a little bit, a little bit nervous.

John Simon [00:14:04]:
You know, Tim, it’s interesting that, that I’ve, I’ve had something that always happens a lot.

Tim Cronin [00:14:09]:
Yeah.

John Simon [00:14:09]:
And one way I, I’ve handled it in the past, you know, I had a, a deposition recently in the last month and it was a very, again, a very qualified expert. Uh, you know, there’s no question that the person knew what they were doing. Wasn’t really a paid kind of expert who testified a lot. It’s a very narrow scientific medical issue. And he was, you know, he was going to be in charge and say what it was and, you know, very like that. And, and of course I started asking some questions and he was, you know, rephrasing them for me and, you know, changing the question. Like if at the very beginning of the deposition and before we really got into it, and instead of saying, you know, doc, just would you answer my questions? Okay.

Tim Cronin [00:14:49]:
Yeah.

John Simon [00:14:50]:
I, I just said, Look, here’s the thing. Can we both agree we’re both professionals? You are and I am. Can we both agree in this deposition that we’re going to act like professionals and treat each other professionally? He said, I’m really upset by that, that you would— sounds like you’re accusing me of being unprofessional. That’s the first thing he said.

Tim Cronin [00:15:08]:
Yeah.

John Simon [00:15:09]:
And I said, doctor, I had no intent. I apologize. I apologize. And it won’t happen again. If you took that the wrong way, I didn’t intend it. And I said, can we just go forward, you know, as professionals?

Tim Cronin [00:15:21]:
Yeah.

John Simon [00:15:21]:
The rest of that deposition went so smooth. I was— there were objections by the lawyer, speaking objections, trying to get her not to answer stuff. And he’s like, I’m sorry, what did you say, Mr. Simon?

Tim Cronin [00:15:29]:
Yeah.

John Simon [00:15:30]:
And he answered the questions.

Tim Cronin [00:15:31]:
So again, try to bring the temperature down.

John Simon [00:15:33]:
Yes. And I, I just think if you get somebody who’s already antagonistic from the beginning, you got a hell of a lot harder, you know, path than somebody who’s actually Somebody who might— you don’t need to have them like you. You just don’t need to have them going out of their way to obstruct you.

Tim Cronin [00:15:49]:
And if you can bring that temperature down for somebody who you know is more adversarial and combative, if there’s things you’re going to have to fight with them about, try to bring the temperature down and get as much as you can to agree to and save the stuff you’re going to fight with them about. Yeah.

John Simon [00:16:03]:
And even things like, well, that’s fair. That’s fair, doctor. That makes sense. I can see that.

Tim Cronin [00:16:07]:
That’s a good point.

John Simon [00:16:08]:
That’s a good point.

Tim Cronin [00:16:09]:
Even if I don’t think it is.

John Simon [00:16:10]:
And tell me about that. Something like that a little bit more.

Tim Cronin [00:16:14]:
So 5 basic tips about style and approach. 1, consider your goals and best and worst case scenario with witness. 2, tailor your tone and level of agreeableness or aggressiveness accordingly. 3, be willing to adjust on the fly. Have they given you permission to be a little bit more aggressive yet? You don’t want to do that in a videotaped depo or trial if everybody Objectively wouldn’t agree, you’ve been given an excuse. You want to try to establish control. This is your depo. You’re in charge, not them, but you don’t have to be a jerk to do it.

Tim Cronin [00:16:48]:
And always be mindful that the deposition can be played or read to the jury or the judge. So be careful of the words you use. What’s the first thing you do, Jon, once you know you have a depo coming up before you start going through exhibits or— and this is the title of it is Brainstorm First of our next section. Right.

Announcer [00:17:07]:
Yeah.

Tim Cronin [00:17:08]:
Before you start making an outline, reviewing materials, having somebody help dig up dirt on the witness, what’s your process?

John Simon [00:17:15]:
I create a, a list of issues. Yeah. A list of topics to cover in the, that I need to cover in the case. And then I see how that witness may be able to or not be able to. Here’s the thing, I wanna know what they’re going to address, but just as important, I wanna know what they’re not going to address.

