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Pro Deposition Tip–Only Answer the Question Asked

By | March 5, 2017
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It’s been written elsewhere about the things you should and should not do when preparing for your deposition. Simply Sessions Testimonyunderstanding 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:

  1. Listen CAREFULLY to the Question That is Asked.
  2. 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):

 

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Vigorous Legal Writing is Concise

By | November 24, 2016
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Vigorous writing is concise.

-Strunk and White (Third Edition, 1979)

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.

The red-lines for the 2016 rule change is here and below:

2016-colorado-litigation-motions-and-brief-length-changes

 

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Courts in the Community

By | September 13, 2015
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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

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.

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