Don’t Coach Your Witness During Depositions-Here’s How to Avoid It

Sanctions may be waiting for you if your zealous defense of a deposition of your client or witness rises to the level of witness coaching. There is nothing wrong with a proper objection (I encourage it, when called for, instead of playing iPhone games) but you definitely don’t want to make objections solely to tip off your client/witness to play along. How can you avoid this?

  1. Don’t just say “Object to form” or “objection, form.” State the underlying reason for your form objection. If it’s hearsay, say, “Object to the form, hearsay.” Same with foundation, etc. Continuously objecting with a pattern form objection could be interpreted as merely obstructing the questioner and tipping your witness to answer in a way differently than what she would have done without your interruption.
  2. Don’t object to every other question with “vague” or “ambiguous.” These are specific terms with specific meanings that shouldn’t just be a clue for your witness to ask for clarification or try to narrow down his or her answer to extinction.
  3. Don’t overly prepare your witness. I have several articles on this blog about preparing your witness about what to expect, what to wear, when to shut up, etc. but there is a difference between preparing a witness and practically writing a script that a witness memorizes and can’t deviate from.
  4. Don’t object to every single thing that you can possibly object to. Weigh the importance of the objection. If it matters, go for it. If you are really in doubt, go for it. But if the objection is to something harmless, let it go. Your transcript shouldn’t be littered with your name on every other line.

If we all follow these rules, we ultimately all win. Shorter depos mean cheaper depos. Cooperative depositions lead to future cooperative depositions and misconduct sanctions are avoided.

An Interesting Opinion on Tort Reform from 1987

I found the dissenting opinion below in a products liability case from 1987. It really does make me stop to wonder if things wouldn’t be more equitable if everyone was informed of everything in a case: that there is insurance, that the victim has already been compensated x amount, etc.

HICKMAN, Justice, dissenting.

I dissent because the appellant did not manufacture nor supply the machine that took the hand of Jeff Green.
This case is typical of products liability cases, and in some respects demonstrates what is wrong with our legal system in the way it has come to treat torts.
First, the employer, Chicopee Manufacturing Company, built this machine, and if anyone or any entity should be blamed for negligent design, or failure to warn, it is Chicopee. Of course, Chicopee has workers compensation insurance and cannot be sued. The appellee, Jeff Green, has presumably collected his compensation. It will not, I am sure, compensate him for his loss, but it is not insignificant either. Then there is the carelessness of Jeff Green. Frankly, he should have known not to stick his hand in the machine. Common sense tells us all that that is dangerous. But, tragically, these accidents do happen regardless of the care and good intentions of employers, supervisors and employees.
Why this particular lawsuit? For money. If only a slight case can be made against someone or some company remotely connected with the accident perhaps a jury will make an award. The jury, of course, is not told the truth. They are not told Chicopee has workers compensation or Green has made a recovery. We are going to have to begin telling juries the truth if we intend to reform tort law. The simple fact is that we do not trust juries with the truth. Insurance companies fear that juries will make excessive awards if they know a defendant has insurance. Plaintiffs’ lawyers fear juries will reduce their awards if they know their clients are already compensated. So we keep from the jury the truth and have lawsuits like this: a defendant with a deep pocket is sued in hopes of more money.
The law, of course, can be stretched to bring such defendants into the realm of liability. Usually the theory is a failure to warn—that is the handiest charge of negligence.
Even hammers, axes and ladders have warnings on them, warning users to be careful. These warnings are put there because manufacturers have been sued because someone was dumb enough (and there is no other way to say it) to hurt themselves through carelessness. Carelessness causes many accidents, and all the signs in the world will not change that fact.
I regret joining the decision in W.M. Bashlan Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). A safety belt, over 11 years old, failed while being improperly used, and we affirmed an outlandish verdict. It is such decisions as this which are, in a large part, destroying our ability to produce products in this country, and at the bottom of it all is simple greed.
There is tragedy in the lives of those harmed, but our system has adequate legal remedies for most wrongs. The quest for larger and larger verdicts is simply founded on greed. Why not tell juries the truth? Why not tell juries exactly how much the lawyers will get? Could we have any worse system?

Ark.,1987.
Hergeth, Inc. v. Green
293 Ark. 119, 733 S.W.2d 409, Prod.Liab.Rep. (CCH) P 11,551

Friday Funbag: Why Does This Attorney Think Humans Have Dog Piss in Them?

20140724-190951-68991930.jpgSo….

My friend, an attorney here in Little Rock, says he got this Request for Admission this week from an attorney, whose name he kindly redacted even though he didn’t have to. And we all wish that he didn’t, I’m sure.

If I got this from someone I knew, I would probably laugh pretty hard. But…he doesn’t know the person who sent this. I have been assured that this person did not attend law school in Arkansas. 

So….

If you’re reading this and you wrote it, please email me and tell me your thought process behind that decision. I’m not sure if this is meant to be funny or posturing or what, but…I’d sure like to know.

Other readers: have you ever gotten a completely off the wall discovery request? Do tell. 

 

 

Citizen’s Arrest, Citizen’s Arrest!

Have you ever made a citizen’s arrest or know someone who has?

Here are some examples from the internet of people who have: 

I was walking up the road on my way home, and a little bit up ahead I saw a guy step out and grab a womans handbag and start to run away. I started chasing after him, as well as two other guys that saw it. We were all pretty much running from different directions. The guy took off down the road with us in pursuit, and we managed to catch him, and took the bag off him. Suddenly he twisted free and ran away down the road again. So we chased him again. We ended up chasing him for 5 blocks, down the middle of a 4 lane major road, during rushhour, and finally caught him again and made sure he couldnt get free. Luckily an off-duty policeman had witnessed the chase and turned around to help us.

And from the merchant perspective: 

I do it all the time. I work in Loss Prevention. The only reason stores are allowed to have LP departments is because just about every city and state has laws that allow people to make a “citizen’s arrest” of someone who has stolen from them. Where I live, if someone steals from you, whether you are a store or a private citizen, you have a legal right to detain them until police can arrive. It is the same in most of the U.S. And don’t believe that BS about store LP not being allowed to touch you. Many companies have policies that try to avoid physical detainment of shoplifters, but most laws actually authorize reasonable physical force when detaining a thief.

But… Why can you do it? When can you do it? Where can you do it?

I. The Common Law

At common law, a private person can:
  • arrest
  • without warrant
  • for a felony or
  • breach of the peace 
  • committed in his or her presence.

A. “In presence” requirement

“In presence” means that the  arrestor actually saw acts that made it pretty clear cut that a crime was either about to happen, was happening, or was just ending. Under some statutes, if the felony is actually committed in the presence of a private person, they can arrest any person they have reasonable ground to believe guilty.

B. Reasonable Belief

Actual knowledge of the commission of the felony is not required to authorize a valid citizen’s arrest, as all that is required is reasonable grounds to believe that: (1) a felony had been committed, and (2) that the person arrested was the responsible agent.

