By Sach Oliver
The reason so many attorneys take depositions that provide very little advantage to their clients’ cases is that they typically approach those depositions in search of the wrong thing.
In keeping with the age-old traditions of our profession, they go into depositions in search of information. They ask basic questions to find or verify basic facts. They dutifully jot down what they learn on a yellow legal pad. Then they use what they learn if and when the case goes to trial.
Factual information is important to a client’s case, of course, but there’s something far more valuable when it comes to taking effective depositions: Truth.
The Oliver Law Firm approaches depositions with the facts while in search of truth. In doing so, we make a critical mindset shift that allows us to adopt and execute the Depositions Are Trial methodology that’s proven to help win cases for our clients.
We’ve found that when we depose witnesses with a genuine interest in and pursuit of the truth, our depositions become a vital part of the trial – even if the interview takes place months before we stand in front of a jury.
In a modern jury trial, depositions are an inseparable part of the process. For one thing, some witnesses won’t testify in person at a trial, so the deposition is their testimony. For another thing, some witnesses in a courtroom need gentle reminders or corrections concerning what they said during their deposition. So the deposition holds them accountable to the truth.
Many lawyers stand before a jury armed only with their notes from the legal pad and an official transcript of the deposition. That’s like trying to rope cattle with silly string. It just won’t hold up.
Thus we treat every deposition as if the judge and jury are in the room watching and listening. And just like we would do in a courtroom, we relentlessly work to uncover the truth on behalf of our clients. That’s how depositions go from scribblings on a legal pad and words on a transcript to creative and persuasive video-driven tools for presenting the truth as a compelling, evidence-based story.
When we finish one of our trial depositions, we have a series of 15- to 30-second video clips that tell our client’s story, which is the truth, to the doom of the corporate defendant. That’s the difference. We use those clips, which include a variety of graphics and illustrations, in opening statements, during the trial, and as summaries during our closing. We even use them in pre-trial hearings and in settlement negotiations.
There are several important factors that make this successful, which is why I wrote a book about it and why I regularly teach the methodology at conferences across the country. But here’s an overriding theme: embrace a desire to learn and share the truth with a commitment that’s so strong that it shapes everything about how you take depositions.
For instance, …
The Search for Truth Effects Strategy
One reason our methodologies work over and over is because when you are seeking the truth and you have a system in place to collect the truth by video clips, then the window of truth opens.
That system starts with a strategy for each deposition, not a list of who, what, when, where, and why questions. If you and your team do your jobs well, you should already know the facts before you even take a deposition. So when the camera comes on, you need to have a strategy in place that supports your trial theme and your purpose for deposing the witness.
In other words, you already know what the witness should say based upon the truth, the facts found during your investigation, and what you learned from your focus groups. Your job is to discuss the case with the witness so that they present their part of the story truthfully and in ways that strategically support your client’s case.
The Search for Truth Effects Preparation
Our preparation for depositions starts about six months before we officially interview the witness on the record. Before the deposition is even scheduled, for instance, we start outlining things like the 10 worst things this corporate representative or defendant can say about their own case.
Then we start developing the deposition outline by sequencing it with the mad factors in the case. That’s not hard to do. We hold focus groups and ask people what upsets them the most and what upsets them the second most.
Next we develop the exhibits and visual aids, and then we write the deposition outline.
I like to live with that outline as much as possible prior to the actual deposition. In fact, I typically spend an hour and a half on it each week. It grows into something more and more powerful along the way because it allows me to make solid long-term decisions on behalf of our client.
If you cram the week before or the night before or two days before, you won’t make long-term great decisions for your client. You’ll make short-term decisions about extremely important, extremely urgent aspects of your client’s case. And that’s when you make mistakes that cause irreputable damage.
The Search for Truth Effects Your Interview
Depositions often take on an adversarial tone when the defense witness has a vested interest in protecting themselves or the organization they represent.
If you approach the witness as your enemy, your blood will boil and a harsh vibe comes through in your tone of voice, your body language, and everything else about your communication. The witness, in turn, hunkers down and fights back, and the deposition seldom yields the high-quality fruit you really need.
Instead, I see these witnesses as an opportunity to find the truth. So I look for ways I can connect to them, not as enemies, but as human beings. In most instances, the witness and I have more in common than we realize. So there are ways we can connect while I still seek to find the truth on behalf of our client.
We spend a lot of time, for instance, on what motivates the witness to tell the truth. When we know their core values, their morals, and belief system, we can arrive at a shared understanding of what the truth is and why telling the truth matters. Then we have an opportunity to collect the truth.
None of this is easy, at least not at the beginning. Like most things of value, a Depositions Are Trial mentality involves practice. We train constantly to improve every aspect of the process. But it is worth the effort, because it leads to the truth. And when we find the truth and present it in video-driven depositions, we position our clients for the best possible outcomes.
