What Happened To Heller Ehrman — And Who’s Next?

Until very recently, Heller Ehrman LLP was a mainstay of the San Francisco legal community.  Today it is gone.  Virtually overnight, a firm that in 2007 grossed $471 million and spun off $1 million in profits per partner has vanished. 

I’m not an alarmist by nature, but what happened at Heller – just a block from my own office at Bush and Montgomery Streets — can happen again, in any major U.S. city, with little warning.  It can happen at another firm as venerable and successful as Heller.  It can happen during good economic times or bad.  Not only can it happen, I’m quite certain it will happen.  Just wait and see.

By any measure, whether financial or professional, Heller Ehrman was successful to the end.  Heller was the victim of a classic run on the bank.  It started slowly with a handful of departures, none alarming by itself.  The departures continued in 2007, which saw a modest 3 percent decline in revenues and profits per partner. 

Then a larger group — 14 intellectual property litigators — decamped together to Covington & Burling this year.  The remaining partners became increasingly anxious and started walking toward the exits.  Soon the walk became a run as a mob mentality gripped the partnership, and no one wanted to be the last lawyer left.  The snowball effect will destroy even a fundamentally healthy organization.

What did Heller do wrong?  Nothing – other than to succeed and believe the law firm consultants who seemed to know what they were talking about.  Heller hired and trained the best lawyers. It expanded into the best legal markets.  It excelled in the most profitable practice areas.  All the while, it gave back to the community through significant pro bono work and a commitment to diversity in its ranks.  Heller’s success begat growth.

The larger it got, the more business it needed to sustain itself. The feeding of the mega-firm that Heller became required large clients, deals and cases, which it successfully attracted.  Several big litigation cases wrapped up in 2007, resulting in a down year.  Still, revenues for the year were only down 3 percent.  Who would walk away from a $1 million-a-year partnership over 3 percent?  But looking at competitors who saw a boom year in 2007, Heller’s results felt meager to some partners.

It’s no secret that the professional services sector is inherently cyclical.  As the economy cycles through boom and bust, different practice areas rise and fall.  Litigation and bankruptcy, for example, typically outperform other practice groups in tough economic times.  One of the business advantages of larger law firms over smaller ones is that the diversity of practice groups can smooth over some of the ups and downs.  One year, the transactional lawyer may bring in a lot of business.  Next year, it’s the litigator. 

The irony of today’s legal landscape is that smaller firms – the ones with larger swings in revenue from year to year – may be more stable than larger ones.  That is because once a law firm gets big – as in one of the 100 largest in the country – the bonds between partners are too weak to support even modest economic stress.  The partner down the hall or three floors up or in a different time zone isn’t interested in carrying the load for a group of strangers in another practice group who happen to be having a bad year. 

Unlike in years past, when many lawyers spent their entire career at a single firm, the typical big firm partner today may be working at his second, third or fourth firm since law school.  In a revolving-door partnership, it’s no longer a virtue to suffer a down year for the good of the firm.  If your group is raking in the bucks today, someone else will take you, and if they offer you more money, why not?  Don’t wait around, because the offer won’t be there next year when your red-hot practice area cools down.

What are the lessons of the Heller Ehrman debacle?  For many out-of-work Hellerites, the lesson may be that the “Manahattanization” of big law is pernicious, some would say evil.  Heller, like all the rest, gauged its success by the standards of big New York law firms that raked in profits per partner double or triple Heller’s.  Heller looked to New York not out of greed, but simply because that is the yard stick used by partners at nearly all of the 100 largest U.S. law firms.

This is not a morality tale.  Big law is not evil, just a little misguided at times.  Big Law is also different from the native culture of the Hellers of the world (who were themselves misguided at times).  I worked as an associate at O’Melveny & Myers LLP from 1994 to 2001.  During that time, I saw the partnership make a strategic decision to keep up with the New York firms.  The law firm consultants said “You’re either growing or dying.  There’s no middle ground.”  O’Melveny drank that cool aid, and has done very well. 

Seeing the success of many California firms that have moved East, who wouldn’t agree with the consultants that “Bigger is better”?  Now we see there’s more to it than that.  Growth is no guarantee of survival.  Heller Ehrman was middle of the AmLaw 100 pack in 2007 – ranked 55^th in revenue per lawyer, a key metric.  It had improved its rankings over the past 10 years from the number 60 spot in 1998.  It did everything right, but ended up in the dust bin.

