Depositions are the new trial. Prepare accordingly.
Top national trial lawyer Jim Garrity, with far in excess of 10,000 depositions under his belt, wrote this book – now in its second edition - after reading studies showing that the civil trial in our judicial system is on the verge of complete extinction. One legal scholar found that about only about one percent of all federal lawsuits now end in a trial. State court lawsuits have similarly fallen off the cliff.
So now depositions truly are the new trials. That’s because depositions are in most instances the only place any witness will ever testify. So your outcome will depend heavily, even exclusively, on deposition testimony.
There are many books for sale about deposition strategies and tactics. So what hasn't been written already? The answer is, everything. The books, treatises and seminars previously on the market overwhelmingly address the mechanical aspects of depositions. They tell us to be sure to organize documents, to mark exhibits as we use them, and to work from an outline to make sure we don’t miss anything. These “tips†are instinctive and most lawyers learn them in a law school trial practice course. That’s not what you need.
Garrity’s view is that what trial lawyers really need are a set of tactics that have been battle-tested over and again, in thousands of cases and against the country’s best lawyers. On this note, if you search his name in the federal PACER database in the two states where he practices, you’ll see he’s appeared in more than nine hundred federal cases. And because half his practice is in state courts, he conservatively estimates that he’s appeared in more than 2,000 career cases. His practice area has always been high-volume and involves many depositions. The typical case involves between ten and twenty depositions; basic math tells us he’s likely taken or defended in excess of 20,000 depositions over his career, but he opted for a conservative title in naming the book.
Garrity’s goal wasn’t to add another book to the shelf about the basic mechanics of taking depositions. It was to discuss strategies and techniques you can't find in the rules. Over the course of thousands and thousands of depositions he’s paid attention to what works and what doesn't, and made many changes, sometimes almost imperceptible, in the way he approaches them. Many of those changes lead to big payoffs.
Some people say that if you focus on the basics you'll do just fine. Garrity thinks the opposite. If you're not looking for opportunities in the corners, where no one else is looking, if you're not looking for the micro-advantages that make a difference in the close cases and get you across the goal line, you're missing opportunities.
This systematic approach is the difference between amateurs and pros. Small changes often result in the biggest gains. Professionals always look in the corners for micro-advantages. For example, professional athletes - once they establish their basic routines - immediately begin looking for ways to improve them. They devote enormous resources to finding advantages to improve their skills. It may be a slight adjustment to the way they run, the way they throw, the way they hold the bat, hold the club or kick the ball. Once they make those changes, they immediately begin looking for a way to make those changes even better. It never stops. Professionals in every occupation know that continued success demands a constant hunt for improvements.
The practice of law is no different.
Try the spectacular, often ingenious techniques in this book, and use them often, making your own adjustments to suit your style. If you are hesitant to implement them on a widespread basis, try them individually. You will see immediate, substantial differences in the effectiveness of your examinations.
