It takes a lot to get there, but when I get to depose a "Legal Specialist" or corporate officer of Midland I recognize a golden opportunity to get an education in Midland 101. You see behind the curtain. Prior to that, Midland wants their proof based on false assignments and non-specific bills of debt sales. It is interesting how important these Affidavits and Legal Specialists are to Midland until I get a hold of them. Especially when we ask to see the electronic records the Affiant supposedly depends upon until we learn she did not. Separate from the Court Rules on how and when you must take the deposition that lawyers must follow, there are no rules against being creative when deposing a witness.
The two biggest things I have going for me are (1) my constant curiosity as to why people do what they do and the company processes that they must follow and (2) I am totally prepared for every possible outcome in that deposition. Curiosity and hard work are keys to success in any line of work but are especially rewarding here. I tell my kids, "The harder you work, the luckier you get." I need all the luck I can get so I spend days getting ready for a deposition. I know my questions and dep outline by heart before I enter the conference room and meet the witness. The best advice I could give is to be yourself. Bring that "you" to the game that they can never prepare for in the deposition or anywhere else. Unless you are dumb enough to create a website displaying your secrets.
Here is how I get ready for a big deposition (they are all big). By all means, remember how you do your thing and apply accordingly.
1. Have specific goals in mind and write them down. Works for business planning and similarly, focuses your brain when deposing someone. It is hard enough to break down the resistance of the witness if neither one of you knows where you are going. Plan your work, then work your plan. (Look for me to totally contradict this later on).
2. Do research consistent with those goals you have set and have questions based on that research. The great thing about being older is that my generation still understands the value of privacy. But the people we depose let it all hang out online. When I can, I will try to ask about a picture I find of the deponent partying, beer bonging it or doing stupid stuff just so they know, I know. People do some real dumb stuff online for approval but in the offline world, it does not look like a smart decision. I will ask the deponent about the pictures or situation. There is never a good answer that fits into the case but it is sure way to take control of a deposition. Use those resources online and the privacy they don't value against the deponent. Midland or MCM is deep into my client's credit reports and scarring them up. Fair play for me to dig a little deep on Midland too with things from the public view. I will never forget this 10 second Vine I found of a Bank attorney I was deposing. He filmed himself screaming at the top of his lungs into his phone after the Pirates won a meaningless game. (Note to self, all Pirates games are meaningless.) Anyway, I had my kids set it up on a loop on my Ipad and just kept playing it while I slowly set up for the deposition. This was the bank's trial witness. The guy learned who I was just from that move and he actually shook a little when he spoke. We settled that case. That ten seconds cost the bank more money than I expected. So, put the work in and then use your efforts to win the case. While it is always about leveling the playing field for your client against a big corporation, sometimes, you can't spell deponent without the letters, d.o.p.e.
3. PARAMOUNT that you know the case better than the person you are questioning and better than their attorney. The actual Midland attorneys don't seem to have a clue about their cases as they have too many and most default after 21 days. The Midland attorneys have it easy especially with judges that accept non-specific paperwork as proof. Why should they care or work the file? But I do. The outside firms that Midland hires on my cases sometimes have three or four attorneys on one case. You know why they use that many without my saying it here and that is on Midland. But either way, they never know the case better than me. They are just not as motivated as me to do a good job.
4. Two ears, one mouth. In your deposition of the Midland Mook, Listen, Listen and then Listen some more. The deponent can only take so much "dep prep from her own rep" before falling into the same pattern we all live by: we all like to talk. So, they will eventually slip and when I hear something good, I am not married to the prepared questions. I feel confident to go off script when it helps my case. An opening always presents itself-so I am open and flexible when opportunity knocks. And it will. It is not a lucky break either. It is your hard work paying off.
5. Watch out for a common disease called "greedy attorney syndrome." I am not talking about attorney fees here. We all have "greedy attorney syndrome." The deponent says something great for the case and their attorney does not bat an eye, hell he barely has a pulse. You can't believe the great admission you just obtained. So what do you do? That's right, you ask the same question again for the same admission. Now, maybe at this point both the deponent and the attorney are clueless until Mr. Greedy shows up and you ask the same question again. Rookie move. Get the admission then leave it alone. Now, I know there are very few victories in law and lots of down days. You are just being human in seeking some positive recognition of your work and skill eliciting the great responses. But like driving on New Years eve, know when to say when. Got a good statement from the witness? Leave the freaking thing alone and let opposing counsel continue her nap. Then, immediately change the subject and move on to another area. Don't give them a chance to change their tune or rehab on cross examination because you kept asking the same question. When you get the admit, you must quit! Hells yeah.
