Tag Archives: Lawyerist

If You’re Going to Blog, Skip The Gimmicks

huihuhI came across an unfortunate recent post on the Lawyerist (aka “the Puddle”) entitled, “5 Tips to Draw Readers To Your Blog.”

I say unfortunate because, at least on my reading, the post seemed to suggest that, if your legal blog is not getting sufficient readership based on quality writing about compelling topics, perhaps you can “juice” your stats a bit by employing one or more of the following gimmicks (my term):

1. Frame everything in a “top 5” list format;

2. Attack conventional wisdom;

3. Make it funny;

4. Bash law schools;

5. Write about Apple.

6. “Bonus” gimmick: blog about celebrities and sex.

Two of these “tips” are completely legitimate suggestions. Attacking issues from an unconventional angle and weaving in some humor (assuming you’re actually funny) are terrific ways to improve blog posts and enhance readership. But, in my view, the others are bollocks.

The author, Andy Mergendahl, freely admits that it’s only necessary to resort to this gimmickry when all else fails:

“But how to attract readers? Sure, you can . . . strive to write well on topics you’re knowledgeable about. I’ve tried that. I’ve combined my experience with my own independent study to provide a lot of sober advice on good lawyering. Almost all those posts were greeted with a yawn, followed, I suspect, by an immediate click over to Buzzfeed.”

Clearly if your “sober advice on good lawyering” is greeted with a yawn, the solution is to “go blue” or, if even that fails, do some law school bashing.

A couple of other solutions come to mind: blog about something else, or (gasp) don’t blog at all.

I’ll freely admit I crave more readership. I recently had a conversation with my good friend Mark Suster about his blog. Imagine my awe, or was it shame, as I learned that his esteemed blog garners almost as many views in a single day as I boast in an entire year! Talk about blog envy. (No, it’s not always that small. It shrinks when I swim in cold water. I swear it does.)

But regardless how desperate we get for readers, gimmicks aren’t the answer. Leave the racy pictures and stories to Above the Law or The Superficial or whatever. Don’t get controversial for the sake of being controversial. Write what you think and you feel. If it flies in the face of conventional wisdom or raises eyebrows, great. But don’t adopt a pose just to boost your numbers.

Sure, I’ll bust out the occasional “top 5” post. If I’m feeling especially saucy, I might quote Neil Young or pop out some particularly pure alliteration. But not to get more readers. If I use gimmicks at all, it’s because I blog as much for my own enjoyment as anything else. And you should, too.

A Potted Plant? Eh, Not So Much.

ghg6rtrTwo blawg posts last week caught my eye. Both discussed preparing and defending witnesses at deposition. At the Lawyerist, Chris Bradley talked about his experiences defending a client in his first judgment-debtor examination. His title for the piece, which I mistakenly took to be ironic, was: How To Defend A Deposition: Just Show up. The other post, by Philly Law Blog blogger Jordan Rushie, took the assignment more seriously, and provided better guidance, likely because he has more experience. In his post, Rushie credited Max Kennerly with the notion that “[i]f you prepare your witness properly [for deposition], you should be able to just be a potted plant.”

Let me say first that I’m not sure whether Max Kennerly ever made that statement. It sounds pretty good, provided you don’t, as Jordan Rushie fortunately did not, take it completely at face value. What concerns me is that young lawyers reading Bradley’s post at the Lawyerist and contemplating Kennerly’s remark, might mistakenly conclude that adequately preparing your client or witness for deposition is enough. Or nearly enough.

It’s not enough. Or nearly enough.

I agree that preparing your client or witness is surely the single most important part of your job in defending the deposition. Clients or witnesses who have never been though litigation are quite literally astonished when I suggest that we spend a half or full day preparing for their deposition. And that’s often not enough. I once spent three full days preparing a sexual harassment defendant for his deposition–and I was still unsatisfied with the result. So yes, Max Kennerly is right that witness preparation is the first priority.

