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.

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.”

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.

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.

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.

Why this contest? The list of legal websites on my browser’s “Favorites” tab is short. It includes reference sites, such as the California State Bar attorney search page (for finding lawyers and their background information), FindLaw, the federal court PACER electronic docket website (account required), the San Francisco Superior Court docket website (free), and Westlaw (account required).

One blog I go to regularly is Legal Pad, the blog of The Recorder, the San Francisco-based daily legal newspaper, which I subscribe to in paper form.

For general news, I go to SFGate.com (published by the San Francisco Chronicle). I also have the Chronicle delivered to my doorstep at home every morning.

As you can see, Newdorf Legal is a neophyte (with certain Luddite tendencies) in the online world. Hence, Newdorf Legal’s first contest is aimed at broadening my browsing horizons. The rules of the contest are:

• To enter, post a Reply/Comment to this article with the name and URL of the website and a sentence or two about what you like about the site.

• The site must be law-related.

• You can submit your own site or blog — but tell us if it is your site.

• Multiple Replies/Comments are allowed, but do not increase your chance of winning.

A winner will be chosen by Newdorf Legal on (or around) November 30, 2007 and announced on this site. Good luck!

Fine Print: There will be no more than one winner. The winner will be selected at the complete and sole discretion of Newdorf Legal based on the Newdorf Legal’s favorite entry. The decision of Newdorf Legal is final and non-appealable. Newdorf Legal retains the right to modify the rules stated above and in the Fine Print as it deems necessary. Newdorf Legal retains the right to remove any Reply/Comment, or not post any Reply/Comment, that it deems inappropriate in its complete and sole discretion. By entering this contest or submitting a Reply/Comment, you agree to be bound by the Rules and the Fine Print.

Deputy City Attorney David Newdorf (the author of this website) argued the case for the Sheriff. Sacramento lawyer Mark Merin argued for the plaintiffs.

You can listen to (or download) the 47-minute oral argument from the link on the Court Decisions page of Newdorf Legal. The argument was also reported in The Recorder, which you can read on the Articles and Commentaries page.

Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals.  In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim.  But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case.  Many times you will strike out.  That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam.  The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client.  And isn’t that the goal?

So here they are – the Top 10 Killer Deposition Questions:

• “Have you ever been arrested?”  (And the follow-up:  “Have you ever been convicted?”)  Opposing counsel may go ballistic on this one, but it is a proper question.  Remember, felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
• “Have you ever been deposed before?”  I ask this at the beginning of the deposition, as part of the standard admonition, when it sounds like an innocent inquiry related to the ground rules for the depo.  But if the answer is ”yes,” I always follow up later with questions about the prior deposition(s).  I also ask the related questions, “Have you ever testified in court?” and “Have you ever been a plaintiff or a defendant in another lawsuit?”  Prior testimony and lawsuits can be a treasure trove of accusations and impeachment.
• “Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?”  This question may uncover connections between a supposedly independent witness and the other side.
• “Did you meet with the other side’s counsel before this deposition?”  Pin down the number of meetings, where they occurred and how long they lasted.  This information can help dismantle the claim of independence.
• “Have you signed any written statements/made any recorded statements/spoken to any reporters about the events related to this lawsuit?”  To this list, you might add:  “Have you posted any statements about these events on any internet site?”  Of course, you will have conducted a search engine and, perhaps, database query on the witness as part of your preparation for the deposition, so you’ll know if he or she is lying.
• “Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?”  Okay, this is more than one question, but I had to combined them here to meet the 10-question quota imposed by the title of this article.
• “Tell me everything you did to get ready for this deposition.”  The answer can lead you to what the witness or opponent perceives as his or her weak spots, including areas of which you were unaware.  After all, it is only natural to prepare for the hardest questions or topics.  Remember to find out the specific documents reviewed, places visited and persons met with by the witness.
• “Was anyone else present when you met with your lawyer?”  If a third-party was present during the meeting, the witness may have waived the attorney-client privilege.
• “How did you find your attorney [doctor/chiropractor/therapist/expert]?”  This can lead to interesting prior legal issues, lawsuits or self-interest/improper involvement on the part of opposing counsel.
• “Do you have your driver’s license with you?”  If so, ask to see it.  Take down the personal information and, if appropriate, read it into the record.

That’s my “top 10″ — or so — general questions designed to uncover dirt.  Remember, there’s more to taking a deposition than impeachment.  For more depo tips, read Preparing Your Client For Deposition in Lit Tip Of The Week.

For honing overall deposition skills, I recommend two courses: the National Institute for Trial Advocacy “Deposition Skills” Training (17+ hours) and Robert Musante’s “Take A Killer Deposition” (full-day course).  I’ve taken both courses and received nothing in return for these recommendations.

At the Bar Association of San Francisco’s First Annual Jurisprudence Luncheon, the all-star panelists identified their favorite legal thinkers as follows:

1. Hon. Joseph Grodin - Cardozo.
2. Hon. Stephen Reinhardt - Dworkin.
3. Hon. Alex Kozinksi - Harlan II.

The question was posed by panel moderator Jim Brosnahan of Morrison & Foerster.