For My Fellow Younger Attorneys Facing a Multitude of Depositions: A Deposition Blueprint and Roadmap – Part II: Taking Depositions
This article is the second, and final, part of a two-part series that is meant to provide some guidance, suggestions, and insights for younger attorneys that have little or no deposition experience that are tasked with leading the brigade for their client(s) in taking and defending an array of depositions. Think of this as a blueprint and roadmap for what to expect based on my recent experience as a younger attorney taking around 20 depositions in a two-month span. The first part of this series focused on maintaining one’s personal well-being during this strenuous time, while this article will emphasize substantive means and methods to prepare for the task at hand.
In January and February 2020, I deposed a multitude of experts in a complex, construction defect matter, which correspondingly entailed evaluation of each expert’s report—sometimes quite lengthy—in preparation of same. During this time, I also deposed several fact witnesses in another large, complex case. In total, I took around 20 depositions during a two-month span. By any measure, this was quite the responsibility bestowed – on behalf of the respective clients, my firm, and my supervising partner. With this responsibility and challenge, there are many stressors that a younger attorney will encounter, and while I “figured it out” along the way, I wish I had a blueprint for what to expect during this period, and providing a few insights to help younger attorneys similarly situated in taking a plethora of depositions and handling (and surviving) same is my primary aim for this series of articles.
Depositions. For younger attorneys that have not previously taken or defended depositions, the word alone can draw ire and fear. I think this is partly because the law school curriculum—vis-à-vis, the lack of required course on this key practice area—inadequately prepares students for this undertaking. The law school curriculum is great for erudition and teaching minds to “think like a lawyer,” but there are gaps when it comes to preparing law students for the actual practice of law. The taking and defending of depositions is no exception. While everyone’s experiences will be unique, I believe there are certain commonalities that transcend practice area and the individual attorney
The taking of depositions is an expectation when you practice in the arena of complex civil litigation. But what about when the circumstances dictate nearly a deposition a day over a two-month span? And managing a full caseload on top of that? Well, admittedly, as someone who has recently faced this gauntlet, there are ubiquitous challenges.
As a matter of substance, this daunting undertaking may be unchartered territory and one looming, prescient question will inevitably arise: Where do I begin!?
While the outline below is not meant to be all-encompassing, and does not constitute legal advice, here are some suggestions on how to approach this challenging interval:
On the administrative front, put your supervising partner(s) on notice of the back-to-back-to-back nature of your schedule over an elongated period well in advance of the depositions. Create a list of all your cases and try to anticipate as many actions that will or may come up over this interval and prioritize what to do before the depositions commence, what you can do in the mornings and evenings during the deposition period, and what items may need to be delegated. If you are lucky to have an entrusted team around you, delegate certain tasks to other attorneys, paralegals, or your assistant, if feasible. Your team and firm will be more than understanding given the significant restraints on your schedule.
To quote Fred Rogers, “Look for the helpers. You will always find people who are helping.” While attorneys are busy and time is a valuable commodity, if you seek help, you can usually find it. While I understand the natural hesitancy to disturb others around you, you will need to leave any personal apprehensions at the door and take initiative for your client and ask questions to more experienced attorneys if they arise so that you can be successful for your client. If taking up another attorney’s time, compile a list of questions in advance and do not do this in a piecemeal fashion in which you are asking a question every hour or so.
Substantively, in a case with a vast document universe in the hundreds of thousands or millions, there needs to be an effective organizing methodology in place to find documents in an efficient and expeditious manner. Have the documents organized in a manner that will work for you. Need documents pertaining to a given subject? You should know where to look. Ensuring this is well in place before depositions commence will be immensely beneficial as you prepare for depositions and, ultimately, trial.
Moreover, the utilization of your own client’s expert, particularly in technical or hyper-technical areas, is incredibly beneficial when formulating your deposition outline and questions. This is particularly true where there are nuanced areas that the expert may be better equipped to teach and can impart such information onto you as the attorney. This will not only aid in your own understanding of the technical and hyper-technical areas of your case—my practice is mostly construction related—but aid in drafting deposition questions for the opposing side’s experts. Your client’s expert may even have some questions of his own that he would like asked and answered by the deponent. Utilizing own expert as a valuable tool and asset, and his or her prowess can be utilized during fact witness depositions, too.
With expert reports and expert depositions, you are peeling back layers of an onion to get to the bottom of the expert’s opinion and the foundational origins of such opinion, including the expert’s scientific methods and testing. Don’t accept the answer “based on my years of experience” as a suitable answer because it is not – dig deeper, much deeper. What underlies those “years of experience”? What methodologies were used? How did you arrive at your conclusions? With expert reports, often there is so much left unsaid—particularly about methods and precise methods on how an opinion was arrived at—that needs to be fleshed out during a deposition. Have Daubert Motions in mind. Getting to the bottom of their opinion and the underlying reasons will be beneficial—particularly if the expert cannot detail their methodology and insists on “in my years of experience”—for facilitating a Daubert Motion. In short, keep Daubert Motions in mind when deposing experts.
Remember that experts, more experienced attorneys, and even members of the judiciary are, at the end of the day, just people with families and friends just like you. As much as possible, try not to overthink it or let your relative inexperience creep into your thoughts. Our biggest critic is ourselves.
In writing this article, and the previous article in this series, I hope to have imparted not only an outline, and blueprint of sorts of what to expect during this interval for my fellow younger attorneys, but also, more intimately, a level of comfort. You are a better lawyer than you realize, and if you set forth a plan that suits your needs and situation, you will be successful in this endeavor and learn and grow from the experience. I certainly have.
About the Author: Nathan M. Gallinat is an insurance law and construction defect litigation attorney at the Phoenix law firm of Jaburg Wilk. He primarily assists clients in the defense of complex multi-party construction related litigation.