The Heller story is tragic in the ancient Greek sense.  Classic tragedy depicts the downfall of a noble hero or heroine, usually through some combination of hubris, fate, and the will of the gods.  I’m not sure which of these was Heller’s downfall, but that doesn’t matter.  I’m more concerned about the walking dead at other successful law firms suffering from the “Bigger is better” delusion. 

It’s time for some firms to take stock and figure out another route to success before they grow themselves into the ground.

Newdorf Legal Wins $3.4 Million In Attorneys’ Fees For The City and County of San Francisco

SAN FRANCISCO, October 13, 2008 —A San Mateo County (California) judge ordered a large national law firm and a Texas developer to pay the City and County of San Francisco $3.43 million in attorneys’ fees and costs for their unsuccessful four-year legal battle against the San Francisco International Airport.  This is the largest fee ever awarded to the San Francisco City Attorney’s Office for its successful defense of a lawsuit.

Developer Airis Holdings LLC of Houston, Texas, and its attorneys from Duane Morris LLP had sued San Francisco for breach of contract stemming from the City’s rejection of a proposed $250 million air cargo facility at the airport.  The Board of Supervisors voted against the project in December 2003, citing concerns over the sufficiency of lease payments to the Airport, use of a private developer to build and manage the facility, and the fairness of the process by which Airis had been granted exclusive negotiation rights for the project.

The case is unusual both for the size of the fee award and the fact that a major law firm is liable for its opponent’s fees and costs, said San Francisco litigator David Newdorf, who represents the Airport.  Duane Morris entered into an arrangement with Airis whereby the law firm wrote-off $750,000 in legal fees owed by Airis for an assignment of the developer’s right to sue.  The developer and law firm then joined as plaintiffs in the lawsuit against the City.

In explaining the size of the fee award at a court hearing on Friday, October 10, 2008, San Mateo Superior Court Judge Carol L. Mittlesteadt said that the case had been “litigated, and litigated, and litigated” since it was filed in 2005.  She praised the legal work done by the San Francisco City Attorney’s Office as “excellent” and comparable in quality to major national law firms that undertake similar complex litigation.  Newdorf headed the defense as a Deputy City Attorney and continued to represent the City after he opened his own litigation firm in San Francisco, Newdorf Legal.

Aaron Peskin, president of the San Francisco Board of Supervisors, said:  “David Newdorf’s tireless advocacy made the difference and saved taxpayers millions of dollars.”

Airis Holdings LLC develops and manages air cargo facilities around the world.  Duane Morris LLP employs more than 700 lawyers in 24 offices from coast to coast in the U.S., in Europe and Asia.  Duane Morris was ranked the 71^st largest law firm in the United States based on 2007 gross revenue, according to American Lawyer magazine.

Duane Morris’s lawsuit against San Francisco was marked by ups and down for both sides.  The developer originally pressed claims for lost profits, breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel and unjust enrichment.  The developer and their lawyers sought $40 million and were motivated to take the case to trial, Newdorf said.

Facing numerous legal and factual theories, the City Attorney’s Office mapped out a legal strategy to eliminate the developer’s claims one by one, according to Newdorf.  After two years of discovery and pre-trial motions, the case had been reduced to only three legal theories and a monetary demand of $2.1 million.  At a five-week trial in May and June 2007, the City prevailed on two of the three claims, but was hit with a jury verdict of $1.05 million for breach of the implied covenant of good faith and fair dealing. 

The City filed a post-trial motion for judgment notwithstanding the verdict (known as a JNOV motion).  In granting the City’s motion, the judge ruled that Airis’s and Duane Morris’s claims and evidence were insufficient as a matter of law and threw out the verdict.  The Exclusive Negotiation Agreement between Airis and the City required the loser in any lawsuit concerning the agreement to pay reasonable costs and attorneys fees to the prevailing party.  The post-trial order granting judgment in favor of the City laid the groundwork for the fee application that was granted last week. 

“We’re of course disappointed, but we anticipated this outcome,” Duane Morris partner Oliver Lock Holmes told a reporter as he left court.  Duane Morris said it would appeal the rulings.

“Perhaps because they were so involved themselves in the case, Duane Morris didn’t have the detached judgment that an attorney should have about the strengths and weaknesses of its case,” said Newdorf. “The firm undertook a financial risk that I think was larger than they truly understood.”

