Printed September 2020 in the South Dakota Defense Lawyers Association Newsletter
My law practice began after 8 years of service in the United States Air Force, most of which involved flying, including the B-1 a/k/a “BONE”. Flight school developed numerous skills, but one skill that I consider vital to how I practice law: work, plan, prepare from your target backwards. Flying the BONE, this began with the time on target. The route must then account for known and unknown defensive maneuvering, air-to-air refueling, other aircraft in the “package” to complete their assigned missions, etc. Without intelligence briefings, higher headquarters priorities, in-depth knowledge of the B-1 and its weapons, this would have been impossible to complete. Thus, one learns to synthesize large quantities of information and plan simultaneously. After accounting for all this, a take-off time would be determined.
I tend to approach depositions and their preparation similarly. Just as mission planning a B-1 sortie obviously started with the B-1 and my assigned target, deposition preparation begins with the elements foundational to the case, the rules of civil procedure and the case’s legal theories. Like flying, there are ways to efficiently process information while planning. Depositions may be a target in and of themselves, but they may also be part of a larger case preparation phase. Thus, up to the point of deposition, your case may look good because it has not been challenged yet.
The legal theories establish the basic parameters of my initial preparation. Then, I establish the purpose of the deposition, even if it is rudimentary at first, based on prior formal and informal discovery. This includes anticipating witnesses, testimony, and examining their value to the case atlarge, and evaluating strengths and weaknesses. This information is sourced from discovery, pleadings, or affidavits. There are likely to be factual gaps that need to be identified and assigned to one or more possible witnesses, if possible. From those witnesses, deponents are identified.
With the deponents identified and known facts and gaps in information assigned, I determine what I need each deponent to support, deny, defend, etc. This becomes the basis of my deposition
outline and my questions. Outlining the deposition by facts, including exhibits, much like a direct exam, enables me to see and anticipate various narratives. For case-sensitive issues, scripting questions is helpful, even if not asked word-for-word at the deposition. As part of this preparation, I try to anticipate how each deposition may be used throughout the remainder of the lawsuit because once concluded, a deponent is not likely to be deposed again. Thus, my deposition is at once its own target and a necessary element necessary to strike at a larger target.
Since depositions may ultimately serve multiple purposes and roles, knowledge of the case cannot be understated, or overstated. Knowledge of the case always flows through the background
of the deposition. The hours spent before the deposition analyzing facts, outlining facts and formulating series and lines of questions, and determining scripted questions, if necessary, establish and sharpen themes, and create the memory aids used to navigate the geography and topography of the deposition.
Though I no longer fly, the skills I learned as a military aviator are invaluable as a litigator. Mission planning and learning to work from the target backwards to take-off is one skill that
continues to serve me well as an attorney, whether taking a deposition or preparing for cross-examination. Early on in B-1 training, we trained to static, stationary targets. In combat, there were times we engaged dynamic, moving targets. I have seen in just a few short years of practice that depositions may be more dynamic than static. But even with a dynamic target, the principle remains: know what you want to accomplish with your case and for your client and work back from there. Ultimately, even moving targets stop, but if you do not know your target, your preparation will be wasted not allowing you the opportunity to synthesize new information and adjust.
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