6. Read over old transcripts. If the witness has been around enough, they are out there. You can pick up how they speak, defend themselves and what makes them give out information. In your deposition of the witness, flatter them and refer to all their other cases you have read with their involvement. This is the "Deponent Dance." Make them feel good and special that an attorney is reading their old stuff. I think the facebook kids call it "following me." Say nice things then go for the gold when their guard is down and their ego is up. If your research revels an annoying tick or a certain way they answer questions, key on that. I just did a deposition where my transcript research picked up a response type of the witness-he was from a younger generation, the one that starts every sentence with "So" and then launches in to their response. Everything is "So" at the beginning of every sentence. So, what is wrong with the way someone uses the word "So" at the beginning of every sentence, you ask? The expression drives me nuts and I am old. And get off my lawn, you kids. So, right before his deposition, I told him I read all his previous depositions (flattery) and asked him if he was aware of his "So," tick and inferred he sounded uneducated (hey, you have to be a little mean and take control, so live with it). It bothered him so much that during the dep, he kept checking himself before he answered my questions. He gave me everything I wanted and spent most of the time trying to avoid the "So." His admissions were so good I use that same transcript today to win summary motions against his company. Can't tell you the company name but ATM would be good. Remember, you have to be a little mean to help your case when you consider they are usually lying their ass off to you. Stay within the rules.
7. Wardrobe malfunction. I severely dress down to most depositions between April and October in my Northern deps. Jeans and a tee-shirt the other months. Hey, when I am sitting in a deposition working hard to force someone to say something their attorney tells them not to, I don't want to have to worry about my tie. I work too hard to be uncomfortable. You also want the other side to notice their own uncomfortable suit and tie. I see a guy who keeps his jacket on during the dep and I know two things: He is too buttoned up and more concerned about appearances than his client's well being and two, he probably sweats a lot. Either way, there is a psychology at work there and you have to let them know that perhaps, you might be a little off. Deponents have told me later on that it chilled them out a little and separated me from their own attorney such that they liked me more.
8. While you are setting up, you put food and drink on the table and let the deponent know you are in for the long run. Have everything marked offf and show your preparation. You can see them watching you. Know your case better than the deponent does. Depositions have more Perry Mason moments than trials if you have done the work.
9. Writing the questions you have for the witness is a form of studying. This again is born out of curiosity. You should have some knowledge or indication from your preparation how the other attorney has prepared their witness and what the they have told them. I pretend to be the attorney for the other side and work on the holes of the case. Now I know where to go and how they will try to stop me.
10. My Script: A Script is a good way to organize your thoughts but again, I will go off the script if I hit an information vein. Depositions are like playing blackjack: you can win all of your money in five minutes if you can recognize when the cards are hot. So (proper use of "so"), be prepared to go off script the first chance you get. I have finished three hour deps and not got to most of my questions because my hard work took over the minute the deponent let me in on his thoughts. BTW: if they answer questions with prepared sound bites from their attorney, break down why they are saying those things. If it is not their own words, that preparation goes away fast when forced to defend something they don't normally believe.
11. Try to have fun (civilly and appropriately) with their attorney and mess with other side the way the deponent would if they were as ill bred and badly mannered as me. People would love to tell attorneys a thing or two but most can't because they are polite. Then you do that when the other attorney gets a little rough. Even the hostile witness likes you if they perceive you "winning" a skirmish with their own attorney. Preparation, not brains is key. It is about winning over the deponent if he can be won over to get the admissions you need. You have read his other deps, you know all about him and you seem interested in his job and life. The deponent's attorney seems bored and acts like it is another boring case. If I see a deponent and their attorney give off any signals of incompatibility (usually their attorney is a stiff or does not interact well with his client that he met for the first time) I pounce. Something as simple as checking in at the security desk when you write your name at the sign in sheet at the deposition can be a clue. I see the deponent signed in about the same time as the attorney and now I am signing in fifteen minutes later, there is a good chance these two have not built up a bond or had enough time to prepare. Again, don't be married to a script. Also, trust your human instincts-powerful stuff.