The case had high stakes for both sides.  If the developer had won, the City would have been liable for the $1 million verdict and an additional $4 million to $5.5 million in attorneys’ fees and costs incurred by Duane Morris.  Including the fee award to San Francisco, the litigation has cost Duane Morris and its client $9 million or more, Newdorf estimated.

Newdorf said that Airis knew going into the negotiations with the Airport that there would be no deal unless and until the Board of Supervisors approved the project and that the developer bore the financial risk that the Board might not approve it. 

“This award is fair and reasonable compensation for the thousands of hours of attorney time required to fend off this lawsuit,” Newdorf said.  “But the taxpayers will never recoup the true cost of the litigation because the City will not be compensated for the thousands of hours that Airport and City officials were required to spend on this lawsuit.”

The lawsuit is Airis SFO LLC, Airis Holdings LLC, and Duane Morris LLP v. City and County of San Francisco, No. CIV 448274, San Mateo County Superior Court.

ABOUT NEWDORF LEGAL

David Newdorf has represented businesses and public entities in trials and appeals for 14 years.  He was a litigator at the San Francisco office of O’Melveny & Myers LLP and a trial attorney and supervisor at the San Francisco City Attorney’s Office.  He has been lead counsel in hundreds of lawsuits, including class actions and high-stakes commercial disputes.  He founded Newdorf Legal to provide business and public entities large-firm results combined with small-firm service and attention.  For more information, visit the firm’s website, http://www.newdorflegal.com.

Sample Deposition Questions In Personal Injury Cases

This week’s litigation tip expands on my article, “The Top Ten Killer Deposition Questions,” to provide ideas for basic deposition questions in a personal injury matter.

The most popular articles on this website have to do with depositions, which shows how important this discovery procedure is in today’s civil litigation practice.  Based on the most recent California court statistics,  between 8 and 12 percent of civil cases filed go to trial.  For the other roughly 90 percent of cases that settle or resolve through a dismissal or motion, the deposition might as well be considered the trial.

Defense lawyers typically ask these questions (at least I do when defending a case involving personal injuries), so plaintiff’s lawyers should review this list with their clients during preparation for deposition.  Also check out my article on “Preparing Your Client For Deposition.”

• “When did you first realize there was going to be an accident?  Tell me how you knew an accident was about to happen.”  This is a good opening question to set the stage.
• For trip-and-falls:
• “How did the accident happen?  What happened with your foot?  Did you trip?  Did you slip?  Did your foot catch?  Did some part of your body twist?”
• “Was there any foreign substance or article on the surface where you fell?  Was there anything unusual about the surface where you fell?”
• “How did you land?  On what part of your body?  Were you face up or face down?  Which direction was  your head pointed?  Which direction were your feet pointed?”
• For motor vehicle accidents:
• “What did you hear right before the accident?”  If the police report, photos or accident reconstruction report shows skid marks left by any vehicle, that would produce a loud, shrill noise that could be heard for blocks around.
• “Describe how your body moved during the accident.”  A detailed verbal description and/or the videotape of the deposition (if used) will be useful to a retained medical doctor, chiropractor, biomechanics expert or accident reconstructionist.  Sometimes the plaintiff’s description may contradict the laws of physics (such as when plaintiff says he fell backwards following a sudden bus stop) or be inconsistent with other evidence.
• “What parts of your body made contact with what parts of the interior of the vehicle (or sidewalk or floor)?”  You want to compare the purported points of impact with the medical evidence of the location of cuts or bruises.
• “When did you start to hurt?”
• “Did you have any swelling?  Where?  When did that occur?”
• “Did you have any cuts, bruises or scrapes?  Where? When did those become visible?”
• “Did anyone take any photographs at the location of the accident?  Who?  When?  When did you see these photographs?” 
• “Did anyone take photographs of your injuries?”  Ideally, you should have obtained these photos in response to document demands before the deposition.  Sometimes the plaintiff’s lawyer hasn’t done his or her job in gathering responsive documents, so you should always ask the plaintiff.
• “When did you first seek any medical treatment?  How did you get there?”  I’m always amazed how many accident victims call a lawyer before a doctor.  And there was the bus fall-on-board case I defended once where the plaintiff stood up, announced he had changed his mind and “wanted to get paid,” and laid back down on the floor to wait for the paramedics.  Meanwhile, he got out his cell phone and started calling law firms.
• “How did you find your doctor?”  Often the lawyer has referred the client to a favored treater, who will take a lien on the case instead of payment up front.  Many plaintiffs’ attorneys, however, frown on this practice.
• “How long were you at the doctor’s office for treatment?”
• “Describe your treatment.”
• “When did you last see your doctor?” 
• “Did your doctor prescribe any medication?”
• “Are you currently taking any medication as a result of this accident?”
• “How are you feeling today?”