Tim Cronin [00:17:30]:
Yeah.

John Simon [00:17:31]:
Either because they’ve not been asked to or they don’t feel like they’re competent or capable of addressing it. And, and so I go in thinking, okay, here’s what I want to accomplish in the, in the case. And, you know, you’ve seen some of my outlines. I, I, uh, you know, a lot of our cases have, you know, dozens of, of witnesses and thousands, millions of pages of documents. And so what I do for each witness is I’ll do a little summary of the case, maybe even with terms. Like, I’ll get scientific terms, you know, exposure levels.

Tim Cronin [00:18:02]:
First half page of my outline. I do. I can start doing that too.

John Simon [00:18:05]:
And so what I do is I have 4 or 5 pages usually of a summary of information that I think is going to come up in the depo. But more importantly, the first page of my deposition, up at the top, it says issues.

Tim Cronin [00:18:17]:
Yeah.

John Simon [00:18:17]:
And, and I list what issues I think this expert is going to address, or more importantly, what issues, you know, I need, I need to address in the case with this witness.

Tim Cronin [00:18:27]:
And I think you’re old school, and I, I’m only 43, but I’m a little more old school than my age. I do that brainstorming session with a pen and a notepad without—

John Simon [00:18:38]:
Sure.

Tim Cronin [00:18:38]:
I’m not looking at my computer. I’m sitting there just thinking in silence or with classical music on. And then I usually go talk to whatever colleague I’m working on the case with, whether it’s you, Mary, Kevin, Johnny, Nathan, because talking through some things, they may have ideas or I may develop ideas about what they may, what I may want to accomplish. more of a like verbal processor.

John Simon [00:19:01]:
You know, we, we have, we have cases in Missouri where it’s contributed to cause. And so if an expert on the other side says, I, in my opinion, you know, X didn’t cause, you know, A didn’t cause B, well, we don’t need, you know, all we need them, all we need to show is contributed. And I can tell early on, one of the things I listen for is, were they prepped on that? Yeah. Were they prepped on that distinction, the legal, you know, definition? So a lot of times, you know, one of the issues will be, so obviously you don’t think it was caused, but you’re not able to say it didn’t contribute, right? And, you know, if you can, if an expert is unable to say it didn’t contribute, they can’t say one way or another whether it contributed, it essentially, from a legal standpoint, from a logical legal standpoint, their opinion is unnecessary. It’s just like, it’s not relevant to any issue in the case. And so again, I think through those issues and then I think not just about the issues about that I’m going to cover, But I try to figure out what approach to use with the witness depending on what the witness says. Witness says A, I go B. If the witness says, you know, B, I go C or D.

John Simon [00:20:04]:
Like a flowchart. Right, like a flowchart. Yeah. You can’t just— you have to have a plan. You’ve got to have a plan. And if the— and, and the most important thing, and something you got to— you got to be able to change. You got to be able to take that plan, tear it up, and throw it out the window.

Tim Cronin [00:20:16]:
There are multiple possible timelines you may go down.

John Simon [00:20:19]:
Yeah, it happens rarely, but You know, occasionally you’ll come up with a case where the witness is like, either the lawyer didn’t prep them or they just don’t have any, no, no idea what they were going to say, or they have the wrong file or something. Because I’ve had, you know, cases where the witness is like agreeing with all kinds of things that I thought were contested in the case.

Tim Cronin [00:20:39]:
Saying things I didn’t think they were going to talk about, giving up as much.

John Simon [00:20:42]:
Tell me more. Tell me more about that.

Tim Cronin [00:20:44]:
Do you have anything else to say? Any other thoughts?

