It’s been written elsewhere about the things you should and should not do when preparing for your deposition. Simply understanding what a deposition is and the role of the witness is critical. But the next layer of deposition preparation geared specifically toward your case is implementing strategies for answering all question types.
One of the most fundamental strategies that every trial lawyer worth their salt tells every client preparing for a depo or preparing for cross examination at trial is as follows:
Listen CAREFULLY to the Question That is Asked.
Answer ONLY the Question That is Asked (and NO MORE).
Here’s why: When the deponent starts to meander past the question ask and embellish, argue, attempt to persuade, or simply add their own “color commentary” things start to happen. At best, such wandering “off script” creates fertile ground for what could be devastating follow up questions the questioning lawyer did not think to ask. At worst, you could get caught straining the truth or raise questions as to whether your answer is truthful at all. Attorney General Jeff Sessions, in what was called a rookie mistake over at Above the Law, did just that. Whether Sessions lied not is not my point. His wandering off into new territory in his senate confirmation hearing when asked a question by Sen. Al Franken is now being scrutinized for reasons that were entirely avoidable.
Essentially, AG Sessions was asked if he learned that members of the Trump campaign communicated with the Russian Government, “…what will you do?” It was a simple question: What will you do? Sessions didn’t even answer the question asked. In what is his “answer” (if you can even call it that), Sessions appears to address an entirely different issue, stating to Sen. Franken essentially: a) I’m was a member of the Trump campaign (not asked!), and b) “I did not have communications with the Russians” (also not asked!).
Here’s the clip of the exchange and you can view it for yourself (question starts at 2:24):
“The job of local counsel is to make sure that the out-of-state-guy doesn’t screw the pooch on rules of procedure. And here, the rules of procedure were clear: It was unnecessary (and damaging) to have Melania confess her true motives of using the White House for profit, and unnecessary to potentially subject her to sanctions for an impermissible ad damnum clause.”
From blog post by New York Personal Injury Attorney Eric Turkevitz of the Turkevitz Law Firm. The post analyzes the statements on damages contained in the defamation lawsuit suit filed on behalf of Melania Trump in Manhattan, criticizing the attorneys’ decision to claim the loss of “multimillion dollar business relationships” and the “once-in-a-lifetime opportunity” to cash-in on being First Lady as unnecessary allegations that should have been avoided by local counsel due to the negative news coverage the statements received.
Winning a commercial collections case requires strong case management from the outset. Clients wishing to maximize the value of their case are integrally involved and view their time spent with us on their case as an investment in the future of their business. Our business clients’ time is helpful to us in many ways, and those that participate as outlined below truly maximize their outcomes and return on their dollars spent on attorney services.
We ask our business collections clients to begin by cataloging documents and other factual information: correspondence, business records, personal recollections. The business owner knows their operations better than we ever will. The business owner understands their records and can interpret them in ways we never could, and more efficiently than we are able. The client knows the context of the discussions around most documents. Using this initial set of documents and the client’s prepared “executive summary” (personal recollection and timeline), our office assists the client in identifying and gathering other important documents that may be in the hands of third parties (phone records, bank records, building department files, etc.) as we mount further evidence to build the commercial collection file.
We also ask that our clients assist in the early evaluation of the case by providing unfavorable information upfront. It will inevitably turn up later or be raised by the defense. Most commercial collection cases have some detrimental facts or negative components, whether it is an outright counterclaim, defense or simply a challenge to proving the amount owed (e.g., proof of work provided or goods delivered).
Sometimes raising the negative issues with us is embarrassing. But we understand from the outset that much of what is said in defense of a commercial collection claim is posturing. Our job is to help the business overcome those defenses, and maintain the value of the claim. The business owner may be embarrassed that they’re speaking with an attorney about a collection case at all. Because something went wrong, at some level, the company is owed money. The right business decision is in selecting efficient and experienced commercial collection counsel that can guide you through the process. We’re not looking back on such past mistakes, but looking forward for recovery and maximize return on the business investment in us. For clients that are interested we often debrief at the conclusion of the case or if other concurrent matters are ongoing, advise our clients as to how to change business practices to mitigate against the need to hire us the next time.