Ninth Circuit Sends Mixed Signals In Strip Search Case

There were three opinions written — a majority, concurrence and dissent — on the 2-1 Ninth Circuit panel that ruled against San Francisco on the constitutionality of its former jail strip search policy.  As the Legalpad blog said in its headline:  9th Plays Jail Strip Searches Left, Right & Center.  Although on the surface, the Court did not upset 20 years of its strip search jurisprudence, two of the three panel members urged the Court to reject its precedents as inconsistent with the Supreme Court’s 1979 decision in Bell v. Wolfish.

The case is Bull v. City and County of San Francisco (9th Circuit August 22, 2008).  For a more detailed analysis, read Ninth Circuit Strip Search Law In Flux After Bull Decision.  Read the three opinions for yourself at the Section 1983 Civil Rights Law Reporter, a companion blog to Newdorf Legal.

What Every Litigator Can Learn from the Four Stages of a Marathon

People sometimes ask me what I think about while out on long runs.  Before the sore muscles and aching joints recede into memory, I thought I’d share some of my musings from the San Francisco Marathon on August 3, 2008. It occurred to me that long-distance running and litigation have a lot in common. So while bounding through Potrero Hill, on my way to Dogpatch and AT&T Park, I organized my thoughts into a list. I call it “What Every Litigator Can Learn from the Four Stages of a Marathon.”

The four stages are: Training, The Starting Line, Hitting the Wall, and The Finishing Kick.

1. Training. “Train how you fight.” I learned this phrase from an Army lieutenant, but the concept is universal. When soldiers train for battle, they don’t wear comfy sweats. They wear full battle gear, including those heavy backpacks. At finals time in law school, I used to see my classmates flipping through index cards with phrases like “Promissory estoppel” on one side, and definitions on the other.  Very useful if you’re taking a test about flipping flash cards.  But if you’re taking an essay exam, better to go into the library, pull out old exam questions, and start writing – with a timer, of course.  When you do it this way – when you prepare by doing the same things, in the same way, as you would during the race (or the test or whatever event you’re training for) - you take your preparation to the next level.  You learn the material at the muscular, maybe even cellular, level.

Training for a marathon?  Don’t do it at the track, do it on the course.  Come race day, I had run ever mile of the course multiple times.  It was useful, as I’ll explain in Stage 4, because I could visualize the road ahead.  For litigators, that means do moot courts and mock trials, or at least roundtable your case with a room full of colleagues.  When you set up the moot court, make it realistic.  Wear a suit – you will in court – and stand up.  You don’t learn to think on your feet while sitting in a chair.  Recruit three or more “judges” who’ve read the briefs and are ready to pepper you with smart, tough questions.  You’ll know you prepared properly when the real argument was easier than the practice one.

2. The Starting Line.  It’s a lot of fun when the starting gun fires and the spectators cheer you on.  You feel great!  You run faster! You can keep this up forever!  But most distance races like most lawsuits are not all flat and easy.  There are hills coming, especially in San Francisco.  But more of that in a moment.  For now, enjoy!  Celebrate your victories along the way.  You passed the 13.1 mile marker — half way done and ahead of pace?  Good job!  Congratulate the runner next to you and suck down a tasty Double Latte (the flavored PowerBar sports gel, that is).  Make sure to reward yourself – and your team –with recognition for a job well done at every stage.  Whenever possible, I celebrate the victories before learning the outcome.  You could lose that motion, and a “defeat” party just isn’t as much fun as a victory party.  If things are going really badly, I celebrate the small wins.  The judge granted my unopposed request for three extra pages on the brief!  Yahoo!

