I was really impressed by a recent post at Philly Law Blog, in which Jordan Rushie discusses a humbling experience he had early in his law practice. What was so great about the post (and I highly recommend it, as well as the blog generally) was Rushie’s brave willingness to expose the kind of judgmentally-impoverished immaturity most of us have when we first start out. I bet many of us who have graduated into our second, third or fourth decade of practice could, if we were brave enough and our memory was up to it, recall an instance where we used similarly poor judgment.
I can’t speak for doctors or other professionals, but I know the first couple of years practicing law can be a challenging time. I think it stems largely from the following: when we start out (1) we’ve invested 3 years and a pile of money to get a degree which suggests we know what we were doing; (2) our employers and/or clients hire and (hopefully) pay us because we’re supposed to know what we’re doing; (3) the professional and ethical obligations imposed on us are premised on the assumption that we know what we’re doing, BUT (4) we don’t really know what we’re doing. When we get into a situation we’re unprepared to handle, we want so badly not to admit or show that we don’t know what to do, we often punt. While it works sometimes, other times punting can get us into a predicament that’s embarrassing, or worse.
This is compounded by opposing counsel who, if they have any experience at all, will figure out pretty quick that we are brand new and don’t really know what we’re doing. Some will exploit this.
My first deposition was a classic example. I was a first year lawyer, working at an insurance defense firm. While not nearly as prestigious (or well-paying) as BigLaw firms, starting your career representing insured clients in a variety of cases has tremendous value as a training exercise. While you’re not litigating Apple vs. Samsung, you generally get the chance to take depositions, argue motions, handle arbitrations, mediations and settlement conferences–in short, lawyering–from your very first day.
I had sat through a couple of depositions taken by partners in the firm–because God knows you’re not taught deposition skills in law school–and then let loose to take my first deposition of a third-party witness in a fender-bender case. It was so hokey, I think we took the depo at the witness’s home. In any event, I got there first and waited on the doorstep for my opponent to arrive. She did, and seemed friendly enough at first. She had a harried appearance, in her mid-late 40s. I must have looked really green, because pretty early in the conversation she asked “Is this your first deposition?” What was I going to do? Lie? Get offended? Tell her it was none of her business?
The court reporter arrived and swore in the witness. I did fine through the admonitions. But once I started getting to the meat of the testimony my opponent quickly adopted this habit of interjecting, either when she thought my question wasn’t clear or good enough, or to “clear something up” after the witness responded. She never objected to my questions, just went through and “fixed” them as we went along. Of course she fixed them in a way that rendered useless any testimony that might have been useful to my client. I remember thinking at the time that this didn’t seem right, that it wasn’t how the depositions I’d watched had gone, but I didn’t have the balls (at the time) to shut her up.
In the end the transcript of the deposition was pretty useless for purposes of my client’s defense. But it wasn’t the end of the world. If the carrier paid $8,900 to settle the case instead of $8,500 because we didn’t have a great third-party witness deposition to use at trial, it didn’t seem to bother the partner who’d sent me on the depo. He just laughed when I talked to him about it. He said, “Next time, tell her it’s your dime and she’ll get her turn.”