As to why the business needs to hire an attorney to collect a debt, we’ve seen virtually all reasons. Maybe the AR was let out too long, or too much work was performed without assurances of payment or proof of the company’s client’s ability to pay to begin with. Maybe there was doubt at the outset as to whether the customer or client could pay at all. Where these issues remain relevant in collection litigation and need to be revealed are in the focus on collecting a successful judgment. Even if there are no negative facts, we must realistically assess the ability of the defendant to pay if the dollars spent on litigation are to be viewed as an investment by the business client as they well should.
Examples of negative circumstances and facts that should be discussed at the outset are:
Whether there have been any allegations of defects or deficiencies.
Whether there has been any history of defects or deficiencies.
What were the discussions and representations made about the quality of the work or the amount of work to be performed.
Whether there are emails or text messages surrounding these discussions.
Above is just a small sampling of the issues that are important to discuss at the outset of the commercial collection litigation case. Our clients’ investment of their time, energy, and knowledge starts in the initial case evaluation—it is only by investment of these resources that makes the financial investment well-spent. It will not only help prove your company’s case, it will increase its overall value to be prepared and demonstrate confidence in the collection claim in light of any minor weaknesses.
The Colorado Rules of Civil Procedure have varied in its recommended length of court-filed motions and briefs in civil litigation. I’ve always figured that the judges know what they think, and what they want, when it comes to the piles of paper we litigators throw at them. I also know that our Colorado district court judges do not have the level of law clerk support as that found in the federal courts.
C.R.C.P. 121 Sec. 1-15 has varied over recent years, suggesting 15 pages be the maximum, then amending that language to encourage greater brevity stating, “Motions or briefs in excess of 10 pages in length… are discouraged” (emphasis added). Going from 15 pages (often a challenge) to 10 was an encouragement from the courts I attempted to take to heart. That the pleadings in excess of 10 pages were merely discouraged (not a mandatory cap), sometimes my pleadings drifted over the mark. I attempted to make that a rare occurrence.
Today, the rule in Colorado litigation is hard-and-fast. Without the court’s permission otherwise, ordinary motions and briefs are limited to 15 double-spaced pages (not more than 4,000 words) and reply briefs are limited to 10 pages (but not more than 2,500 words). Motions for summary judgement are limited to 25/15 pages respectively.
While federal district court judges in Colorado have their own standards, the reasoning for limiting the length of motions and briefs is the same. If the reasons are not clear, this benchslap from from U.S. District Court Judge R. Brooke Jackson as reported recently in the Aspen Times pretty much sums it up:
…please understand many, many lawyers believe their issues are so important and difficult that more pages are needed. What they don’t realize or won’t accept is that judges do not agree. With the volume of cases and motions presented to this court, I frankly do not have the time and perhaps not the patience to wade through 44-page briefs. If you can’t explain your position and provide citations to the key authorities in 15 pages, then in my view the problem is yours. A longer brief is not a more persuasive brief, either in general or in this case. If anything, it makes me wonder whether you really do have a good, clear legal argument.
News yesterday out of the Trump University litigation was that the “University” is requesting the judge to disallow “evidence and argument relating to statements made by or about Mr. Trump outside of the adjudicative process..”
What is Trump University Seeking to Preclude?
Some of the examples of the evidence in the civil case against Trump “U” that the defense seeks to preclude are:
Statements by campaign surrogates
Audio and video recordings made or publicized during the campaign…
Comments about this case or the Court…
What is a Motion in Limine to Precluded Evidence in a Civil Lawsuit:
The type of evidentiary motion filed in this civil case is generally called a “motion in limine.” In common vernacular, such “motions in limine” are a “a pretrial motion to limit or exclude evidence.” Bd. of Cty. Comm’rs of Cty. of Morgan v. Kobobel, 176 P.3d 860, 862 (Colo. App. 2007).
Why Are Motions Filed to Preclude Evidence?
Used primarily in cases that are heard before the jury, the parties request that the judge rule on certain evidence prior to trial before evidence (such as documents or testimony) is seen or heard, or even a peep uttered by the lawyers before the jury. Motions in limine are routinely filed in criminal and civil cases, including business litigation and other commercial cases. Applicable standards Colorado courts would apply to such request, which would be similar under the Federal Rules of Evidence in the Trump U case (set for trial in San Diego), are generally that the evidence is not admissible and will be precluded if it is irrelevant (under Rule 401), unduly prejudicial (under Rule 403), or improper character evidence (under Rule 404).