3. Hitting the Wall.  Now it’s mile twenty-something.  The adoring crowds are gone, along with your energy.  You’re passing through a gritty industrial district.  What seemed like a personal record in the making early in the race is turning into a disaster.  Or it’s well after midnight, your office staff left hours ago, your colleague’s relaxing on a beach in Hawaii, and the brief is due tomorrow.  Will you even finish?

Every runner reaches a point of exhaustion and fatigue where the temptation is to take the easy way out.  It happens in every race and this time was no different.  My desperation peaked at miles 20 to 22, when every inch of me was screaming to stop.  In the mind vs. body battle for dominion, it seemed like a palace coup was about to succeed.  My walking “breaks” became longer and longer until finally I was just walking.  I thought I had nothing left.

Runners call this “hitting the wall” – the dreaded point in the race when your muscle glycogen stores are depleted and a feeling of overwhelming fatigue engulfs you.  You almost cannot take another step.  Litigators don’t have a name for it, but the same feeling is known to develop over the course of a long case.

4. The Finishing Kick.  But wait.  Is that the 22-mile marker ahead?  Yes!  Because I know the course backwards and forwards, I know that I can almost see the Bay, which means I can almost see the Ferry Building – and that’s the finish line!  I look at my watch and note that I’ve been running for a little more than 4-1/2 hours.  I do the math, and realize that I can still make my projected finish time.  Somehow, somewhere, I find the energy to start running again.  I visualize myself on the winner’s podium.  I know the winners finished before I was half-way done, but logic has nothing to do with it.  In my mind, the theme song from “Rocky” blares.  This is my finishing kick.

And like the song that repeats over and over until I cross the finish line, it’s all in my head. And that’s the point.  Long-distance running and litigation are about mental challenge, mind over matter.  Sure, a marathon or a trial requires training and preparation.  You’d be an idiot to go out and run 26.2 miles if you haven’t run four laps around the track since high school.  But getting to the finish line is more about mental toughness than physical conditioning.  The tests come at every stage.  It may come before sunrise on a Sunday when the alarm clock goes off.  Do you hit the snooze button or do you get out of bed for your training run?  Do you settle for the brief that’s “good enough,” or do you keep searching for the winning argument?

It’s about overcoming the voices in your head telling you:  “It’s too hard,”  “You can’t do it,” “What were you thinking?”  The same mental toughness that powers you to the finish line helps you deal with cantankerous counsel, contrary judges, and demanding clients.

So that’s what I was thinking as I ran down from Potrero Hill toward the waterfront.  And by the way, I finished my third marathon in 5:28.  Not a time for the record books – unless you happen to be me, in which case it is 11 minutes faster than my best previous time.

Ninth Circuit affirms San Francisco’s victory in the “Fajitagate” case.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of San Francisco in a civil rights lawsuit dubbed “fajitagate.”  In an unsigned six-page memorandum decision issued July 23, 2008, Judges John Noonan, Sidney Thomas and Jay Bybee held that the City was not responsible for any injuries plaintiffs may have sustained in an altercation involving three off-duty San Francisco police officers.  In a novel claim for liability involving off-duty officers, plaintiffs argued that the off-duty officers were emboldened to attack the two plaintiffs because San Francisco had not properly disciplined one of the officers — the Police Chief’s son, Alex Fagan, Jr. — for allegedly improper use of force while on duty.

The judges wrote:  “Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a City policy of inadequate discipline for officers’ on-duty misconduct was the proximate cause of three off-duty officers’ decisions to assualt the Plaintffs for their bag of steak fajitas.”

Scott Graham, editor of The Recorder, writing in his paper’s blog, opined that with this decision, the case that ignited a storm of media attention “has ended with a whimper.”

Former San Francisco Deputy City Attorney David Newdorf (who with Deputy City Attorney Sean Connolly represented the City in five related S.F.P.D. excessive force cases) briefed and argued the case before Judge Jeffrey White in the U.S. District Court and in the Ninth Circuit.

State Bar Appointment for David Newdorf

The Board of Governors of the California State Bar appointed San Francisco attorney David Newdorf to the Executive Committee of the Litigation Section at its July 2008 meeting.  The three-year appointment begins September 28, 2008.  A former San Francisco Deputy City Attorney and a lawyer at a major international law firm, Mr. Newdorf started his own law firm, Newdorf Legal, serving the litigation needs of businesses and public entities.

