Eight times out of ten, the advice of “save it for trial” is flat-out wrong. Nine times out of ten, the person offering that advice has not done as many as ten trials. It is laziness masquerading as sophistication. Nine times out of ten there won’t be any trial. But there will certainly be motions. Or settlement talks. Isn’t it better to have something valuable on the record for those festive occasions? An after-the-depo, self-serving affidavit packs a puny punch. If there is a trial, that thing you were saving might not really be available, or might not be what you thought it was. When you spring that gotcha point during cross-examination of the expert, you might be the one who gets got.
Earlier this week, blogger emeritus Mark Herrmann wrote a column entitled, “The Need for Direct Exams of Your Own Witnesses at Depositions.” It is on the Above the Law blog and can be found here. Read it. Learn it. Live it. We admit that we are completely in the bag for Herrmann, and not only because he is a cofounder of the DDL blog. He is relentlessly insightful. He has a way of making points that are clear and stick to the mind – even if, like ours, that mind is made up of Teflon, the fake butter that greases movie popcorn, and the collected works of Sid and Marty Krofft. If we had to fling one book at a first year lawyer who handed in an especially dismal scrap of work product, it would be Herrmann’s The Curmudgeon’s Guide to Practicing Law. That book is full of useful, concrete advice. (Ask short questions, do not hand in incomprehensible memoranda, treat your secretary with respect, etc.) Plus, now Herrmann is in-house counsel, which confers on him an undeniable aura of infallibility.
We cannot improve on Herrmann’s pellucid prose, and he does a fine job of demolishing the conventional wisdom of reserving all questioning of one’s own witnesses for trial. Even if the witness is young and healthy and apparently cooperative, a lot of things can happen that will make that witness unavailable for trial. There is a whirlwind of employee turnover out there and our clients are not immune from it. Attitudes change. Judicial caprice or cruel logistics might make it not so easy to haul company witnesses to a jurisdiction that exists far away (and maybe back in time). Moreover, wouldn’t you like to have a few good things on the depo videotape? All it takes is a couple of minutes of innocuous praise of company policies, procedures, and culture to create context and blunt the awfulness of a series of damaging admissions.
Further, the process of drafting a direct exam and going over it with the witness is, in itself, a valuable exercise. It helps the witness understand where the safe harbors are and where we ultimately want to be. Even if the full-on direct exam does not end up getting used, preparing for it can help the witness fend off the plaintiff lawyer’s hostile questioning. Every once in a while, you stumble upon exceptionally gifted witnesses who manage to do their own redirect exams. When that happens, we try not to smirk across the table. We do not try very hard, but we’d like to think we rein in our glee at least a little bit.
We’ll share one war story with you, then usher you along to Herrmann. In a mass tort litigation a couple of years ago, the defense team made a point of working up punchy direct exams for all our company witnesses. In addition to correcting unfortunate soundbites that plaintiff attorneys accumulated through indirection or intimidation, we also asked questions that permitted the witness to tell the more complete story of doing good science and pursuing good outcomes. These directs usually lasted 30-45 minutes. As Herrmann suggests/predicts in his piece, the direct exams began to annoy the plaintiff lawyers. After a while, the plaintiff lawyers started to go for the sandbag strategy, saving some of their best zingers for after our direct exams. One of the last witnesses teed up for deposition was a long-time company employee who scared the heck out of us. He was a malcontent who had authored some bizarre documents. He was also located overseas. The odds of our bringing him to trial were about the same as the Breaking Bad finale ending with anything other than blood, drugs, and tears. (The title of the BB finale is an anagram for the word finale, “Felina,” which breaks down into chemical element abbreviations for iron, lithium, and sodium). For whatever reason — call it a minor miracle, or karmic justice, or the fact that anything sounds splendid when uttered with a British accent — the witness held up surprisingly well under furious questioning. And then, for the first time in the case, we did not do a direct examination. The plaintiff lawyers were visibly shocked and disappointed. Their sandbags never got a chance to plunge down on our witness’s noggin. Here was an example of that oft misused phrase (almost as misused as “save it for trial”), the exception that proves the rule.
The rule should be to prepare direct exams of your depo witnesses. Listen to the curmudgeon.