Applicable Law of Evidence for Civil Litigation:
As this case is essentially claiming fraud and misrepresentations about the offerings of Trump University, the theories for precluding the types of evidence listed above if under similar doctrines of Colorado law are that:
Rule 401: “Evidence is relevant, in the logical sense, as long as it is ‘evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 401)
Rule 403: “[R]relevant evidence must be excluded, if “its probative value is substantially outweighed by the danger of unfair prejudice.” Id.. People v. Martinez, 74 P.3d 316, 322 (Colo. 2003) (quoting CRE 403).
Rule 404: Guided by the principles above, the application of Rule 404 (Character evidence) is trickier as it tends to help a judge or jury determine what whether the evidence (that is relevant) ought to be believed. Frequently, this type of evidence appears, on its face, to be wholly irrelevant as to substance, but its relevancy may be admitted to assist the jury in evaluating the credibility of a witness.
In general, we favor the admission of relevant evidence but exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ….” CRE 403. Consistent with this principle, evidence of a person’s character or character trait is barred under Colorado Rule of Evidence 404(a) for the purpose of proving that on a particular occasion the person acted in conformity with his character or character trait. CRE 404(a). Exceptions to CRE 404(a) apply for limited purposes and in limited circumstances. See People v. Gaffney, 769 P.2d 1081, 1085–87 (Colo.1989). As relevant here, the exception provided by Rule 608 permits the admission of opinion or reputation evidence to bolster or impeach the credibility of a witness.
The long, slow grind of civil litigation was recognized decades ago by the Colorado General Assembly in enacting Section 13-1-129, C.R.S. (originally enacted in 1990). Things have only gotten worse.
Recent statistics I’ve reviewed from the U.S. District Court for the District of Colorado in Denver reveal that the average civil litigation docket involving at least one discovery dispute is over two years from filing to trial. I estimate no less than ten months to trial for business litigation in Colorado state courts assuming the case can get underway and months are not consumed on the front end dealing with motions to dismiss. My experience is that the Colorado judiciary’s goal to get a civil cases to trial in Colorado state court within a year is merely aspirational, particularly in complex civil litigation requiring trial settings of greater than 5 days of trial. In such cases I expect 12 – 14 months out for a trial date.
The statute referenced above, titled “Prudential trial Dates,” directs the district courts in Colorado to set a civil trial date no more than 119 days out for individuals in the following categories:
individuals at least 70 years of age upon a finding of the court that the claim brought in the civil litigation is meritorious (in such cases the court “may” grant the motion);
individuals able to demonstrate by “clear and convincing medical evidence” that that raises a “substantial medial doubt of survival of that party beyond one year” and the court is otherwise satisfied that an expatiated trial setting serves “interests of justice” (in such cases the court “shall” grant the motion).
While the above applies only to individuals, such may be implicated in Colorado commercial litigation where principals, owners, or individuals doing businesses under a “d/b/a” are parties to business lawsuits. Once the trial date is set, the case is on a pure rocket docket, the Colorado General Assembly specifically directing that all accelerated litigation and procedural deadlines be held firm:
The court shall establish an accelerated discovery schedule in all such cases. No continuance shall be granted beyond the one-hundred-nineteen-day period except for physical or mental disability of a party or a party’s attorney or upon a showing of other good cause. Any such continuance shall be for no more than one hundred nineteen days, and only one such continuance shall be granted to a party.
The Colorado Supreme Court and Court of Appeals present a valuable program providing public look inside the appellate advocacy process. As described by the Court’s website,
In the program, Courts in the Community, each court travels at least once a year to a different high school to hear oral arguments in two actual cases at each location. In fall 2015, the Colorado Supreme Court will visit East High School in Denver, and divisions of the Colorado Court of Appeals will hear arguments at the Denver School of Science and Technology and at Rangeview High School in Aurora.
The briefs (including amicus breifs) are available for students online, and these actual cases are argued. The two cases set for argument on September 29th at Denver’s East High School are a case involving an avalanche in-bounds at Winter Park and a criminal case addressing sufficiency of evidence.
Denver East High School credit: DPS
When I was in law school at CU, panels of the Tenth Circuit and the Colorado Court of Appeals sat for arguments and students were invited to attend. It was certainly one of the most memorable and valuable days of law school, as I imagine this will be for these high school students as well. It is an important outreach effort, and one that I think deepens the public’s information base and knowledge of the judiciary and the adversary process, in both civil and criminal context and the importance litigation to addressing important questions of law. The Court is applauded for this program, and I’m happy to read about its longevity and the Court’s commitment to its sustained future.