C. Misdemeanor Citizen’s Arrests

In some jurisdictions, a private person may arrest for any misdemeanor committed in his or her presence. But, under the common-law rule, which is codified in some states, such arrests can be made only for a misdemeanor constituting a breach of the peace. A private person’s right to arrest for an affray or breach of the peace exists only while it is continuing, or immediately after it has been committed, or while there is a continuing danger of its renewal, and does not include the right to pursue and arrest for the purpose of insuring the apprehension or future trial of the offender. A private citizen cannot arrest without a warrant for a misdemeanor previously committed, unless pursuit for the purpose of arrest is begun immediately.
Arkansas does not provide for misdemeanor citizen arrests, with a couple of exceptions.

II. Current Arkansas Statutory Law

Arkansas has codified the common law: 

Arkansas Rule of Criminal Procedure 4.1(b) provides in pertinent part: A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.

Additionally, Arkansas recognizes motel keepers rights: “There was common-law right for motel manager, although private citizen, to detain traveler suspected of theft.” Partin v. Meyer, 1982, 277 Ark. 54, 639 S.W.2d 342

III. What if Someone Puts You Under a Citizen’s Arrest Unlawfully? 

The English common-law right to resist an unlawful arrest became established at least by 1710, and during the nineteenth and early twentieth centuries, it became the established rule in the United States as well. In Bad Elk v United States (1900) 177 US 529, 44 L Ed 874, 20 S Ct 729, for example, the United States Supreme Court held that the defendant, whose murder conviction was reversed, had the right to use such force as was absolutely necessary to resist an attempted illegal arrest.
In the modern American decisions on the question, a number of courts from a variety of jurisdictions have applied or recognized the traditional common-law rule that a person may resist an unlawful arrest by the use of reasonable force, while the courts in a few jurisdictions have modified that rule. Thus, although the statement in some cases that there is a trend toward limiting the right of resistance to illegal arrest is true in the sense that the common-law rule has recently been modified in some jurisdictions, it is not true that the common-law rule has been abandoned more often than upheld in the modern cases.
Assuming that the use of reasonable force to resist an illegal arrest is permissible, the question arises as to how much force is reasonable. The answer most frequently given in the modern cases is whatever force is necessary to avoid the arrest, short of homicide. Of those jurisdictions in which the common-law right to resist an unlawful arrest has been altered, most have adopted the view that a private citizen may not use force to resist a peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties. This is the best description of current Arkansas law on this topic.
In other jurisdictions, the courts have made exceptions to the common-law rule where the basis for resistance is that the law allegedly violated is invalid, or that the arrest warrant is technically defective.

IV. Merchant Rule (Common Law)

The right of a merchant to detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting derives from the common law right of citizen’s arrest

A. Statutory Right to Detain Suspected Shoplifters

Various state statutes giving a merchant a qualified privilege to detain suspected shoplifters usually provide that merchants or their employees or agents may detain, in good faith and upon probable cause or reasonable grounds, any person believed to be removing goods for sale from the store without paying for them, provided that the detention is for a reasonable time and in a reasonable manner. In Arkansas, a suspected shoplifter “may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, merchant, or merchant’s employee in order that recovery of a good may be effected.” § 5-36-116.

B. Presumptions of Shoplifting 

A statute may state a presumption that a person concealing unpurchased goods is taking the goods with the intention of depriving the owner of them, thus warranting a reasonable detention by a merchant. This is the current presumption in Arkansas under  § 5-36-102(c)
In Arkansas, a presumption of shoplifting also arises if an antishoplifting or inventory control devices goes off as someone is exiting the store. Sufficient notice must be posted to advise patrons that the device is in use and that activation of the device constitutes reasonable cause for detention. 

C. Procedure After Detention

Arkansas law provides a pretty straightforward for what comes next. First, the merchant calls the police, who may arrest the person without a warrant, if they believe that there is probably cause that a shoplifting has occurred. Then, the police officer and the merchant or merchant’s employee (whoever witnessed the incident) must provide a written statement, explaining the circumstances that led to the arrest. Then, the suspect must immediately be brought before a magistrate and given the chance to make a bond or recognizance. 

D. Immunity

The detention by a law enforcement officer, merchant, or merchant’s employee does not render the law enforcement officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

E. What’s Reasonable? Murray v. Wal-Mart

Murray, a black female, was shopping at an Arkansas Wal–Mart on June 14, 1986, with her daughter and grandchildren. During her visit to the store, she put one hundred dollars’ worth of merchandise on layaway, purchased fifteen dollars’ worth of other items, and left the store with $207 in her possession. While shopping, Murray had been observed by Dana Elliot, a Wal–Mart loss prevention employee. Elliot testified at trial that she had seen Murray take a bottle of cologne, valued at $5.87, out of its box and place the bottle inside her halter top. As Murray was leaving the store, Elliot, store manager, Harris, and an assistant store manager detained Murray and inquired about the cologne. Murray denied the accusation of shoplifting and pulled her halter top down to show that she was not concealing any merchandise. Harris directed Murray to accompany him back into the store. Profane and racially derogatory comments were made by Harris at this time.
Murray was escorted to the second floor of the store. Harris or Elliot emptied the contents of Murray’s purse onto the floor. More derogatory statements were made to Murray while this episode unfolded. The Wal–Mart employees then telephoned the local police and, based upon the advice of a local prosecutor, requested prosecution of Murray for shoplifting. Murray was taken into custody and was searched by a female officer at the station. The search revealed no concealed items. Murray was denied access to her heart medication when she requested it for pain. Following her release, she sought medical attention because of her nervous condition.
Wal–Mart has an established shoplifting policy which provides that (1) Wal–Mart employees should treat a suspected shoplifter with courtesy, (2) employees should let suspected shoplifters go when in doubt or when unable to find items on the person, and (3) store managers should check with the regional supervisor before prosecuting doubtful cases. Despite this established policy, and notwithstanding the fact that a thorough search of Murray revealed no concealed merchandise, Wal–Mart continued to pursue Murray’s prosecution. Subsequently, Murray was charged with shoplifting but, after trial, was acquitted.
Addressing the merits, the district court found that Wal–Mart had pursued prosecution without probable cause, that the intentional and outrageous conduct of the Wal–Mart employees caused Murray to suffer severe emotional distress, and that the conduct was willful, wanton, and malicious. Furthermore, Harris physically pushed Murray back into the store, even after she warned him of her heart condition. Also, the fact that Wal–Mart continued to detain, search, and prosecute Murray without probable cause and in violation of its own policy smacks of exactly the type of “intentional infliction” to which this cause of action refers. The evidence of the Wal–Mart employees’ outrageous behavior toward Murray sufficiently supports the district court’s finding of intentional infliction of emotional distress.
Consequently, the court awarded Murray $15,000 in actual damages, $10,000 in punitive damages, and $7850 in attorney fees.

VI. Not Available in Some States

Citizen’s arrest is prohibited in North Carolina, Oklahoma, Pennsylvania, and Washington State under any circumstances.
And no state actually requires that you yell, “Citizen’s arrest, citizen’s arrest!” but you obviously try to, if you get the chance.

Where Does Arkansas Stand (its Ground)?