John Simon [00:20:48]:
I want to follow that again. Now repeat that for me. You know, so it just, and again, I would do all these war stories, but I had a case where a woman was in an accident, an auto accident, and she was also a diabetic and she was in the ICU and they took her down from the ICU where she was getting, you know, her being fed, I guess, you know, in her, through a tube or whatever. Anyway, well, she goes to a step-down room where she wasn’t being, wasn’t eating. And they were still giving her the insulin. Anyway, she went into a diabetic coma and ended up dying. And the doctor’s orders, the doctor’s orders that we, you know, in the chart were, you know, check her every 3 hours for the, the, you know, the sugar levels and the things that they just didn’t do.

Announcer [00:21:30]:
Yeah.

John Simon [00:21:31]:
You know, they just didn’t do it. And so I show up at the deposition thinking, okay, what outline am I going to use? Is this doctor going to, you know, fall on the sword? Is this doctor going to defend the, you know, the nursing staff. You know, it was— he was in charge.

Tim Cronin [00:21:44]:
Yeah.

John Simon [00:21:44]:
But it seemed like it was a nursing, you know, issue. And he was— his was one of the first depos that I took. Well, I wasn’t going to go in there and spend 40 minutes with, doctor, where did you go to school? And now where did you train? And all this kind of stuff. I went and said, doctor, here, I got this record in front of me, and it’s a concern for me. Was it a concern for you? And he said, yes, it was. And I said, so you wrote this order because that’s what should have been done, right? And it wasn’t done, was it? No, it wasn’t. And doctor, that was below the standard of care. He said, in my book, it certainly was.

John Simon [00:22:11]:
And I said, doctor, thank you very much. Have a nice day. Right. And that was the end of it. That devil was like literally 5 minutes. Had I started out with a more aggressive approach and doctor, you know, and got him pissed off, maybe he wasn’t going to be as, you know, maybe he was, maybe he wasn’t, who knows.

Tim Cronin [00:22:28]:
Your approach completely determined.

John Simon [00:22:30]:
I had an entire outline thinking that he was somehow going to, if he says this, then I’m going this way. So in this, So again, it, you know, those, those that are listening, it’s not a situation— I hope you’re picking up that it’s not a situation where we all, we get in our heads it’s a discovery tool. It’s a discovery tool. Guess what? It’s really not. No, it’s not a discovery tool. It’s a build your case tool, right? Get admissions tool. Depositions make or break your case. And we’re talking about taking a deposition.

John Simon [00:23:01]:
We’ll get into, you know—

Tim Cronin [00:23:02]:
And that’s what I mean, right? Like, I think that phrase, or what I forget who wrote it, Depots of the New Trial, is whether you win or not at trial is, I think, very largely determined by what happened in the depositions. I think it is. You should have been able to box out evidence from being talked about, argued at trial, gotten admissions that give no wiggle room, or you let witnesses run rampant.

John Simon [00:23:30]:
So for the very young lawyers listening to us, When I first started practicing, there was a doctor, an expert in a case, and it was one of my first depositions. And I was very nervous and respectful, and I basically got right to the issue that we were interested in. And it was whether or not this individual was disabled, permanently disabled. That was the real issue. He was hurt.

Tim Cronin [00:23:52]:
Sure.

John Simon [00:23:52]:
Was he disabled? And the defense IME doctor, you know, who had, who had given, you know, literally hundreds of depositions and And I go in and, and I could see he was kind of having fun with me a little bit ’cause he saw I was nervous. And I went in and just thought, you know what, just ask him. And I did. And he said, nah, I think there’s no, there’s no real permanent disability. He should be able to return to work. You know, I got everything we were going to ever hope to get from the defense side.

Tim Cronin [00:24:20]:
You were defending the railroad.

John Simon [00:24:21]:
Yeah, we were defending. We were, I was on the defense side at that time. Right. And so I was done and I took a 5-minute deposition and I was kind of, They gave me a little trouble about it back at the office because I wasn’t more thorough. And I was like, okay, so, you know, what should I have done? Continued aggravating this doctor so he’d really change his opinion? So he’d reverse his opinion. And the other thing too, again, this is not— this is my legal analysis. He got paid a lump sum of some outrageous amount for the deposition, whether it was 5 minutes or whether it was, you know, an hour or 2 hours. And he was very, very happy with me when I said, doctor, we’re done.

