Deposition Trials and Tribulations

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deposition-conference-room-in-Denver

As a young attorney, preparing for a deposition can be daunting. You’re not only charged with learning the facts of the case, but you must also learn the rules of a deposition and how to sharpen your style. Moreover, you are to discover knew information about the case or things you did not know prior to the deposition — after all this is the purpose of a deposition. With that said, I am all for any tips that I can learn to improve my deposition skills. In civil practice, learning to take a good deposition is invaluable. I take three or more depositions a week and learn a valuable lesson each time.

For instance, early on I remember hearing experienced attorneys say, “strike that” mid question. I never did it, but I thought it might be an opportunity to create a cleaner transcript. Could it be that I could use this trick to have the reporter erase what was said to create a more easily read and understood question in the transcript. It was a practice that I immediately put into action, until I reviewed the transcript of my next deposition and realized that “strike that” did absolutely nothing. It simply added a few additional words into the transcript. This is just one of many lessons that I’ve learned in my short history of conducting depositions.

This attorney shares a number of her “teachable moments” during her young adolescent attorney years. A time period quite familiar.

Thousands of young attorneys will sit down to take their first deposition every year the same way I did, with roughly the same amount of dread and exactly the same amount of training.

lot and none whatsoever.

So that someone might benefit from my own painful experience more than twenty-five years ago, I give you my earliest deposition mistakes.

See, On the Job Deposition Training and for a lighter note see CNN’s article highlighting Justin Beiber’s 2014 deposition, Beiber Don’t Argue With the Lawyers.

 

Typography Tips for Lawyers

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I recently came across this article and thought it was an excellent overview of typography tips for young attorneys. Quite often, we are consumed with the substance of our writings and, while important, the presentation can be equally as essential. The excerpt below is from 10 Takeaways from Typography for Lawyers written by Matthew Salzwedel. I found number 1 of particular interest, as I previously posted an article on the same topic, Are you Team One Space or Two? Enjoy!

1. Use Only One Space Between Sentences

Butterick says you have no choice when deciding how many spaces to include after a sentence-ending period (indeed, after any punctuation mark): one space. He cites multiple typography authorities, including the Chicago Manual of Style, Garner’s The Redbook: A Manual on Legal Style (Section 4.12), and the 7th Circuit’s “Requirements and Suggestions for Typography in Briefs and Other Papers” (which Sam reviewed in “Legal Writing: Make Your Writing Easier to Read“). True, other writers have objected to the historical foundation of the one-space rule, but I’ve found no good authority (including the local rules of the states and many federal courts to which I’m admitted) that you should include two spaces after a sentence-ending period in court documents.

2. Never Underline

“Now that we don’t use typewriters, there’s no need to underline.”

Butterick also advises never to underline text for emphasis or otherwise. Like two spaces after a sentence-ending period, underlining is a holdover from the typewriter era, which, as many have forgotten (or in my case never knew) didn’t allow for bold or italics. On a typewriter, underlining was the only way to emphasize text. Now that we don’t use typewriters, there’s no need to underline.

In my former litigation practice, I occasionally underlined text to emphasize particular words because The Bluebook: A Uniform System of Citation requires case names to be italicized and I wanted to distinguish between the two. My view at that time was that underlining allowed to reader to distinguish easily between italicized case names and the text I wanted to emphasize. But I erred in doing so. Given how ugly and blunt underlining can be, start using italics and bold to emphasize any text that deserves to stand out from the rest.

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Surveillance Videos: When to Hold and When to Fold?

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BC-Injury-Law-Video-SurveillancePennsylvania law is well settled on the relevancy of surveillance videos and them being subject to discovery. What is not so clear is when the surveillance must be disclosed or produced. It is important to note that both the disclosing and producing of the surveillance are two separate events. The defense does not have to produce surveillance videos at the same time that they disclose their existence; thus, the question becomes when must the two events take place?

In addressing this matter, Pennsylvania Court’s strive to strike a balance. As stated in the PA Surveillance Compendium, “Pennsylvania Courts have recognized the competing interests at play when it comes to the issue of video surveillance—for Plaintiffs, it is securing a trial free from surprise, and for Defendants, it is the potential to expose fraud or exaggerated claims of injury.”

“Under the law today, you do not need to disclose the existence of surveillance footage until (1) the Plaintiff requests video surveillance in discovery, and (2) the deposition of the surveilled individual is taken. Morganti v. Ace Tire & Parts, Inc., 70 Pa. D. & C. 4th 1 (Common Pleas 2004) (Wettick, J.). You may wait until after Plaintiff has been deposed to disclose the existence of the surveillance video to Plaintiff. This is true even if Plaintiff propounds discovery upon Defendant months before his or her deposition is taken and specifically requests Defendant to identify and produce any and all surveillance videos of Plaintiff. This Rule preserves the impeachment value of the surveillance, while giving the Plaintiff time to test the integrity of the impeachment evidence.” Id.