Stand Your Ground v. Castle Doctrine-Where Does Arkansas Fall on the Spectrum? 

Preliminary note 1: I’ve chosen to use male pronouns throughout. That’s not because women don’t use these doctrines, because they definitely do; however, the  majority of cases involve men.

Preliminary note 2: If you know me personally, you are probably expecting me to come down harshly against SYG. That’s not necessarily the case, as we will discuss at the end. Trust me, that’s painful to say, but for me, it really comes down to application, as the problems associated with the law itself are inherent in every type self-defense law. 

Preliminary note 3: While I support some gun regulations, I don’t have a beef with responsible gun ownership (shocking, I know!). I’m actually a pretty good shot.

Ok, enough, enough. 

So-called “Stand Your Ground” laws (hereinafter “SYG”) and “Castle doctrine” laws have made lots of news lately (as usual, thanks to Florida!).

Bugs Bunny saws off Florida

One of our upcoming Attorney General candidates has even made introducing a Stand Your Ground law in his first legislative package a campaign priority.  With all the recent hullabaloo, I thought it might be helpful to discuss where Arkansas actually falls on this issue. We’ll use Arkansas statutes and case law to examine the current state of law.  

What’s the Difference? 

The real legal questions here are: 1)When, 2) where, and, 3) if someone has a duty to retreat before using deadly force in self-defense. It’s important to know that just because a state has SYG or a “Castle doctrine,” that doesn’t necessarily mean its the same from state to state. It’s better to think of this as a bag of options, with states picking and choosing which options to apply.

Some states have explicit statutes, some states use case law, most use both. 

That being said, there are typical definitions for each. 

Here’s what the spectrum looks like: 

Duty to Retreat if at all possible, no matter the location. 

Duty to Retreat, if at all possible, but only if the initial aggressor shares the dwelling where the attack is happening.

No duty to retreat, if altercation is happening in the defendant’s home (his “castle” and sometimes this  includes defendant’s vehicle).  46 states currently have at least this definition. 

No duty to retreat, if altercation is happening in the defendant’s home or the area around his home (called the “curtilage”). This is Arkansas, currently and a significant minority rule. The retreat rule has always been the minority rule in the U.S.

This is an example of how media confuses SYG with Castle doctrine:

Notice they are in the curtilage of this couple’s home. 

No duty to retreat, if defendant is any place he is lawfully entitled to be (this is the typical definition of SYG). This is the majority rule and it has been the majority since even before the recent newsworthy trials came up.

In every definition, the use of deadly force in self-defense must be justifiable, which generally means that the defendant reasonably believed either his life was in danger or that he was in danger of great bodily harm (self-defense usually provides that you meet “force with force,” i.e., you can’t use deadly force when someone is flicking rubberbands at you). Some states also allow the use of deadly force to prevent the sexual assault of yourself or someone else.

Justification: Immunity or Defense?

Using force in self-defense is known as “justification.” But some states define justification as an “immunity” and some define it as a “defense.” 

Immunity bars suit, charges, detention and arrest. A defense allows the state to bring criminal charges or a private person to bring a civil complaint, but the defendant may present mitigating circumstances that ultimately relieve him of responsibility or culpability.

In Arkansas, force used in self-defense falls under the category of “defense.” ACA 5-6-202. 

The State has the burden of negating defense of justification in prosecution for homicide. 

Arkansas Statutory Law

Who are we talking about?

First, we are talking overall about ordinary citizens. There are other standards that apply to police officers, etc.  That’s a whole different body of law (as I’ve been learning on a case I’ve been working on for the past couple of years). 

As discussed above, we are generally discussing defending your own person, but sometimes you can also be justified in defending someone else and sometimes you can even be justified in defending property, not just a person. 

Non-deadly force:

Defense of a person.

 ACA 5-2-606 covers the use of regular (non-deadly) physical force in defense of a person.

In Arkansas, a person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.

But note: You aren’t justified to use physical force to defend yourself if

1) you provoke the other person into using unlawful physical force and your purpose is to cause them physical injury or death; or

2) you are the initial aggressor, unless

a) you withdraw from the encounter and that withdrawal is effectively communicated,

b) the other person continues or threatens to continue the use of unlawful physical force; or

c) the physical force involved is the product of a combat by agreement not authorized by law. (I really hope this is about dueling!)

What about a premises?

A person in lawful possession or control of premises or a vehicle is justified in using nondeadly physical force upon another person when and to the extent that the person reasonably believes the use of nondeadly physical force is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises or vehicle. ACA 5-2-608.

Deadly force: 

Defense of a person.

ACA 5-2-607 covers the use of deadly physical force in defense of a person.

In Arkansas, you can use deadly force if you reasonably believe that the other person is:

1) Committing or about to commit a felony involving force or violence;
2) Using or about to use unlawful deadly physical force; or
3) Imminently endangering the person’s life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.

When do you have a duty to retreat? 

You cannot use deadly force if you know that by retreating (i.e., leaving, fleeing, etc.) you can avoid the necessity of using deadly physical force with complete safety.

The duty to retreat DOES NOT APPLY if you are in your own dwelling or on the curtilage surrounding your dwelling and you were not the original aggressor. That includes when the dwelling is also shared by the victim. See Thomas v. State266 Ark. 162, 583 S.W.2d 32 Ark., 1979.

What about personal property? 

You cannot use deadly force to protect only property when the other person is claiming it is rightfully theirs (even if they are incorrect). If their is force, burglary, etc. to go along with the attempt on personal property, those situations are already covered. 

What about real property? 

You can use deadly physical force to protect real property if 

1) Use of deadly physical force is authorized by the stuff I already talked about; or

2) You reasonably believe the use of deadly physical force is necessary to prevent the commission of arson or burglary by a trespasser. ACA 5-2-608.

Presumption of justification in your own dwelling:

5-2-620 also outlines a presumption that any force or means used in your own dwelling was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary. That’s not just a presumption, that’s a strong presumption, but in criminal cases it doesn’t have any effect, because the State already has the burden to prove its case beyond a reasonable doubt

Other Statutes: 

There are additional statutes which cover the use of physical force in specific situations (protecting unborn child, etc.) that I haven’t covered. Those are all in the same chapter and 

Use of Deadly Force Application in Arkansas Case Law

Here a two example cases demonstrating fact patterns where deadly force was not found to be reasonable, even when the offenses occurred on the defendants’ properties.

Sipe v. State

Our most recent reported case dealing with the duty to retreat is Sipe v. State of Arkansas, 2012 Ark. App. 261 (CA CR 11-677, April 18, 2012). Robert Sipe said that he awoke to the sound of his four-wheeler ATV being started and the engine revving. Sipe said that he looked out of his window and saw a man on his ATV. Sipe then got dressed, grabbed his handgun, removed the barricade from his front door, and went out on his porch to investigate. Sipe testified that he saw a man riding his ATV and when the man started coming toward him, Sipe fired a warning shot. When the man kept coming, Sipe shot him. Sipe also testified that the man pointed something at him, but that he did not know what the man was pointing. After shooting him, Sipe went to the victim and discovered that it was Brian Lumen, a childhood friend. Sipe placed two blankets on top of Lumen’s body and waited for police to arrive. 

