Monday, March 31, 2014

Effective Depositions

There have been rumors lately about delays in litigation related to the inability of counsel to obtain the expert testimony that they require. Some have expressed that they believe some element of this difficulty is related to the manner in which attorneys behave during depositions, and a resulting reluctance of physicians to sit for depositions, or a practice of limiting the time afforded for such depositions. 

There is likely a physician out there somewhere who enjoys providing deposition testimony in cases. I have not met her or him however. From my interaction with physicians, I perceive that they attend medical school to treat people and relieve their symptoms. They seem singularly uninterested in the processes of litigation. The deposition process is at best a necessary evil in their eyes. 

I hear this feedback about continuances requested due to the inability to obtain, or at least complete, depositions. Then recently I heard of a physician deposition that consumed almost five hours of attorney and doctor time. Five hours. I was surprised by that. I immediately envisioned one of those industrial exposure claims with multiple chemical compositions, a variety of individual exposures, and a spectrum of diagnostic testing over a long period, resulting in volumes of documents and records which had to be reviewed by the parties with the expert. 

I was mistaken. It turns out this deposition revolved around the fact that two orthopedic physicians had rendered contradictory opinions. In terms of Florida workers' compensation, that is just not uncommon. There were apparently some diagnostic tests involved, but they were the expected x-rays, magnetic resonance imaging (MRI), and such that are part of virtually all of the variety of orthopedic claims in our workers' compensation system. There were not years of medical records to review, which sometimes occurs, and which necessitate review and discussion. 

In a basic physician versus physician disagreement, five hours invested in deposing an orthopedic surgeon. I cannot recall one time spending five hours in an expert deposition. Certainly, such an investment may be required in some exceptional circumstance. However, exceptional is the key word. 

Why would attorneys engage in the extent and repetition of examination or cross examination that results in such a extensive record? Time is  money, and that is true for the attorneys, the doctor, the court reporter an more. What is the motivation?

As I have heard stories of contumacious counsel, I have heard various suggestions for such behavior. Some suggest that they are not competent. Others suggest that they seek to discourage a particular physician from being involved in that attorney's cases, now and in the future. Still others suggest that with litigation volumes down, there are those who seek to maximize their time on cases in which they perceive good odds of hourly claimant's fees on one hand or the venerable defense "billable hours" on the other. There may be other explanations. The "why," though is not the critical question.

The "why" would be interesting to know. As interesting, however, would be whether counsel cares how they paint themselves in such behavior. Is the fallacy of such behavior lost on the reader?  A good deposition provides a logical progression that explains the situation to the reader. A good deposition focuses the reader (the judge) on the heart of the dispute. A good deposition is a road map leading the judge to the result which counsel seeks. 

If counsel submit War and Peace for consideration, it is the judge's obligation to read it and consider it. If counsel submits such a volume however, they risk that critical facts will be so buried in the text, that they may be missed, misconstrued, or lost in the forest. Litigators are often provided with the forest in litigation, their goal cannot be to merely present the forest, it has to be focusing the finder of fact onto the trees that are relevant, sorting them from the forest. 

There are various attributions for the following. I have not found a definitive source. But it says much. "A story is told about FDR when he was a young lawyer. He heard his opponent summarize a case before the jury in eloquent, emotional, but lengthy appeal. Sensing the jury was restless, FDR is reported to have said, 'You have heard the evidence. You have also listened to a brilliant orator. If you believe him, and disbelieve the evidence, you will decide in his favor. That's all I have to say.' He won. Overstate and bore. Understate and score. When a baseball umpire says, 'Strike three!' he doesn't have to add 'Yer out.' That's what strike three means." Essentially, get to the point, make it, and move on.

This is a profession. In it, attorneys need to focus on being professional. Do what needs to be done, and do it efficiently. Certainly take the deposition and ask the relevant questions. Be effective for your client, focusing the dispute for the finder of fact. In the process, be polite, don't waste your time, opposing counsel's, or the deponent's. In the process, you will produce a concise written record to submit to the judge, and you will make your point, without wasting the judge's time sorting through War and Peace. 

A wise attorney once told me that you should know the answer to every question you ask, and more importantly, there should be a reason for every question you ask. Prepare, focus, respect everyone's time and be professional.

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