We don’t take many depositions, and those that we take tend to be short. We don’t need to look under every stone. We just need to know where the boulders are. Excessive questioning of witnesses, particularly experts, serves only to educate them.
We normally videotape depositions of fact witnesses. This minimizes excessive talking by opposing counsel, and allows us to show the other side’s key witnesses during jury simulations. And if the other side videotapes our witnesses, we make sure to put on the record 15 to 20 minutes of trial-ready testimony to counter whatever use the other side wishes to make of the video.
We believe there is no such thing as a bad witness-only one who has been badly prepared. We don’t prepare our witnesses to testify by sitting them in a room alone with the thousands of documents on which they may have been copied over the years and ask them to review them. We prepare them for the toughest questions they will face, whether that is two, twelve, twenty, or two hundred. A good lawyer will know better than the other side what the hardest questions are, and will know the toughest documents the witness will face-typically ones the witness directly authored or received.
We pride ourselves as trial lawyers, not discovery litigators. Everything we do is to prepare us to persuade a jury. Moreover, fifty percent of our time as a firm is spent in handling contingent fee matters for plaintiffs. Preparation in these cases is on our own nickel. We cannot afford to lose. And we cannot afford to win inefficiently.
From this, we have two guiding principles for litigation, which sets us apart from our competitors and adversaries. First, less is often best. Second, don’t fight over something not outcome determinative.
Neither compromise our chances of success. Excess discovery is not just nonproductive, it is counterproductive to the extent it educates the other side or forces them to get prepared earlier than they otherwise would. And minimal found discovery doesn’t mean being ill-prepared. It means learning the case quickly and by other means, such as thoroughly interviewing our client’s employees and the other side’s ex-employees.
We maximize results with our minimalist approach through all phases of the pretrial process. We know how to economize. And we insist that everything we do be potentially outcome-determinative.
When we walk into the courtroom, we believe we have a natural advantage. All of our efforts are designed to retain that natural advantage. We are great believers in jury simulations or mock trials, and we conduct them early and frequently in most cases. They help us predict the outcome, hone our arguments, and conduct discovery with an eye to telling a simple story to a jury. They let our clients see how their lawyers will look and sound during the real thing. The cost is well worth the information and strategic guidance we gain.
In trial, we are tireless. Distractions are cut away. All of our focus and attention is on victory at trial. We set up and staff a “war room” close to the courthouse. Our attorneys move to the venue several weeks in advance of trial. Outlines for witness exams and cross-exams are in the can. Demonstratives are ready to go. We have already determined who our optimal jurors will be, and a voir dire or jury questionnaire is ready to help us select and seat them. Anticipated evidentiary or legal points have been researched and briefed. Opening arguments are polished.
How do we handle cases? To win. Period.
At the beginning of a complex case, we assemble our trial team, rarely consisting of more than one or two partners, an associate, and a legal assistant. We candidly discuss staffing with the client up front and try to assign to the case lawyers with whom the client feels comfortable.
One of our overarching beliefs-and one that enables us to litigate matters efficiently and inexpensively-is that only one lawyer should be assigned to each task. We rarely assign two lawyers to cover a litigation event and instead divide and assign responsibility for each task. Nothing brings results like ownership and accountability on issues.
Typically, the partner in charge manages case preparation by using a Task Assignment memo. Each task in the memo is assigned to a named team member with the due date, so that progress can be monitored and revised accordingly. Interoffice conferences among trial team members are necessary for effective communication and to avoid duplication of effort. But they are wasteful if the same message must be repeated. We focus our interoffice communications into a regularly scheduled meeting or conference call. This allows us to avoid repeated meetings among team members at other times, while also allowing our client’s in-house counsel, co-counsel, etc., to attend and keep up to date.
At Susman Godfrey, we are trial lawyers. Quite naturally, this means we want to bring our matters to trial, and not simply litigate for its own sake. This means we try to avoid disputes with our adversaries wherever possible.
At the start of a case, we send a memo to opposing counsel seeking agreement to a number of protocols that we have found facilitate cooperation and reduce costs. We do our best to conduct all discovery by agreement. It is expensive to do otherwise. We rarely take discovery disputes to court. Judges hate them and usually give both sides less than they could get by agreement. Our rule is to take a discovery dispute to court only when the issue is outcome-determinative (recognizing that few are), and only when we have confidence that we can win.
We have developed a list of pretrial agreements and trial agreements that we propose to opposing counsel in every matter at the start of litigation, regardless whether we are representing the plaintiff or the defendant. These agreements streamline litigation and reduce costs for both sides. We share these agreements with everyone-even other lawyers who compete against us for business-because we believe a streamlined litigation process and jury trial benefits lawyers, clients, the courts and the public at large.
Witnesses learn through doing. Therefore, we cross-examine our own witnesses on video as part of their preparation. We play back and critique their performance.
Defending lawyers are not supposed to talk during depositions. Courts are sanctioning those that do. If the witness is prepared well, there is nothing for the defending lawyers to do but listen proudly. By involving the most experienced lawyers in witness preparation, we often are able to trust deposition defense to lawyers with lower billing rates.
Some lawyers believe that what a witness doesn’t know can’t hurt him. They encourage their witnesses not to remember and not to know. This is dangerous. A witness who doesn’t know or recall at his deposition is often useless at trial. We encourage our fact witnesses to learn, remember, and be responsive, even at their depositions-to be able to handle even the most off-the-wall hypothetical questions. We encourage our experts to type out their opinions to hand to the other side.
Most lawyers do not question their own witnesses at their depositions. They are afraid to commit to what they want to prove at trial, often because they themselves haven’t taken the time to think their case through. We believe in asking many of our own witnesses questions at their depositions. This gives us some favorable testimony to show or play to the jury during the other side’s case. It also removes the need to bring all of our witnesses to trial. Opposing counsel is usually ill-prepared to engage in a trial-type cross examination after we question our own witnesses on direct at the end of the deposition. Frequently, they are in a hurry to catch planes home.