According to Sipe, he and Lumen had been estranged for the last five years due to Lumen’s “destructive behavior.” Appellant claimed that when he had tried to rekindle his friendship with Lumen in 2009, he had to ask Lumen to leave his property because Lumen was “on drugs.” Appellant testified that after that incident, things “began happening” at his house, including his dog’s inexplicable death, his door being kicked in with items stolen (including the ATV key), tractor tires being slashed, etc.
Sipe testified that he began barricading his front door and argued that he was justified in shooting the victim because he feared for his life.

The Arkansas State Medical Examiner  testified that the victim was shot in the back—“left flank.”

Defendant Sipe was convicted of manslaughter in Garland County for shooting Brian Luman and given 20 years imprisonment. 

Given the site of the injury, it was reasonable to assume the victim was fleeing and was not endangering the life of Sipe, but Sipe claimed he was justified in defending his property as well. Even assuming that the appellate court addressed that issue, which it didn’t because it wasn’t properly raised below, Sipe would not have been justified in defending his ATV with deadly force because none of the elements of 5-2-607 were met. 

What if Arkansas had SYG? Most SYG statutes do not apply to protecting property when there is no reasonable belief of danger to the person, so the outcome would be the same.

Anderson v. State
353 Ark. 384, 108 S.W.3d 592
Ark.,2003.

On June 1, 2000, Pete’s estranged wife, Lauren , her brother, Ricky Jasay, and two other friends, gathered at Anderson’s house to drink and shoot pool. Lauren passed out early in the evening so Anderson put her to bed in his bedroom. Their relationship, however, was not romantic. Later that evening, Pete started spinning his pickup truck around in the field next to Anderson’s house. It was then that Anderson went inside the house and brought out a shotgun. One witness heard him say, “[w]e got three options. I’ve got this gun and I got this knife or we can compromise.”

Pete drove away, heading toward his father’s house; but, later he was seen running down the road because he had run out of gas. Anderson offered to give him some gas, so the two men went to Anderson’s shed and returned with a plastic jug. At that point, Pete started asking Ricky if his estranged wife, Lauren, was inside appellant’s trailer. When Ricky would not respond, Anderson intervened and told Pete that Ricky did not have to tell him anything. According to one witness, Pete jumped up, shook his finger in appellant’s face and shouted: “Look, Randy, this ain’t concerning you. It’s between me and Rick. I just want to know if Lauren is inside. I want to talk to her.”

Anderson testified as follows: Pete’s argument with Ricky resumed after he told Anderson to stay out of his business. Pete threatened to kill “every MF in here if I have to,” and he tried to get into the house to see Lauren. Anderson barred him from getting into the house because he did not know what Pete would do to Lauren if he found her passed out on appellant’s bed. Pete then called Anderson out to the yard to fight. Anderson picked up his shotgun and followed Pete out to the driveway. When Pete turned suddenly and rushed him, Anderson  pulled the trigger. He could not remember firing the second shot, but he did remember moving the body because he was afraid Pete’s father would see the body and kill him.

Barbara Snow testified that she and her boyfriend, Dale Adams, were in bed on the evening of the shooting incident when she received a call from Anderson. Barbara rode with Dale to Anderson’s trailer. When they pulled up, she saw a large puddle of blood near the driveway. She recounted several statements that Anderson made that night: “He said that he shot him in the, I mean, in the chest one time. And he said he was moaning and he said, ‘I finished him off. I shot him in the head.’ ” Barbara also testified to hearing the following conversation between Anderson and her boyfriend, Dale: “Anderson asked Dale, he said, ‘What to you think I’ll get for this?’ Dale said, ‘Man, twenty years or better.’ He said, ‘I can do twenty.’ … [H]e picked up a knife and he said, ‘I can say he was coming after me and he, you know, it was self-defense.’ ”

According to the medical examiner, Pete would have lived three or four minutes had he not been shot the second time.

The jury did not find Anderson’s testimony credible and convicted him of capital murder. 

Result under SYG?: Same, because the use of deadly force was not reasonable. 

Is Stand Your Ground Bad Law? 

Well, obviously not. That’s not the case under SYG either. This is a really a disagreement with a jury’s finding of reasonable apprehension of bodily harm. 

I Don’t Think it’s Inherently Bad

Hang with me, liberals. 

Justice Oliver Wendall Holmes, Jr. said in Brown v. US (256 U.S. 335, 1921) that “detached reflection cannot be demanded in the presence of an uplifted knife.” Realistically speaking, if someone is actually threatening your life and you are able to fight back, you aren’t going to run through an analysis of whether or not you can flee with complete safety. You definitely aren’t going to run through a legal analysis of your options. 

Complete safety is a pretty high hurdle to meet. I have a hard time seeing a jury convicting someone, if deadly force was threatened, because they didn’t retreat. It’s much more likely someone would be convicted because deadly force wasn’t appropriate to begin with (as we saw in the two cases above). 

Some examples cited by media claiming the results would be different under the different self-defense retreat rules are just false. 

Example 1: The garbage dispute

The shooting victim claims he knocked on the shooter’s door because the shooter had reported his illegal conduct to the authorities. An angry confrontation ensued and the shooter closed the door. Apparently the victim continued pounding on the door so the shooter opened it and shot him.

If true, the shooting was equally illegal under the retreat rule or Stand Your Ground laws. Under all of them if someone breaks down your door you may shoot. Under none of them can you open the door and shoot someone who angrily pounds on your beyond which you a safe.

Note that there is also complete agreement under each rule if we assume the shooter’s story is correct. If you open the door to talk to someone who then tries to force his way in you may shoot unless it is clear that he cannot get in (e.g., a 110 pound woman tries to force her way into the home of a man who is 6′ tall and weighs 185 lbs.)

Example 2: The prostitute

Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun.

See also People v. Riddle, a case from a retreat rule state [47 Mich. 116, 649 N.W.2d 30, 2002]:

[this case upholds the retreat rule in theory but severely limits it. Facts showed that defendant was not attacked at all and court upholds conviction.]

Example 3: The cabbie

His story is that after he got his passenger out of the car, the passenger pulled a knife. Obviously the cabbie was not required to partially turn away and try to get in his cab exposing his side and back to a stab wound. Nor need he have done that even if the passenger had not had a knife. Retreat is required only if it can be accomplished in complete safety.

Arguments Against Stand Your Ground Don’t Always Hold Up, Although There Are Some Concerns in its Application

1) SYG is backwards law and only hick states use it

As we discussed above, the duty to retreat in public spaces has always been the minority. SYG is not limited to “hick” states and it’s not new. The media has trouble discerning between states where SYG is codified and those where it is common law, so graphical representations are often distorted. 

2) SYG leads to a disproportionate amount of injury to minorities. 

Economist at Georgia State found a significant increase in homicide and injury to more white males than minority males in states with SYG laws. But, there does appear to be a higher prosecution rate against minorities (no surprise there)  in cases where self-defense operates as an immunity. This applies to all types of rules, but obviously SYG provides more opportunities for prosecution to arise.

