Shane Read is the author of Winning at Deposition, which won the highest publication award for professional excellence from the Association for Continuing Legal Education.
April 15, 2015 – A deposition is a powerful discovery tool. But attorneys can squander the opportunity without proper preparation and the tools to unravel witnesses. At the same time, attorneys who represent witnesses must prepare them for what’s coming.
As Abraham Lincoln once said, “give me six hours to chop down a tree and I will spend the first four sharpening the axe.” Best-selling author and attorney Shane Read says lawyers involved in depositions should heed Lincoln’s wisdom here. Preparation is key.
And Shane Read should know. He wrote the book on winning at depositions. No, really. He wrote the 2013 book, Winning at Deposition, which won the highest publication award for professional excellence from the Association for Continuing Legal Education.
“Before you ever get into a deposition, attorneys need to know what their bottom-line message is, the heart of their case. And if they go into a deposition without knowing that, they’ll never get the answers they need from the witness,” said Read, who has taken and analyzed countless depositions over the course of his legal career.
Sounds like common sense. But many lawyers don’t do it, says Read, an adjunct law professor at Southern Methodist University’s Dedman School of Law. “Many lawyers will take a long deposition, but they get rambling answers that are not very useful.”
Through seminars, Read teaches lawyers crucial tips to conduct successful depositions using real cases and video deposition clips from high-profile cases. For instance, Read uses the Bill Gates deposition as a teaching tool.
“You can see one of the best civil attorneys deposing one of the smartest men in the world,” Read said. “But we also look at mistakes and how to correct them.”
Don’t Miss Shane Read’s Companion Seminar, “Winning at Trial”
On May 8, Read will give a seminar on trial skills, based on the other award-winning book he wrote in 2008, Winning at Trial, also a State Bar PINNACLE event.
On May 7 in Milwaukee, Read will teach a full-day, live seminar on depositions, called “Winning at Deposition,” sponsored by State Bar of Wisconsin PINNACLE™.
As a preview, here are some of Read’s tips when deposing and representing witnesses in depositions.
Know the case, and know your opponent’s case. “Before you ever get into a deposition, an attorney needs to know what the case is all about. They have to know what their bottom-line message is. If they go into a deposition without knowing that, they’ll never get the answers they need from the deposition.”
Know the law. “Most attorneys have a pretty good idea of what facts they need to win at summary judgment or defeat a summary judgment motion. But that’s not good enough. They need to know the facts they need to prove their claim.”
Listen. “The most common mistake attorneys make, other than being unorganized, is they don’t listen to the answers. They don’t realize that the witness hasn’t really answered the question they are asking.”
Establish control over experts. “Expert witnesses can sense whether the attorney is going to find the weaknesses in their opinions. In the seminar, I teach how to defeat the expert witness, and I go through some simple steps to do that. For instance, lawyers should attack their assumptions. Every expert has made assumptions about a case. If you can change those assumptions, they’ll often come to a different opinion.”
Prepare your witness. “Most attorneys probably spend 30 or 45 minutes preparing their witness before the deposition. They tell them to simply tell the truth and they’ll be fine. Attorneys believe they can correct mistakes later if a witness doesn’t do well, and it really doesn’t matter. That’s not the case because over 90 percent of cases settle. Attorneys should treat a deposition like trial testimony. The worst thing you can do is have a witness go into a deposition, see a document for the first time and get questioned about it. Because then, the opposing lawyer has all the power.”
Play devil’s advocate. “Look at the case from the other side. A lot of attorneys never take the time to do that. By doing that you can find out what the important documents are, and learn the important questions the opposing attorney will ask.”
Analyze the deposition. “Many attorneys don’t take the time to edit the deposition down to its most important points. Once the deposition is over, find three most important answers and use those at trial as opposed to trying to find 10 pretty good ones. Narrow it down to the three best points you can make.”
Don’t get lost in the details. Mark Twain said, ‘it’s easier to manufacture seven facts than one emotion.’ Lawyers have to make sure that they can present their case in a compelling way. The emotional aspects can get lost in the factual details.”
Overcome obstacles. “I teach attorneys how to frame a question so they can get the answer they need to win a case, including what to do when a witness won’t answer the question. I also go through specific examples of how to deal with an obnoxious opposing counsel who is trying to interrupt your ability to get the answers you need. In those circumstances, the key is to ask a short question with one fact, and repeat the question until the witness answers it. If the attorney representing the witness is instructing the witness not to answer the question, there are other steps you can take to avoid having to compel an answer through court order.”
More About the Shane Read Seminars, May 7-8
Read’s seminar “Winning at Deposition” is Thursday, May 7 at the Radisson Milwaukee West. The cost is $279 for State Bar members. Earn 7 CLE credits (1 EPR). The program will be available via live webcast May 7, and webcast replay June 2 and June 19. Register now.
Read’s seminar “Winning at Trial” is Friday, May 8 at the Radisson Milwaukee West. The cost is $279 for State Bar members. Earn 7 CLE credits (1 EPR). The program will be available via live webcast May 7, and webcast replay June 2 and June 19. Register now.
Register for both seminars and save $150.