12. Follow the prepared script. The same thing I yell at other attorneys for relying upon too much during their deps of my client, I use too. But Parker, how about taking your own advice? Well (or So) here is how I use my script. (Again, this is a personal approach I use.) The writing and preparation of the script is a major part of my preparation and should be used as a suggestion towards meeting your goals. You can get what you want in 30 minutes if you really know your case because of your preparation. But again, don't be married to a script's cadence and miss out on something special because you are off to the next question. Ask the prepared question and follow up on the Answer and go as far with it as you want. The court reporter is taking everything down and you can always get back to your script if you get lost. Never forget: The gems or valuable admissions come from Answers not the Questions. Don't get wrapped up in your own brilliance on paper.
13. Do your own work. There are no short cuts to success in a deposition. I have noticed (and some attorneys admit to this to brag how important they are) that a junior associate or paralegal prepares the deposition attorney's questions for them. They lose valuable learning and research time and hurt their client's case. I sit down and visualize having a conversation with the witness and ask the questions and then write down anything that comes into my head. I would also recommend not half assing it and take a lot of time to do the work without interruptions. I take a couple of days, maybe more. It is how I am wired. Other guys are smarter than me blah blah blah. But I know myself and respect the psychology of it all. I have to feel confident and hard work is the only way for me."The harder you work, the luckier you get" and it is true. But you have to put a ton of work in to make people tell you things they don't want to. And don't wake the other attorney when you do it.
(REMEMBER, NONE OF THIS IS LEGAL ADVICE. THIS IS HOW I DO THINGS IN MY CASES)
How do you protect your client from screwing up their own case by saying the wrong thing in their own deposition? They are nervous, perhaps scared and justifiably afraid of what the other attorney is going to make them say. They have never been deposed before. The key then is to recognize that we are all afraid of the unknown. The best way to help your client is to eliminate the unknown, show them what to expect and how to answer truthfully. Less unknown, less uncertain, greater comfort. I like to use the Rule of Five. "The Five" arms my client with enormous comfort and fun tools to mess with the attorney who they originally thought would be messing with them. You are empowering your client to prepare to succeed.
The Rule of Five is another great idea born out of a million of my mistakes. The Rule of Five is set in the premise that less is less and that more time in front of the deposing attorney is bad for the case. We have the client hold up their hand and touch their thumb and say, "No or Yes." They touch their index finger and say, "Do not Guess." They then hold the other fingers and say, "Five words or less." So the Rule of Five is " No or Yes, Do Not Guess, Five Words or Less." Using the hand is teachable prop for the client to remember. Most people have hands but feet work too. The clients are instructed to not answer any question until five seconds have passed. Their answers are then concise and hopefully, less than five words. Less words, less oxygen for the deposing attorney and less time to damage the case. Time is the enemy for someone that is not normally in depositions.
Important. No matter what happens or how the client perceives something or interprets a question it is paramount (love that word) that they always tell the truth. Second, they should never try to figure out what the attorney is thinking based on what is asked. The attorney barely knows why he is asking the question. The client is instructed from the very beginning of the preparation that it is game time and they are to practice like they play. The Rule of Five is the only way to answer any question the attorney has. You must practice this in mock depositions and scold your client when they trip up. Positive feedback is good when the light turns on. On the day of the dep, they must use the Rule of Five in their life that day to answer any question. The Truth will set you free and the Rule of Five will set you free from the deposition faster.
Important too. The key is to protect your client. The other key is to protect your client's story. If they know what your client is going to say about the case before the trial, the other side will have a way to combat that testimony. However, the Rule of Five places a premium on not saying anything and that includes your story or position. If the other sides hears your version of events for the first time at trial, they are in a world of hurt. Cases and bees dies after one sting. My client's story can only hurt once and it is wasted in a deposition. The Rule of Five protects the client and her side of the case.
"No or Yes, do not guess, five words or less."