3) SYG has a disproportionate racial impact

When Caucasians use the SYG against black attackers, they are more successful than when black attackers use the defense against white attackers, 17% to 1% respectively (also, no surprise there). 

This is where the problem lies. I really don’t think it’s the law itself that’s an issue (although you may disagree); for me the problem lies in its application. But, that is true of a lot of laws and it doesn’t mean that we strike them down. It’s an issue that needs to be addressed throughout the entire criminal justice system. 

Here is an ad put out by a conservative group, playing on fears of racial minorities, in order to make fun of liberal opponents of SYG laws: 

3) SYG leads to higher rates of murder/crime. 

Maybe yes, maybe no…studies on this actually show crime decreasing in some states with SYG (for instance, Florida), but other studies show an increase in murder rates. 

4) SYG leads to “shooting first”

This is true of all kinds of self-defense. 

Again, this is true of every type of self-defense law. 

5) If the other witness is dead, how do we know it was self-defense?

Again, this is always true in self-defense. 

Other Reading: 

For historical review of self-defense cases in federal courts, this article is a good perspective.

 

Smoooooth Operator: Using Documents in a Deposition

This month marks my third year since law school graduation. In that time, I’ve gone from taking no depositions and reading no depositions to reading lots of excerpts from depositions (I was a judicial clerk), but taking none, to having taken what I think must be around 75-100 at this point, if not more. From what I’ve experienced, it seems like efficiently using documents in a deposition is a difficult skill to master. Most of us watch one or two depositions before we head out on our own, so it is no surprise that this can be a little difficult.  I’m not judging: I’ve struggled with it too. I still struggle with keeping up with what number exhibit I’m on, despite my best efforts.

This post is designed to cover the basics. For the most part, it’s not that hard once you get the hang of it. That being said, you don’t have to be a first-year attorney to get tripped up. There is a lot to remember and some attorneys don’t even take depositions until they’ve been practicing for five years or more. Some have been practicing for 20 years, but it just isn’t something they do that often. So, whether you’ve been practicing 1 day or 30 years, welcome! This is a reminder for all of us on the ins and outs of using documents. Here’s a roadmap for this post:

 

I. Using a Cheat Sheet

II. Quick and Dirty Steps to Introducing an Exhibit

III. Marking an Exhibit

IV. Authenticating an Exhibit

V.  Business Records Exception

IV. Other Hearsay Exceptions: This will follow in Part 2, because there are about a million of them.

I. USING A CHEAT SHEET

An important thing to remember is that there is no rule against having a cheat sheet. You probably won’t need one if you plan to introduce two documents, but I’ve been known to use them in depositions with 10-40+ documents. Here is an example:

Deposition of James Bond

May 2, 2011
2:00 pm
Documents Intended to be Introduced at Deposition
Ex. #, Title of Document, Date of Document (if any), Purpose of Introducing Document 
1                             Complaint                               11/29/11                                                                      Review allegations in Complaint, establish basis for allegations,  *NOTE: Par. 32-34 are especially important
2                             Resume                                     none                                                                              Review past/current employment; qualifications
3                             Equipment Service Log            10/20/10                                                             Establish last time machine was serviced; establish person(s) responsible for service, *NOTE: Clarify initials “ES” & who prepared document

And so forth.

There is no shame in using whatever you need to use to keep everything running smoothly and efficiently!

 

II. QUICK AND DIRTY STEPS TO INTRODUCING A DOCUMENT

 
These steps are broken down in detail below, but this is the concise list. Feel free to take it to a deposition if you need a reminder.
1. Mark the Exhibit
2. Authenticate the Exhibit
3. Lay the foundation for the business records exception to the hearsay rule
4. Lay the foundation for any other available hearsay exception (or non hearsay argument) for hearsay statements which are contained within the document itself (this will be covered more in part two).
5. Question the witness about the documents. Here are the reasons you might want to questions the witness:
    a. impeach their prior testimony
    b. figure out what terms in a document mean or what the document itself is used for
    c. figure out who wrote or prepared the document
    d. tell your client’s story and reinforce your case’s theme
    e. refresh a witness’s recollection

III. MARK IT

This is where prep work comes in handy. If you’ve already made your cheat sheet, this is will be a lot easier.
1. Before the deposition ever starts, figure out where in the deposition this is likely going to come in. For instance, if you think it could be first, write: “1” in pen or pencil that on the corner.
2. Make sure you have enough copies: 1) original for the court reporter; 2) one copy for each attorney/party present; 3) a copy for you; 4) if your client is present, a copy for them too.
3. Hand out copies to opposing counsel.
4. Say: “I will ask the Court Reporter to mark  as Exhibit 1 a Complaint stamped November 29, 2011, with the caption: Jellyfish Wells v. Acme Machine Company, Case No. CV-11-001.” If your evidence has a bates stamp number, cite that as well: i.e.,  “carrying Bates Stamp number 98.”
5. Let the Court Reporter physically mark the original exhibit with an exhibit sticker (be sure to carry some of these with you too, just in case they run out).
6. The Court Reporter will likely hand it to the witness (if they hand it to you, then hand it to the witness).
7. Say: “Are you looking at Exhibit 1?” The witness will answer: “Yes.”
You are now ready to move on to the first step in laying a foundation: authenticating!

IV. AUTHENTICATE IT

The rule requiring authentication in Arkansas is found at Arkansas Rules of Evidence 901-903. The requirements for originals v. duplicates are found at Rules 1002-1003; 1005-covers authentication requirements for public records; 1007 covers authentication of writings, recordings, or photographs of a party. The point of authenticating a document is to show that the document is what it purports to be, that it is an accurate copy of a document that it purports to be, and that it’s accuracy can be established by the person who is answering questions about it.
This is a sample transcript of authentication at a deposition, where the witness is also the signer of the document:
Q: Will you please identify Exhibit 1?
A: Exhibit 1 is a Complaint filed against Acme Corporation in Pulaski County last year.
Q: And if you will turn to the last page, can you identify that signature?
A: That’s my signature.
Q: Is this a true and correct copy of the Complaint you filed against Acme Corporation corp?
A: Yes, it is.
This is a sample transcript of authentication at a deposition, where the witness is not also the signer of the document:
Q: Will you please identify Exhibit 1?
A: Exhibit 1 is a Complaint filed against Acme Corporation in Pulaski County last year.
Q: And if you will turn to the last page, can you identify that signature?
A: That’s Jellyfish Wells’ signature.
Q: How do you know that’s Jellyfish Wells’ signature?
A: Because she is mother. I’ve seen her signature my whole life and I helped her write this Complaint.
Q: Is this a true and correct copy of the Complaint you helped your mother file against Acme Corporation corp?
A: Yes, it is.

V. IS THIS A BUSINESS RECORD THAT YOU WANT TO GET IN? IF SO, TAKE STEPS TO ESTABLISH A BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE.