In other words, prior to the plaintiff’s deposition, the defense may hold the surveillance in an attempt to secure contradictory testimony. Afterwards, the defense must produce the surveillance in a timely matter.

Other great related sources of information:

– Must surveillance videos be disclosed prior to trial if only used for impeachment purposes

Pennsylvania Surveillance Compendium of Law

Civ Pro 101: “No Trial By Ambush”

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paper glasses

It’s 10:00pm the night before my first binding ADR. I am extremely nervous and anxious, but everything is coming together. My major points are outlined in detail, and with a little luck a defense verdict is attenable. While my client has exposure, there is a high-low agreement in place so our damage is capped. Who wants to lose small when they can win big? I open our electronic filing system to print a few pictures to show the minor damage to plaintiff’s vehicle as a result of the accident. And then I see, “Plaintiff’s Medical Records.” But wait, this is new. I open the document and begin to browse. Right away, I spot records from 2012, but we’ve had an ADR agreement in place since 2010, what are these new records? I continue to peruse. I see a three-day hospital stay in 2012, and then the words that forever changed my night, “lumbar laminectomy surgery in 2014.” My mouth dropped. The entire case has changed.

We have an Independent Medical Examination (IME) from 2009. There was an initial delay in agreeing on the arbitrator, followed by plaintiff counsel’s numerous continuance requests, but no mention of any additional treatment or surgery. This was Civ Pro Ambush 101, and I was in the middle of a full onslaught attack.

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ABA Says It Is Okay To Internet Stalk Jurors

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Facebook Stalking

Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to “friend” them on Facebook, according to a formal ethics opinion issued by the ABA Standing Committee on Ethics and Professionalism.

Formal opinions are based on the ABA’s Model Rules of Professional Conduct, which have been adopted by all states except California. The rules are not binding but serve as models that can be adopted or modified. Formal Opinion 466 addresses three situations concerning lawyer review of the Internet footprints of jurors or potential jurors.

• Looking at information available to everyone on a juror’s social media accounts or website when the juror doesn’t know it’s being done. The opinion says the “mere act of observing” is not improper ex parte conduct, much as driving down a juror’s street to get a sense of his or her environs isn’t.

• Asking a juror for access to the his or her social media. The opinion says that is improper, much like stopping the car to ask the juror’s permission to look inside the juror’s house for a better view.

• When a juror finds out, through a notification feature of the social media platform or website, that the lawyer reviewed publicly available information. The formal opinion says the social media provider, not the lawyer, is communicating with the juror, the same as if a neighbor saw the lawyer’s car pass by and told the juror.

See, Lawyers can look up jurors on social media but can’t connect with them and FYI – The ABA Says It Is Okay To Facestalk Jurors

 

Plaintiff’s Lawyer Barred from Defense’s Medical Exam

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gavelandstetho

A plaintiff’s attorney is not allowed to be present during neuropsychological testing of his or her client, a Lebanon County Court of Common Pleas judge has ruled.

Addressing an issue that has apparently gone largely untouched by appellate court review, Judge Bradford H. Charles based his decision mostly on the defendant’s doctor’s ethical objections and the fact that the plaintiff’s attorney had not been present when the plaintiff’s doctor examined the plaintiff.

Although the plaintiff had argued that the Pennsylvania Rules of Civil Procedure give plaintiffs the right to have counsel present during independent medical examinations, Charles looked to a 2013 Lackawanna County Court of Common Pleas decision, and determined that the attorney could not be present for the standardized testing portion of the exam.

“Permitting a third-party observer to be present during [the defendant’s doctor]’s examination would create an injustice that we do not believe was contemplated by a global evaluation of Pennsylvania’s discovery rules,” Charles said.

See: The Legal Intelligencer’s, Plaintiff’s Lawyer Barred From Defense’s Medical Exam

My First Avvo Client Review “Excellent ★ ★ ★ ★ ★”

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Headhunting

Last week, I received my first Avvo client review. Avvo.com is an online legal services marketplace that creates a basic profile for every licensed attorney. Avvo’s lawyer directory provides Avvo-rated profiles, client reviews, and peer endorsements for 97 percent of all lawyers in the United States. While my current firm prohibits me from representing outside clients, Avvo attorney profiles are beneficial for developing a brand and building a network…

The Height in Professionalism and Courteous, Caring Service

When I met Andre Webb for the first time, and subsequently as he handled my legal proceedings, I was instantly impressed with his friendly, comforting and knowledgeable demeanor, which quickly put me at ease. While the legal matter turned out to be a brief one, he handled it with the out most in professionalism, and his caring and affable way really helped calm my anxiety in this unfamiliar and sometimes treacherous world that I’m so inexperienced with. It’s a great feeling to know that you have an advocate of Andre’s quality on your side, and his efforts are greatly appreciated by me. I consider him a valuable asset to his law firm, and I would certainly look forward to having him handle any further legal matters, while I also hope never to need to call upon him in the future. A true gentleman and a major credit to the legal profession.

See, My First Avvo Review. Thank you!