3. Listen Carefully During Interviews and Depositions
When you interview a client or depose a witness, listen for two categories of words; they are the key to working your way into the most persuasive facts:
Conclusions are merely opinions, so they count for little, unless the witness is an expert. Cold is a typical conclusion. When the deposed says it was cold, we ask, “How cold?” because we can’t picture cold. Fifty-two below zero is a fact, and we can picture it. So can the judge when we put it in our fact statement.
An abstraction is not an opinion, but we still can’t picture it, like “password coding systems” or “space age materials.” We don’t know what the deposed means, so again, we must ask.
Tip: Opponents will usually answer with conclusions and abstractions because they want to answer our questions without telling us anything. Our client and anyone who supports our client will answer with conclusions and abstractions because they don’t know what we need to support the case we imagine. So listen closely to everyone for words like difficult, and be ready to develop that conclusion into a fact.
A true story: Lead counsel at a defendant insurance company deposed the head of his client’s IT Department. During the deposition, the engineer answered one question with: “It was a difficult transition.” Difficult is a conclusion, the engineer’s opinion. The lawyer asked what the engineer meant by difficult. The engineer said that while shifting all insurance policies onto a new system, they had to continue processing 2.4 million claims. That’s a great fact. Another Tip: Ask the deposed to compare his conclusion to something else. When the lawyer asked the engineer what he would compare difficult transition to, the engineer said, “It was like trying to change the tires on a car going 60 miles an hour.” That sentence went in the lawyer’s brief.
The greatest attribute a litigator can possess is curiosity—without it we are not driven to dig deeper.
Over the years, we’ve learned three curiosity questions to keep in the back of our litigator’s mind and bring out when necessary; they will jumpstart any conversation with most clients:
- What is this?
- What does it do?
- How does it work?
If those yield results, follow with: What is it made of? How do you do that? How many people does it take? How long does it take them? What does it cost? Does anybody ever . . .? Why don’t you . . . ? What if . . . ? When did . . .? How many . . . ? Who knew . . . ? And now we’re deep into hard facts we can use.
The more we develop our facts on the Internet, at the site, and during interviews and depositions, the greater our odds of persuading a judge to see our case the way we see it.
About the Author
Gary Kinder has taught over 1,000 writing programs for the American Bar Association, the Social Security Administration, PG&E, Kraft, Microsoft, and law firms like Jones Day, Sidley, and WilmerHale. His critically-acclaimed Ship of Gold in the Deep Blue Sea hit #7 on the New York Times Bestsellers List.