803(6,7) cover the exceptions to the hearsay rule for business records. This section is treated separately because it is the most common exception invoked. This is a sample of a transcript where an attorney is able to lay the foundation for the business records exception:
Q: Can you identify Exhibit 3?
A: Yes, it appears to be an Acme machine service log for 2008-2009.
Q: And were you an employee of Acme during that time period?
A: Yes.
Q: What was the machine service log used for?
A: We used it to keep up with the dates that the machine was serviced.
Q: Are the entries made at or near the time the machine is serviced?
A: Yes.
Q: Are the entries made as part of the regular business of Acme?
A: Yes.
Q: Is Exhibit 3 kept in the ordinary course of Acme’s business?
A: Yes.
Q: How do you know what Exhibit 3 is?
A: My job is to review the service logs every month and update our reminder calendar. I also use the information to prepare end of the year reports.

Negative Evidence under 803(7)

Note that 803(7) also allows for negative evidence; the absence of a record, commonly referred to as “negative evidence,” is just as admissible as any regularly kept business or public record, provided the proper foundation is laid.
A proper foundation here does not require any magic language. But, it is important to get the witness to testify that a diligent search was conducted. You need to get:
1) How the search was made
2) Where the search was made
3) Any thing else about the document: type, how it is normally stored, how long it is normally stored, if it was ever seen, where else it could be if anywhere, etc.
4) Anything else that could establish the thoroughness of the search: how many people involved, what levels of corporation involved, all possibilities extinguished, etc.
Legal things you need to know:

A memorandum, report, record, or data compilation, in any form, if kept in the course of a regularly conducted business activity is not excluded by the hearsay rule, even if the declarant is available as a witness. Such records include information of acts, events, conditions, opinions, or diagnoses, made at or near the time that are transmitted by a person with knowledge. If the testimony of the custodian or other qualified witness shows that it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, the information is not excluded unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Ark. R. Evid. 803(6). Absence of a record of regularly conducted activity is also admissible. Ark. R. Evid. 803(7). This is all covered by the business records exception, and it is discussed in detail in Ch. 72.
Authentication of records under this rule can be by affidavit.

So that’s it for now! Stay tuned for Part 2, in which the  other exceptions to the hearsay rule are covered!

Pregaming Your Client’s Depo, Parts 1 & 2: Interview with my mom and free templates

Prepping your client for their deposition=probably the most important part.

The most discouraging thing about it  is when you spend hours or even a whole day preparing your client for their deposition, cover everything important, and then they do all of the things they aren’t supposed to anyway! Gah!!! I think as attorneys, we forget how nervous people get in that kind of situation, because we have become immune to it. I mean, seriously, what is the big deal? Why is it so hard to follow simple instructions, for crying out loud? In order to find out, I interviewed my mom.

My mom was in a bad car wreck when I was a 2L. She was represented by a family friend, who is a very competent plaintiff’s attorney. Her deposition was taken by State Farm ahead of trial. Here is our facebook chat about what made her nervous and what would have helped:

MeWere you nervous before your deposition?
Mom: Yes, very.
Me: What made you nervous?
Mom: Never having done it, so the unknown; worried about not giving the correct answer or even if it was true, I was worried my words would get twisted.
And the thought of the court reporter made me nervous for some reason
And just the stiffness/officiousness.
Me: The court reporter is usually the nicest person in the room. Why did that make you nervous?
Mom: I’m not sure , she was very pleasant, but I think trying to remember to speak my answers and not just nod or use my hands.
Also, I think trying to answer truthfully with out giving him too much Information.
Me: So, there were just a lot of things to remember at once?
Mom: Yes, and I was in a great deal if pain with it.
It is a very unfamiliar situation and kind of like when the police want to ask you questions.
Even if you are innocent you are still a nervous wreck.
Me. I know [your attorney] showed you a video and talked to you about it ahead of time. He probably told you all the same things I tell my clients.  What else could have been done to make you feel better about it?
Mom: Dress nicely but be comfortable, having a drink or light snack ahead of time.
Giving everyone a minute to acclimate , get comfortable.
Being able to have your dad there would have helped. Not sure if he could have been there?
Me: No, he couldn’t be in there with you. 
Mom: Ok, it would be a help if you could have someone like that, but since you can’t I guess that won’t help. And not having the other lawyer act like you are lying with looks or just the way he reacts. I kept feeling like he thought I was lying when I wasn’t. It is just such am intense situation , very nerve racking.

Me: So the other attorney was trying to put you on the defensive by acting like he didn’t believe you? 

Mom: I felt like he was, especially when he asked questions I couldn’t remember. I don’t know answers a dozen times starts to make you look like you’re lying, as he jots constantly and” uh-huhing” and “I seeing.” I think you can explain it all you want, but until someone does it, they will be nervous.

That’s most of our conversation. I did not include my mom’s other suggestions which rapidly devolved into the ridiculous, including:  being allowed to crochet while answering, having a “bowl of pretzels and a Coke handy,” and requiring opposing counsel to wear an Andy Griffith mask.

But, there were some pretty fair criticisms of why people are wary of attorneys. Plus, it is strange to do something you do every day–talk–but not be allowed to do it in a normal way. I think Mom is right: you have to do it to really get it.

Which brings me to my pregame process, in all its detailed glory. 

I like to send a pre-deposition letter, after I have scheduled a pre-deposition meeting. The letter includes a guideline pamphlet. This gives my client a chance to read about a deposition ahead of time, digest the intellectual part of it, and think about questions. Then, I do practice deposition questions with another attorney at my firm defending the pretend depo.

Part 1: The Letter  Ahead of the Meeting

Here is my enclosure letter, sent after our meeting is planned. Feel free to copy it and make it yours for free; however, I would not turn down something to barter in exchange, say…decent wine or a box of truffles. It’s only fair.

Dear Client,

As you know, your deposition is coming up soon. [It will likely be scheduled during the week of__] or [It has been scheduled for ____________, at _____________ for____________(time)].

[We have already planned to meet together on _____(date), at _____(location), for ___(time),  in order to go over the process of your deposition. You should plan to be there for about [2] hours] or [Please call or email me as soon as you can to set up a meeting].

During our meeting, I’m likely going to practice some questions and answers with you. I may even ask another attorney from my firm to practice with you too. The purpose of practicing questions is not to get coached on what to say (I always want you to tell the truth to your best ability); the point of practicing is to help you feel confident about how you are telling it.

Before our meeting, I would like for you to read the enclosed deposition guideline. While you read it, please make notes of any questions that you have for me. I’ll answer them at our meeting.

Your deposition is a very important part of this case and I appreciate you taking the time to do the best job that you can on it.

Best regards,

Awesomesauce Attorney

Part 2: Deposition Guidelines (sent with letter)

Please feel free to take these guidelines and make them yours. This is also free, but I’ll let your conscience be your guide about whether or not you should send the truffles I requested. If you have suggestions to make it better or you already use one of your own, please send it and I’ll publish them!

Deposition Guidelines

What is a deposition?

A deposition is a question and answer session, usually between the opposing party’s attorney and a witness, expert, or adverse party. The attorney asking the questions is called the “examining attorney.” The “deponent” is the person whose deposition is being taken. If you are reading this, that probably means you are the deponent!