Established in 1983, the Litigation Section is a voluntary membership association for attorneys who share an interest in litigation. The section is led by a fifteen-member Executive Committee comprised of attorneys from across the state and by a  ten-member panel of advisors who are prominent attorneys and state and federal judges.

The Litigation Section, with 11,000 members, is the largest section of the State Bar.  According to its mission statement, the Section aims “to promote excellence in all areas affecting dispute resolution, including the protection of the rights of all litigants, pre-trial discovery, the expeditious trial of lawsuits, alternative dispute resolution, effective judicial administration, uniform rules of court, and the protection and preservation of the independence of a judiciary of high quality.”

Announcing Newdorf Legal, The Law Firm

First, there was Newdorf Legal, the blog.  Now, there is Newdorf Legal, the law firm.  I am pleased to announce the formation of my law firm, Newdorf Legal, as of July 14, 2008.  I am continuing my practice in civil litigation in the state and federal trial and appellate courts.  I represent business and public entities in complex commerical disputes, class actions, and civil rights litigation.

My office is located in the heart of San Francisco’s financial district.  For more information, please visit my new law firm website at www.NewdorfLegal.com, or call me at 415-357-1234.

Oral Argument Set In Ninth Circuit Appeal Of ‘Fajitagate’ Case

The U.S. Court of Appeals for the Ninth Circuit has calendared oral argument in the federal civil rights claims over a 2002 altercation between three off-duty S.F.P.D. officers (one of whom was the son of the assistant chief) and a San Francisco bartender and his friend. The media dubbed the case “fajitagate” because the fracas supposedly started over a bag of steak fajitas outside a Union Street bar. The melee fueled a perfect storm of headlines, hearings, lawsuits, investigations and indictments. But when the dust settled, most of the various civil and criminal charges against the City and SFPD officials and officers had been dismissed by judges or rejected by juries. Some cases, including this one, are on appeal.

In Snyder and Santoro v. City and County of San Francisco, U.S. District Court Judge Jeffrey White held that plaintiffs could not bring a federal civil rights claim over private, off-duty conduct of police officers. Plaintiffs had argued that they should be permitted to bring a lawsuit based on the SFPD’s alleged lax discipline for on-duty misconduct, which they contend caused the off-duty altercation. Plaintiffs’ appeal from Judge White’s decision in the “fajitagate” federal civil rights lawsuit will be argued before the Ninth Circuit at Booth Auditorium, Boalt Hall, on the U.C. Berkeley campus in Berkeley on February 13, 2008.

Defendants are represented by Deputy City Attorneys Sean Connolly and David Newdorf. Plaintiffs are represented by San Francisco attorneys John Houston Scott, Eric Safire and Dennis Cunningham.

Preparing Your Client For Deposition

Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience.  At the end of the day, a weak performance or just one poor answer can sink a case.  But even with stakes this high, most lawyers do not spend enough time preparing the client to testify.  While the demands of your practice, your client’s calendar, or the legal budget for the case may not allow it, ideally you should spend at least two hours of  preparation with the client for each anticipated hour of deposition.  And sending your client home with a stack of documents to review is no substitute for the face-to-face prep session.

Here is a basic outline and some tips for your deposition preparation session with your client.