Less is less. No matter what the question asked, if it requires a No or Yes, answer No or Yes. Nothing else. Attorneys live off words and words are oxygen especially if the attorney is just looking to bill. No or Yes with nothing more reduces the time in front of the other attorney as there is nothing to follow up on. The attorney will try to press for more, but the client already answered. When the client has really adopted the Rule of Five, it is a great thing to watch. I have had attorneys ask me (in front of the client usually), "what's wrong with your client?" or "Why isn't she answering the questions I ask?" She is, just not the way the attorney expected. How do they prepare to rebut your client's story or show them to be untruthful when there is nothing in the transcript? I remember one attorney who was so frustrated at the answers he was not getting (he was a real bully) that he kept banging the table every time he hated the answer. He finally just ended the deposition and stormed out. When it works, its a cool thing to combat the client stress and protect their case. No or Yes says "No" to time wasting and reduces the stress and exposure.
" Do not Guess." Simple enough but most humans are bred to be accommodating and helpful. We will help a stranger who asks for help, directions or our view on a restaurant. It is our nature to answer requests for assistance and be accommodating with information. Not my clients, Bro. They are instructed not to guess and for the hour or so they are in front of the other attorney, be as emotional as a robot and talk like a computer. They are not there to help the other side my client's testimony in a future summary motion. I train my client that if she does not know the answer, the are to say "I don't know." If they knew it but forget say, " I don't recall or I forgot." Always be truthful but don't volunteer anything by guessing. The other attorney will push but she is on a short string. The client does not know. Accommodating answers kill the case faster than you can say "summary motion."
That word is poison. My clients are tasked with recognizing poison words. If they start an answer with "I think" "Maybe" or "Possibly" and even "If I had to guess" they are being accommodating and probably screwing up the case. I tell them to turn off the accommodating button. Avoid a mess, do not guess.
Side note: Make sure you client knows to wait at least five seconds before answering any question,even easy stuff. I tell the client, the more time you take to answer, the less time you are in the deposition. Doesn't sound right does it? But a concise, short answer gives the deposing attorney nothing to follow up on. Again, be robots and sound like a computer. Short answers with no concern for what the other attorney wants rules the day.
Other good note. There is no rule about where the client has to look in a deposition. Attorneys use non-verbal actions to push through a question or give the client the stink eye to intimidate them to answer. But the stink eye does not show up on the transcript-only words do. I tell the client to not look at the attorney. Just speak to the Court reporter or look down. An attorney that says he does not use his status to intimidate a deponent is not telling the truth. I have my client look at the nice court reporter or even his hands to remember the Five. You want your client to be the one in control and feel empowered.
"Five words or Less." This is tough one. At some point, there is going to be the need for the client to actually answer something with words other than no or yes or a non-guess. What do you do? I tell them to answer in five words or less. You practice with the client and show them that "I have a blue car out in the parking lot" should be "Chevy Truck" "Car" or just Truck. Five words or less. The "five second rule" is not just about giving yourself permission to eat that potato chip you dropped on the floor. They must take at least five seconds before they answer. It is a struggle for the client but I tell them that the court transcript does not pick up how long an answer takes. Just the answer. Take your time to answer with as few words as possible. It is tough and a real challenge but practice helps. Less words, less oxygen and less admissions. I have had other attorneys watch the struggle and assume the client is challenged in some other way because the client will use disjointed words to answer or sound weird and often, the attorney will back off to avoid bullying the poor guy. But, it is your client being a genius and is a beautiful thing to watch when it bothers the other attorney. I tell the client to take that magical five seconds or five minutes if you like but reduce your answer to the lowest amount of words possible. Sound like a robot. Drives the deposing attorneys nuts who run out of questions and have nothing to show when their clients ask them for a report.
Side note. Sometimes you may want the client to talk more than five words because they are asked about damages. It is a tough call to me make. Do you have them break the Rule of Five and possibly fall back into a bad habits of talking the guys ear off or limit the discussion on how your client was hurt. My usual call is not to allow the break in the routine and save the whole dep from contamination by the accommodation disease.
Other Side Note. Also, adding to their comfort, you should tell the client to dress in the thing that makes them the most comfortable and be themselves. At least themselves as a robot.
Other great side note. Advise the client that when the dep is done, it is time to head for zee hills. Don't wait for a review, don't ask about the Pirates score, don't do nothing but run as fast as you can away from the conference room. Once the attorney says she has no more questions, my clients are trained to know to get the hell out of there. I have seen the opposite reaction cause great problems. A dep is done, client hangs around and the attorney remembers she missed something and boom, more wasted time and your case is in jeopardy again. Time is a client's enemy in a deposition. Feetz don't fail me now.
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