Every word spoken at the deposition is typed up by a court reporter, who will give all of the parties a book of the questions and answers later. I will show you an example of this book when we meet together. Many times, depositions are also videotaped.

Before you begin answering questions, the court reporter will have you swear to be truthful, just like you would do in court. The testimony you give is “sworn testimony,” meaning that if you deliberately lie during your deposition, you could be in legal trouble later. It also means that your testimony is public record (unless I tell you it isn’t) and that it can be used in court, either for or against you.

Why is my deposition so important? 

Depositions are one of the main ways attorneys learn about the facts of the case.  No matter how much research we do, there are always going to be things we don’t know until we ask the people involved. For this reason, the goal of the examining attorney is to get the deponent to talk as much as possible. At our meeting, we are going to discuss preventing that.

Deposition testimony can be used against the deponent in court. Other things people say can be used against them too, but deposition testimony is more compelling than using words said in an email or conversation, because the deponent swore to tell the truth. If a judge or jury finds out that the deponent lied during a sworn statement, they have no reason to think that he will take his oath to tell the truth in court seriously.

Depositions are a way of telling whether or not the deponent will make a good witness in court. Whether, and how, a case settles often depends on whether a deponent would make a good witness at trial. Even if someone tells the truth, if they do not make a good impression, the opposing attorney will use that to his/her advantage to push for a bad settlement.

What should I wear? 

For the reasons I’ve already mentioned, it’s important that your appearance creates a good impression. For that reason, please be as personally clean and as respectably dressed as possible.

I have offered some very specific suggestions below. Please don’t be offended by this if you do not need my help; however, I have had many clients worry a lot about this issue or misunderstand me, so I have started offering detailed instructions to help those clients be more comfortable.

Expense

I understand that not everyone can afford to get an expensive suit or their nails professionally done. That is not required, even if you can afford it. All that I require is that you to make the best effort that you can. Incidentally, if your case goes to trial, these are the same guidelines.

Creating a good impression does not have to cost a lot of money. For instance: holes in clothing can, and should, be mended; shoes can be cleaned and polished at home; nails can be trimmed and cleaned at home; hair can be washed and neatly styled without paying anyone. These simple steps will go a long way.

Men 

  • Hair should be washed and trimmed, or pulled back neatly if long enough. This is not the time to try out a mohawk or shaving your head for the first time.
  • Hands and nails should be cleaned. Nails should be trimmed.
  • Facial hair should be appropriately groomed.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn a three-piece suit in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.

Women

  • Hair should be cleaned and neatly styled.
  • Hands and nails should be cleaned. If you wear nail polish, make sure it isn’t chipped. If you wear your nails short, make sure they are trimmed and clean. Longer nails should look nice.
  • If you wear make up, please be conservative.
  • Shoes should be cleaned & polished (if applicable) and comfortable. Your deposition could take a long time and wearing tight shoes would make it a very painful experience.
  • Clothing should be clean, smell fresh, be pressed, and comfortable. If you have never worn Spanx in your life, this is probably not the time to try it out. The best description of what to wear is “business casual.”
  • Piercings & tattoos: if you have a large number of piercings and some of them can be removed without causing harm or leaving a gaping hole, please do the best you can. Tattoos should be covered by clothing, if possible.

Comfort.

You should bring a sweater or light jacket. We never know if the room will be freezing or really hot, so plan accordingly.

Please also be sure to eat something before your deposition. If you have low blood sugar issues, please bring a snack with you.

If you take medications, be sure to bring them with you if you need them.

Steps to answering a deposition question.

1. Tell the truth. 

Please do not lie, even if you think it will help your case or someone else’s. It never turns out well, so just don’t do it. But, that does not mean that you have to volunteer information if it was not asked. You have every right to make the attorney ask you the right questions. It is not your job to sort everything out for them.

2. Listen carefully to the question.

3. Pause. Why?

a. Makes sure the attorney is finished asking the question.

b. Gives me time to make an objection if one is needed. If I object to the form of the question, wait until I finish the objection, and then indicate you that you may answer. If I object based on a privilege, I will instruct you not to answer the question.

c. Allows you to think about the question that was actually asked.

d. Makes it easier for the court reporter to create a clean record.

4. Answer the question asked. See the next section for acceptable answers.

5. Stop Talking!!! Don’t offer explanations or volunteer information beyond the question actually asked. If the attorney wants an explanation, she will ask for it.

Acceptable answers to most questions:

1. Yes-if the answer is definitely yes.

2. No-if the answer is definitely no.

3. I don’t know (if you are not sure, can’t remember, never knew and/or don’t know now).  Never guess if you don’t know. You aren’t being deposed for information you can guess. You are being deposed for what you know.

5. I don’t understand. If you didn’t hear it, ask the attorney to repeat it. If you didn’t understand a word they used, or the way the question was phrased, ask them to rephrase the question or tell them which word you don’t know. Attorneys are people and sometimes we ask bad questions. Everyone will appreciate you pointing it out, because that will help create a cleaner record.

6. May I take a break? If you need one, ask for one. This isn’t an endurance test, if you need a break take one, but if a question is unanswered, you will need to answer it before the break begins.

7. Correct/Clarify earlier mistakes when you realize you made one. It’s ok if you messed up an earlier answer. As soon as you realize you misspoke, let the attorney know that you need to correct your answer.

Why I will be quiet for most of you deposition. 

A real deposition is not like the ones you see on TV. Many deponents are worried that their attorneys are so quiet during their deposition.

I am only allowed, by law, to make limited types of objections. Objecting when I am not supposed to can get us both into trouble. Additionally, it ends up taking much longer and does not help the case.

The examining attorney is allowed a lot of leeway about what they ask. You may not see the relevance of their question to the case–I may not see it either–but that does not mean that you don’t have to answer it.

Please rest assured that even if I am quiet, I am listening, and if I am allowed to make a necessary objection, I will.

Tricks I use on other people that I do not want you to fall for. 

1. I am really nice to deponents to get them to warm up to me and talk a lot.

It does not matter how nice the attorney is–they aren’t your friend and you aren’t having a nice chat over coffee. They are interrogating you in order to find out things that could rip apart your case or defense.

2. I get people to “guesstimate.

This is an easy way attack someone’s credibility later. If you guess something was 20 feet away because the attorney tells you it’s ok to just guess and the actual distance turns out to be 2 miles, you are not going to look like someone who knows what is going on. If you don’t know, say you don’t know.

3. I play dumb to make deponents think I don’t know the truth.

I often act like I don’t know something, just to see if someone will lie. For instance, I often ask someone if they have ever been sued, or gotten in criminal trouble, and assure them that I don’t mean any offense, but I have to ask everyone. Often, I have that person’s entire rap sheet sitting right in front of me. People will often lie, thinking that I do not know the truth and that I will believe their answers.

4. I will bait an argumentative person.

If you start arguing with the attorney, they can get testimony out of you that reads terribly on a transcript. Don’t argue with the examining attorney: that’s my job!

Additionally, argumentative witnesses are very off-putting to jurors and judges. The same is true of sarcasm. It just does not read well on a transcript, so don’t use it.