John Simon [00:24:54]:
Because he still got, you know, he still got his—

Tim Cronin [00:24:56]:
He’s still got his 5 grand.

John Simon [00:24:57]:
His 5 grand. And it was, you know, 5 minutes. And of course, that’s all that was at issue in the case. That’s the only— we were worried, you know, was he hurt? Yeah.

Announcer [00:25:05]:
Did he—

Tim Cronin [00:25:05]:
And he’s the type of witness that there’s not really other things he can cover. So you don’t have to like—

John Simon [00:25:09]:
Right, right.

Tim Cronin [00:25:09]:
There’s not other things you gotta say.

Announcer [00:25:11]:
Yeah.

John Simon [00:25:11]:
And I thought, well, and, and literally the depo was 4 pages, it was like 4 pages of transcript.

Tim Cronin [00:25:16]:
Yeah.

John Simon [00:25:16]:
And you think about this though, a new brand new lawyer goes out and you’re gonna take a depo of the main expert on the other side, and it’s a new lawyer and you send ’em out there and they come back. And they’ve got a 4-page transcript. I’d be looking at that real close too. But yeah, I had to do some explaining and I had to say, well, this, this is kind of my thought process, right?

Tim Cronin [00:25:32]:
Yeah.

John Simon [00:25:32]:
And maybe it was a bill— hourly billable thing too. I, you know, who knows? But I won’t say that.

Tim Cronin [00:25:37]:
But so 4 basic brainstorming tips. Take time at the outset to think about what you want or need from the depo to make your case better. And we’re gonna talk about the depots aren’t just about getting information, it’s about making your case better. About what facts or admissions you most want to get, about what facts or issues in the case your opponent may have forgotten to prep this witness on, given their, like, field of expertise. And then tip number 2, talk to your colleagues you’re working on the case on, or even somebody who you’re not working on the case with. They may have fresh, creative ideas. Tip 3, make a list or bullet points of what you most hope to accomplish. Basically that if you can check them all off after the depo, you consider it a really good day.

Tim Cronin [00:26:19]:
And not just what you want, but number 4, think about potential risks of broaching a subject with the witness. Sometimes it’s better just to leave an issue alone if you aren’t sure what the answer’s going to be. They’ve said they’re not addressing that topic and you’ve gotten what you need elsewhere. So after you’ve brainstormed, well, I guess part of brainstorming is what’s the reason for the depo? And here’s the biggest difference I think between Good depo takers and bad ones. And we’ve alluded to this. You said it. You are not just there to get information or find out what they know or what they plan to tell the jury. The goal’s not just to fill your day or accumulate hours, plaintiff side or defense side.

Tim Cronin [00:27:02]:
Your goal, the point is not just to go through the motions, ask open-ended questions to see what the person has to say about every issue in the case, everything the opposing expert wants to say unchallenged. The goal and point of every single depo is—

John Simon [00:27:17]:
Advance your case.

Tim Cronin [00:27:18]:
Make your case better.

John Simon [00:27:20]:
Advance your case as a result of that deposition. And I, we say this all the time in the office, you know, we, we complete a depo of a, usually it’s a corporate rep or somebody high up. And as that depo goes, the case goes. That’s it. As the case, as that depo goes, the case goes.

Tim Cronin [00:27:35]:
So 3 basic things for the depo to keep in mind at all times. You’re not just there to go through the motions and get information. You are there to make your case better, to advance the case. Cases are often won and lost in the depositions. So we’re going to take a break there in our, in our deposition tip series. When we come back next time, we’ll get into more details about the nuts and bolts of preparing for the depo, your outline, going through documents, things like that. This has been another episode of The Jury Is Out. I’m Tim Cronin.

John Simon [00:28:04]:
I’m John Simon. We’ll see you next time.

Announcer [00:28:08]:
The Jury Is Out is brought to you by the Simon Law Firm. At the Simon Law Firm, P.C., we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Eric at [email protected]. And subscribe today because the best lawyers never stop learning.

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