There are two days: The day you’re taking (or defending) the deposition of the witness, and the day — months or years later, if ever — when you’re examining the witness at trial. So when should you be making notes about the witness’s testimony and your reaction to it? That question answers itself: You should make quick notes of key points during the deposition, and you should write notes to yourself immediately after the deposition ends. “Immediately after”: Not later in the week; not the next morning. Now, when your brain is fully engaged.
Those notes don’t have to be comprehensive, but they have to memorialize the things that you noticed during the deposition that you’re likely to forget by either the next morning or the day, a month later, when you’re reviewing the transcript. The notes are quick and easy. Write an e-mail to yourself that says: “Today I took Smith’s deposition. These were the highlights: (1) He admitted A; (2) He denied B; remember to create some other admissible evidence on that point; (3) He evaded on C; there’s something fishy going on there; (4) Opposing counsel started interrupting when I got near D; we should press harder on that point; (5) His testimony opens up issue E; let’s do some legal research.” There might be a half dozen points; there might be a dozen. But the key is to record immediately the fleeting ideas that you had while your brain was most in gear.
During the deposition, you’re as attentive as you’ll ever be. Don’t lose the moment; capture it.
What do you use those notes for?
Many things. First, as outside counsel, those notes force you to focus your attention on a key event at the very time that the event occurred. Before you get in a cab, sit down in a quiet room, think hard about what you just lived, and distill the key points. You’re at your best then; use it.
Second, you use those notes as a memory aid. Three months from now, when you next think about Smith, you can look back at your notes and remember, “Oh, yeah. I forgot that. Opposing counsel did get antsy when I raised D. Let’s look into it.” (In the words of some great sage: “Everything has been thought of before. The difficulty is to think of it again.”)
Third, you can use those notes to keep your colleagues abreast of what’s happening in the case. You can, of course, wait to prepare notes until you have a transcript, and then choose from among the many bad choices: Have your six colleagues working on the case all read the transcript. Have a legal assistant prepare a long and unbearable deposition summary, which doesn’t differentiate between the important stuff and the witness’s job history. Read the transcript yourself to write a report, hoping you still remember the things that struck you on the day you were living the deposition. But all of those are second-best alternatives, and none of those are instantaneous. The best, cheapest, and quickest way to share information is to write the bullet-point memo as soon as the deposition ends.
What does this mean for in-house lawyers?
If you agree that bullet-point memos are a valuable tool, then insist that all outside counsel prepare them. Ask outside counsel to copy you on that memo as soon as it’s ready. By receiving the memo, you’ll stay abreast of the case in real-time; you’ll see how counsel is reacting to events; you’ll have a chance to discuss new ideas that should (or should not) be explored as a result of the testimony.
You’ll also be able to plug others into the loop. The hierarchical structure of most in-house legal departments means that more-senior lawyers are further removed from the facts of specific cases. It doesn’t help the people who are supervising a case from a distance to hear the usual pablum from outside counsel: “The deposition went pretty well.” Or: “I killed him.” Or, when outside counsel defended a deposition and the witness gave away the ranch: “He was a terrible witness. I did everything I could, but he just wasn’t educable.”
(I’m starting to wonder why the good stuff always results from outside counsel’s keen skills, and the bad stuff is always due to fate. It’s never: “I really botched the witness preparation, so the witness performed poorly.” And it’s never: “We wrote a brief that was too long, so the judge didn’t read it, and we weren’t able to convince him orally.” No, no: It’s always a bad witness or a lazy judge. Remarkable.)
As an in-house lawyer, if you receive the bullet-point memo for every deposition, then you can easily let others gently monitor a case in real-time. You — the in-house lawyer responsible for the case on a daily basis — know everything. A supervisor can ask for the bullet-point memos in all cases, or select cases, or for select witnesses. For the monster cases, the supervisor’s supervisor can read the bullet-point memos, keeping that person abreast of the litigation, keeping that person’s mind gently in the case, and giving comfort that smart people are tending to important cases diligently.
If outside counsel need other ways to track testimony, they can of course do what’s necessary to prepare a case for trial. But consider requiring instant bullet-point memos, to focus your outside counsel’s mind at the right moment, and to give you real-time information in a format you can easily share with others.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].