5. I ask people if I can see something they have with them. Don’t agree to give up something if you are asked for it, like a license, or wallet, etc., unless I tell you to go ahead. Tell the examining attorney to ask me for it later. Exception: You can refer to notes if you need to during your deposition, but please know that they will be shown to everyone present and will be made an exhibit to your deposition. Please do not bring anything to your deposition that we have not explicitly talked about beforehand.

Stay Tuned for Part 3: The Meeting Agenda and Video Examples

Every Day Can’t Be the Best Day

Today is not going to be the best day. 

In the next 12 days, beginning today, I will spend a full 8 of them in depositions. That’s 25 depositions total, maybe more, depending on whether a witnesses changes her mind about refusing to attend. That’s a post for another day.

Let’s review my weekend: I worked late Friday night, into Saturday morning, and then accidentally slept until 1. Baby shower Saturday evening (which was really fun!) meant working really early Sunday morning. Check. Got up at 5 and got a lot of work time in.

But, I also planned a cookout at my house for Sunday afternoon, because I don’t feel like I’ve had a weekend unless I’ve overextended myself.

As I was doing some yard work for the cookout (read: remodeling my entire landscaping, because anything worth doing is worth doing right!), I pulled a muscle in my “gro-in” as we say in the South, and the symptoms kept getting worse, until it became a possible hernia, according to the WebMD. I didn’t even know that women could get hernias until I read that article, so at least that part was informative.

After texting with 4-5 doctor friends (apparently, I need a quorum to make health decisions), I went to the emergency room to get checked out. A full two minutes with the doctor confirmed no hernia, but that didn’t seem to make the pain feel any better, resulting in an entire night of tossing and turning, even with the muscle relaxer. And now I have 5-6 depos today, starting in a couple of hours.

I wonder how I’m going to sit still with the shooting pains running up and down my leg? Or maybe I won’t. Maybe I will just randomly keep jumping in my chair and freak everyone out.

Sigh. It makes me think of these Atmosphere lyrics:

“Every day can’t be the best day

Do what you can right now, don’t hesitate

That’s why we try to make love and get paid

Take the bad with the good, now let’s play”

Because that’s what lawyers do. We try to make the best of bad days. Usually, it’s our client’s bad day. But, sometimes it’s our bad day.

Here’s how I’m making the best of it:

1. I made French toast with leftover hotdog buns:

hot dog bun french toast

No. I didn’t eat all of it. I did eat most of it. It’s important to eat a lot before long depos because it sucks to be the person with the growling stomach.

2. Red Bull. I don’t dare try to take another muscle relaxer, so I’m going to go the opposite direction.

3. Review the file and thank my lucky stars that I prepped this round of depos on a slow day about a month ago. Working ahead definitely has its advantages. The only left to do is copy some exhibits and get them organized. In order to reduce the weight of my briefcase, I’ll be doing the entire deposition off of my ipad in Evernote and working with DocScanner, which will give me fodder for another post.

4. Remember that this too shall pass.

How do you handle the days that aren’t the best days? I would love to know. 

Forever Evernote, iPad Edition, Part 2: Skitch

hero_skitch

Skitch for Evernote

Today we are taking an in depth look at Skitch, which is an app that I use with Evernote. It’s made by the same people who make Evernote, so the integration is pretty much flawless. Skitch goes everywhere that Evernote goes, so let’s take a look!

This is going to be a photo-intensive post, so you should know that clicking on a photo will bring up a larger version of that photo.

Skitching with iPad

One of the biggest advantages of Evernote is the ability to use it on my iPad, and Skitch is a big part of helping me take photographic notes. It is downloadable at the app store, for free.

OK, I Got it, Now What? 

First, go to the skitch app and open it up:

Photo_Skitch_Document

Select the type of file you want from the main menu: 

This is the main screen. Just like Evernote, if you want to add a new skitch item, you click the plus button. If you want to discard an item, you click the little trashcan and an image like the one directly below will pop up and you hit the little “x” to delete it.

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The photo directly below this is the main menu. You can:  1. take a photo with your iPad; 2. choose a picture from your iPad or photo stream; 3. draw something on a map (the map is in Skitch); 4. start with a blank canvas; or 5. take a screen grab from a website. Let’s take each of them in turn.

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TAKE A PHOTO

This option is pretty self explanatory. Once you hit this button, it opens up into a camera app and you just snap a photo. The remainder of this type of file is identical to the “choose a photo” option, so scroll on down for more on that.

CHOOSE A PHOTO

For choose a photo, you are going to get an option about where to get the photo:

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You have to select the photo either from the camera roll (the photos that you have actually taken with your iPad) or your photo stream (all of your photos across all devices that support iPhoto or compatible apps like Social Folders). I selected Photo Stream:

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Now, you just select a picture and get to work!

You can make a blurry area for sensitive information that you don’t want someone else to see (or a stray ink mark on your wrist):

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You can draw arrows on your photos and choose the color of elements you want to add:

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You can crop photos:

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You can add highlighting and put it all together:

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DRAW ON A MAP

This is a hand little feature that lets you do the same features as the photos, but on an in-app map:

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START WITH BLANK

Another great feature if you are only looking for drawing tools:

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CAPTURE FROM WEB

I have used this handy tool during depositions when I have been doing internet research on something that has been mentioned. I can capture a screen grab of the website and highlight anything that’s relevant. Here is an example from a newspaper’s website:

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Now let’s see how it works in Evernote: 

Go open up Evernote from your main screen:

Photo_Skitch_Document

Select the “Skitch” notebook. You will get this notebook when you open a skitch account and link it to your Evernote account.

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THis is the view of the skitch notebook. I never re-titled the pictures I took for this post, so they all have the same name. But, ideally, you would give your photos unique names to use that search feature later.

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This is a note opened up:

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Because this is Evernote, you can share anything you create in Skitch with someone else, by either creating a public link to email or post, etc., or by emailing someone individually who has an Evernote account and letting them share the note in their own notebook.

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So that’s it! Now you are a Skitch Pro and hopefully it will help you get more out of Evernote. 

Stay tuned for some upcoming posts talking about the apps I use with Evernote to get the most out of it.

How to Defend a Deposition – Don’t Just Show Up and Play Lawyer

Philly Law Blog has a great, in depth post on depositions. This is a great companion to the “Quick and Dirty” piece I did earlier this month, as it actually takes the time to explain the entire process. Worth the read!

Philly Law Blog

[Editor’s Note: If you’re looking for my guide on defending depositions, it’s here.]

Yesterday Chris Bradley wrote a piece about how to defend a deposition. Advice? Just show up. Maybe wear a suit. And if you feel like it make an objection, but do it in a really lawyerly way. The other side will respect the fact that you’re there and put on a suit, and won’t take advantage of your witness.

Easy, right?

Errr… not so fast…

When it comes to clients, it takes more than just showing up and wearing a suit. What bothered me about this particular article is Chris decided to fake it with real clients. See, Sybil Dunlop wrote a piece last week about her “motion in lemonade“, which was funny. Why was it funny? Because it’s okay to mess up or puff yourself up before a lawyer who is supervising…

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