• Start with the basic procedure.  Let the client know the who, what, when and where of the deposition.  Who will be present?  Explain the role of the court reporter.  Tell the client whether the deposition will be videotaped.  Explain the oath.  Go over the Q & A format.  Explain that you may be stating objections for the record, but that the client will have to answer the question except in the rare cases when you instruct him or her not to answer.  If this is the witness’s first depo, he or she will appreciate learning about the basics.  The client will likely have some anxiety and letting hime or her know what to expect will lessen the unease.
• Give a sample admonishment.  Come deposition day, it is likely that the lawyer who noticed the depo will start with a standard list of “ground rules.”  Explain these and let your client hear a sample admonishment during the prep session.  When the client hears these same standard instructions from the opposing lawyer at the beginning of the actual deposition, she or he will think “I’m prepared for this.”  That will calm any jitters and allow the client to focus on what’s important.  Don’t forget to ask your client during prep about medication he or she takes.  Medical conditions can be a sensitive issue, and if your client is taking prescription medication, you don’t want to the client to be surprised and embarrassed by this common question.
• Explain how the deposition fits into the end goal of “winning.”  Remember:  the deposition is opposing counsel’s opportunity to learn about your case.  If he doesn’t do a good job, is that our problem?  Of course not.  At the deposition of our clients, our strategy is defensive.  I often use the analogy that the depo is like a game of “20 Questions.”  If the questioner doesn’t ask the right questions, he loses.  But the first instinct of the client — especially if this is her first encounter with the other side — may be to attempt to:  (1) persuade the other side; (2) charm the other side; (3) argue with the other side; or (4) tell her entire story.  It is your job in prepping the client to get her to resist any of these common traps.  Cases are not won at the client’s depo, but they can be lost.  Let the client know that this isn’t the time to “tell her story.”  There will be other opportunities — including arbitration, mediation or trial.
• Keep answers short.  The best deposition answers — from the point-of-view of the defending side of the table — are the shortest, truthful answers.  Tell your client:  Don’t explain.  Don’t speculate.  Don’t help the opposing counsel.  Explain the difference between a “guess” and an “estimate.”  I use the example of the conference table:  “You may not know the exact dimensions of the table in this room, but you could give an estimate.  But if I asked you ‘How big is the conference table on the floor below?’ — your answer would be a guess because you’ve never been in that conference room.”  (If anyone one has another favorite example, let me know.  I’m always looking for fresh material.)
• The best deposition answers are the ones that answer the question directly and briefly.  For example, the proper answer to the question:  “Do you know what time it is?” is either “Yes” or “No” — but not “10 a.m.”  Why?  Because the latter answer volunteered information that was not called for by the question — a basic depo mistake.  Your client may protest that the deposition will take longer that way.  No one wants to spend any longer than necessary in a depo, and your client may think:  “I have nothing to hide. If I just tell the lawyer everything I know, we can all get out of here sooner.”  Wrong!  Every volunteered tid-bit will be written down by the opposing counsel and lead to another line of questioning.  Though counter intuitive to most clients, you must emphasize that shorter answers lead to shorter, better depos. 
• The “perfect” answers.  I tell clients that the only “perfect” depo answers (if they are truthful ones) are the following:

“Yes.”

“No.”

“I don’t know.”

“I don’t recall.”

“Can you rephrase your question?”

As for the last answer — “please rephrase” — tell the client to never answer a question he doesn’t understand. It’s the questioner’s job to ask understandable questions, and it’s dangerous to answer a question if one doesn’t know what it means. Explain the difference between “I don’t know” and “I don’t recall.” Some witnesses will overuse these two answers because they are easy. That mistake will come come back to haunt you at trial when the client’s memory and knowledge has been miraculously restored.

• Review important documents and all prior statements.  During prep, you and your client should go over all of the witness’s own prior taped or written statements on the subject of the lawsuit.  Deposition testimony that is inconsistent with prior statements can lead to uncomfortable cross-examination at trial.  And in prepping for the depo, don’t just give your client a stack of documents to review in his office or at home.  Having the client read them on his own — if he actually does it — is better than nothing, but not much.  You need to read and discuss the important documents with your client.
• Practice Q & A.  This is useful and should be done.  But if you anticipate that your client will be vigorously cross-examined at depo, get another lawyer to deliver the tough practice grilling.  For example, O.J. Simpson’s dream team — not lacking in cross-examination skills — brought in Berkeley criminal defense maven Cris Arguedas to do the deed.  Why?  Because being subjected to cross-examination isn’t fun.  Even knowing that this is “practice” and you’re really on his side, your client could easily resent getting the third-degree from his own lawyer.
• Don’t forget to review the “Top 10 Killer Deposition Questions” with your client.  Read my list of “killer” deposition questions in last week’s Lit Tip Of The Week.  And prepare for other expected tough questions.
• Videotaped depositions.  If you know the deposition will be videotaped, tell your client.  Instruct your client to dress in trial attire.  For men, that usually means suit or jacket and tie.  For women, a dress suit.  If your client has any distracting mannerisms (such as resting chin on hand or not looking at the questioner), tell her what they are and to resist them while on camera.  Also, if the depo will be videotaped, warn your client not to turn and look at you before answering.  This gesture makes the witness look like she is looking to her lawyer to tell her what to say.

Every case is different, so consider these rules as guidelines.  If you have a good reason to deviate from these suggestions — go ahead.  But you should at least know and understand the conventional wisdom before altering it.

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