Deposition hell: dealing with the poorly mentored defense baby lawyer
My consistently biggest irritation is the defense lawyer who wastes time for the sake of the billable hour. The typical arena for this involves inefficient taking of depositions. What could be done in an hour - takes four. Or worse - the deposition isn’t needed at all. Add to this the specter of the brand new defense attorney who has not been properly mentored. And it is enough to drive me absolutely wild.
There is a defense firm that I don’t particularly like. It has a problem retaining associates. This means there is a constant stream of new JDs going in and out of there. Two weeks ago, they sic’d one on me.
Rewind several months. R - the defense lawyer decides he isn’t ready for an April trial after all. Asks the court for a continuance. Because he hasn’t deposed enough people. In fact, he has only deposed the client and his mother. No one else. Not a single expert. R says he must depose the experts. This isn’t a mistake. This is tactical. The court grants the continuance over my objection.
The expert depositions and that of father are set. We begin with Dave Spanier MD. A rehabilitation medicine physiatrist who did an independent medical exam of the client.
Now, I am not using the term baby lawyer (BL) in a pejorative sense. This is just the best name I can come up with for this particular wide eyed completely out of their league lawyer. Let me also be clear that baby lawyer is not completely at fault - their employer is. The case is huge. I have practiced for 36 years. And they send out a 1 year in practice lawyer to take an expert deposition. With no mentor in tow or evident in any of the preparation.
BL has an outline. It includes some nominal attempt at tailoring. But otherwise it is a total joke. After the expert tells BL that he has done many dozens of depositions - BL still explains the rules of deposition. Asks questions like: have you ever been convicted of a crime. Then for each body part involved (and there are dozens), begins to ask for each: what training or experience have you had in left elbow…lower back…TBI… BL is going to go thru each one until I lose it and say: objection - infantile. The first time I can ever recall making such an objection. It is not nice. But this is intolerable.
The only good thing is that BL is incapable of challenging the expert or doing anything other than have him read his report. Even when the expert tells BL that he has additional opinions, no question follows. So I have to ask at the end to make sure there is full disclosure. As I am asking questions of the expert about technical medical issues which clearly BL does not understand, they try to ask a question. At which point shut them down and explain that they have to wait their turn now.
Next comes deposition of Ted Becker PhD- one of the most respected physical capacity examiners in the country.
Up comes the same outline. He says he’s testified in over 500 depositions. To which BL responds with: If I ask a question that you don’t understand please ask me to rephrase it. As if he does not already know. BL also asks if he’s ever filed bankruptcy or committed a crime.
Here’s the thing. Dr. B’s been deposed at least 500 times. BL’s firm clearly has deposed him before. All BL had to do was pull up an old transcript to bypass all of this. Instead, BL spends 50 minutes. Fifty excruciating unnecessary minutes asking about Dr. B’s background. Including this jewel. Dr. B had worked on the Olympics swim team for decades. BL wants to know which swim stroke he liked the best.
Lisa is listening to the dep to check out BL based on my prior complaints. BL says to Dr. B: let’s go to the pictures. What is that blue thing on the ground. Lisa texts me: a yoga mat. Dr. B says: a yoga mat. BL says: does it interfere with his balance. Dr. B:no. I am trying not to pull my hair out.
Two wasted expert depositions later I’ve had it. Write a letter to her boss:
R: You obtained a continuance on the basis of greatly needing to take the depositions of the experts. I am in the midst of the second deposition of an expert in this case which you have inexplicably assigned to BL, a first year lawyer who while game to try should not be doing so without a mentor.
I am fine with you not being able to challenge the merits of the experts or their bases due to total lack of experience of the examiner. But I am also extremely irritated that the case was continued due to a ruse that you actually needed to learn something from these depositions to prepare for trial.
R does not respond. Which leads to deposition number 3. Dad.
Mom and dad have supported the client fully for two years. Dad is a successful IT entrepreneur with multiple business endeavors including a primary partnership. BL continuing the string of being tone deaf and unwilling to deviate from the untailored script asks dad if he has been on public assistance. BL then asks for the name of dad’s business partner. I ask what is the relevance or how can it possibly lead to the admission of relevant evidence. (It is completely irrelevant) BL does not respond and tries to shut me down. I repeat my request and BL is talking and then…wait for it… this is the best part…
BL instructs the court reporter to mute me.
That’s right. If I wasn’t so irritated would be laughing. Nice try. The court reporter is no dummy. She knows she can’t do that. BL says she’s taking a 10 minute break. Cuts mic and blanks screen. Comes back after getting advice. Says: are you his lawyer. I say: today I am. She starts to lecture me that I can’t do anything to instruct or advise him unless he’s my client. Then asks if he owns a car. (remember this is the dad who was not involved in the incident and neither was his car). I let that slide. BL then says: what is the model of the car. I ask for how this is possibly relevant or may lead to the admission of relevant evidence. BL wants to fight on this. Dad says he’s not going to answer. She moves on.
All I can do is suffer through the incompetence of all of this. R and the defense team are getting nothing out of these depositions that will be usable. But they are going thru the motions to justify getting a trial continuance and their ever increasing billable hours.
These are my tips on how to mentor a brand new lawyer re depositions so they will never be non-mentored like this defense BL:
let them attend depositions for at least 3 months before they take any.
let them assist in deposition before allowing them to take one.
show them how to create deposition outlines.
don’t let them use preformatted deposition outlines in complex cases without making adjustments.
for medical depositions - require them to first understand the medicine. all of the essential impacted body parts should be looked up. all medical procedures looked up. anatomy tools should be used.
review the deposition outlines intended to be used before each deposition.
make sure the deposition outlines include: the reason that the deposition is being taken. And make sure that mission is understood.
do not allow them to attend the depositions without a mentor for the first many months. For each new type of deposition - like the first medical deposition, first expert deposition - the mentor should attend.
send the new lawyer to deposition school through NITA (plaintiff lawyers through AAJ).
teach them what an exhibit is, how to mark it and use it.
tell them they cannot mute opposing counsel no matter how enticing that idea may be.
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