Inns No. 2: 'You're not trial lawyers, you're pre-trial lawyers'

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By Frank Weir

Legal News

"You aren't trial lawyers, you're pre-trial lawyers."

That was Judge Donald Shelton's summing up of the second installment of the Washtenaw County Inns of Court on Tuesday last week held on the campus of Cooley Law School.

The session looked at depositions within the context of an on-going hypothetical case scenario.

After the completion of a deposition vignette featuring an impressive acting tour de force by Mark Heusel and two Cooley law students (narrated by Mary Ellen "Nancy Disgrace" Novrocki) two panels of three commentators examined deposition do's and don'ts.

And Shelton stated that pre-trial truly is where the action is.

"We all fancy ourselves as trial lawyers, that we are going to go before the jury and save the day. But you are not trial lawyers, you are pre-trial lawyers since 98 percent of all cases settle without a jury trial.

"Are you going to spend all your efforts on the two percent that go to trial or the 98 percent that never see a jury?"

Shelton was adamant in saying that pre-trial is "where you are going to represent your client. At depositions and at pre-trial is where you shine and where you win or lose because that's when the opposing side will evaluate the case."

He added that opposing counsel will evaluate the deposition and consider how what is said will play to a jury. And that determination will affect the amount of any settlement offers.

"We talk about depositions as 'discovery' but that's like comparing it to an athletic practice before a big game. But in the law there isn't going to be a game because there isn't going to be a trial. It's at the practice, at the deposition, where the case will be resolved and where it is determined whether you have represented your client well."

Shelton noted that attorneys should bring their best efforts to bear, their best strategic planning, best questioning to the deposition that they would take to a jury trial.

Another issue that came to the fore during the session was bullying by one attorney during the deposition as well as the role an attorney should play in the information one's client relays during the deposition proper.

On that score, local attorney Thomas Blaske made several poignant remarks.

As to bullying, Blaske said that, "I've always felt that if you wrestle with the skunk you end up smelling like him. I know it isn't always satisfactory, but simply ignore whatever the bully is saying. It's irrelevant and it is not the better way of doing things.

"One way to avoid bullying in the first place is to ask better questions. The more convoluted a question, the more likely you are to be bullied. 'Why, why not, what did you do, what did you see...' Keep it simple. How can you be bullied over those questions?"

And Shelton added, "Don't play the game. It's not about you, your emotions, how you feel about the lawyer on the other side of the table. But it is about your client so take the punch and ask the next question."

Shelton noted that if an attorney reacts to bullying and a transcript ends up in front of the judge, "you don't want the judge reading how you reacted."

District Judge Charles Pope added that "If answers are concise and truthful, that takes out any opportunities for bullying."

Which brought the discussion to attorney-client interaction before and during the deposition.

Blaske noted a gray area in the law regarding what an attorney can say to a client in preparing for a deposition.

"There is a little bit of law but it is surprisingly sparse as to attorney-client interaction during breaks in an on-going deposition. Universally, courts say attorneys cannot and should not talk about the substance of the testimony to the deponent. You can't say, 'You got it wrong, you made a mistake.' That's clearly out of bounds.

"But the thing that is surprising is that there is no such prohibition in the preparation of the client beforehand. And I wonder if there should be. It worries me. So where do we go with that? There is one right thing to always say to your client: the truth, the truth, the truth. Everything bows to the mandate of the truth."

Blaske added that, "Sometimes we know lawyers who don't practice from the mountain top and they tell clients what they ought to say but I firmly believe that scripted testimony always breaks down. No one is that good of an actor and the power of the cross examination addresses that."

Next up at the Inns, team three, headed by Judge Kirk Tabbey, Magistrate Colleen Currie, and retired Judge Betty Widgeon, will examine alternative dispute resolution.

Published: Mon, Nov 14, 2011

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