But even if you spent a full week preparing the witness (yes, we do spend weeks preparing certain key witnesses, particularly if they do not speak English or the subject matter is particularly complex), your job is not done. There is your responsibility to “preserve the record” meaning making objections when questions are not technically correct. Jordan Rushie got that right.

But, in my humble view, adequately preparing the witness and interposing appropriate objections is still not enough.

My goal at every stage of the proceedings in a lawsuit is control. I’m not so naive that I think I can actually control very much. There are about a thousand things in every lawsuit that are simply beyond my control, the top of the list being the judge. But that doesn’t mean I don’t try to control every single nuance as best as I can. I’m a control freak. Control. Control. Control.

When I present a witness for his or her deposition, I am being forced to relinquish control over a very important aspect of the process. In civil litigation, at least in my experience, depositions and documents win or lose a case. There’s very little I can do about bad paper. If there’s a bad document out there and my opposition has properly asked for it, and it’s not privileged, then I’ve got to produce it and we’re stuck with the consequences.

Depositions are different. Unlike bad documents, depositions don’t just exist. A deposition is more of a process. Even when we’re done preparing and I object whenever necessary, my opponent still must ask the right question and get a damaging answer before the evidence comes into existence. That’s a big leap, and I want to make it as difficult as possible to cross that chasm. And I’m not talking here about inappropriate objections, improper instructions not to answer, or being a difficult jackass, or other ethically-challenged conduct. But I do want my opponent to know I’m listening closely, to every word, and I’m not going to make it any easier for him/her than I absolutely have to. Otherwise, what am I getting paid hundreds of dollars an hour to do? A well-trained monkey can object when questions are “vague and ambiguous.”† I think our role is bigger than that.

I learned pretty early that you want to create a “tight” environment from the start. By this, I mean that, even if I generally have an extremely cordial relationship with my opponent (and I usually do), I don’t want him or her to think that this particular deposition is going to be easy or fun. I want him or her to feel that our time on the record is “borrowed time,” that he/she is taking up my client/witness’s extremely valuable time, that we’re inconvenienced, that his/her goal should be to finish up as quickly as possible. It’s been my experience that, in most instances, this results in a shorter deposition. Shorter deposition = less chance of damaging testimony from my client/witness = a good thing.

Another way I create a “tight” environment is by interposing a fairly stiff objection early in the deposition. By early I mean in the first 20-30 minutes. This signals to my opponent that I’m listening, and that I don’t intend to put up with any baloney. I do try to avoid speaking objections, because they’re unprofessional. On the other hand, if I need to say additional words to fully state the objection or my nonspeaking objections aren’t getting anywhere, then I’ll say what needs to be said. Again, while it may be my opponent’s deposition, I’m going to retain as much control as I can.

I also want to dictate when we take breaks. At least every hour. I don’t want my witness getting fatigued, hungry, exhausted or even comfortable. When he/she gets comfortable, that’s exactly when the filters in his/her brain start to shut off and the damaging evidence is created.

I’m also not above verbally bitch-slapping scolding any opposing counsel who gets too high-handed with my client. Again, I’m not getting paid several hundreds of dollars an hour to sit back and watch some unprofessional lawyer abuse my client. I’ve come to believe that civility really is best 99.9% of the time. But, if an opponent is abusing my client with his/her examination, I have two choices: I can terminate the deposition or I can push back a bit. If I give some push back, perhaps we can alter the course and finish the deposition without bothering the judge. If I terminate the deposition, motion practice is sure to follow and this is costly, and the judge might not see things my way.

We sometimes walk a fine line when defending depositions. I don’t want to be obstructionist, or an asshole. But when we’re on the record, my job is to do everything ethically within my power to prevent that record from containing evidence that is damaging to my client’s case and/or helpful to my opposition. I respectfully disagree with the notion that this obligation is satisfied by “just showing up” or even by just making objections.

†I mean no disrespect to monkeys, trained or otherwise.

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