Professional courtesy, and our rules of civil procedure, require that a lawyer deposing a witness provide copies of exhibits to be used with said witness either prior to the deposition or simultaneous with their introduction into evidence at the deposition. Generally, that’s the way it’s always been, and there’s been little dispute about that over the years.

For the most part, though, such exhibits are already in the possession of the other lawyers in the case.  For example, when deposing a treating physician, it is customary to produce the relevant medical records, which have usually been produced to all parties long before the scheduling of the deposition of the provider at issue.  Further, there are non-controversial exhibits – like the notice of deposition itself or the subpoena to the witness or even the affidavit of service – which may be introduced, depending upon the deposing lawyer’s preference, without incident.

The question becomes:  Does the deposing lawyer really need to bring with him multiple copies of all such exhibits to the depositions in this day and age?  Even ten years ago, law firms were using PDF formats and electronic storage of documents to reduce paper files and presumably protect the environment.  Today, many lawyers take their iPads or laptops to depositions and bring with them relevant materials in digital format.  Further, even if one does not take into account the technological advances, the deposing lawyer can typically assume that the other lawyers in the case already have in their possession or otherwise have access to the anticipated exhibits at the deposition. It’s not rocket science, after all.

So does the deposing lawyer need to lug around multiple copies of all such documents?  Suppose we have this situation.  A single plaintiff has sued a single defendant, and the deposition of a doctor with 500 pages of medical records has been noticed.  Must the defense lawyer, in noticing the deposition of the provider, bring three separate copies of the medical records in hard copy format to the deposition?  Three copies would be needed because one would be for the record, one for the deposing lawyer’s use during the deposition, and one for the plaintiff’s attorney.  In multi-party cases, even more copies are required, both dramatically increasing the amount of paper being wasted and the hassle of carting so many documents to the deposition.

There must be a better way.

In fact, this is already on the minds of lawyers in the field.  Recently, at a deposition of a plaintiff’s retained testifying expert, I brought with me, as courtesy and custom demands, multiple copies of all such records and file materials of the expert.  When I attempted to hand to the plaintiff’s lawyer a copy of a large set of documents that I introduced into evidence, he simply replied, “Oh, no you don’t.  I’m not lugging that around.” We both laughed. I had hoped that he would take the set of documents because it would relieve me of carrying them around any further.  Obviously, one set of documents I had brought with me to the deposition would be left with the court reporter in evidence.  But the plaintiff’s lawyer refused to accept the copy of exhibits I had provided for him. Alas.

Maybe next time I’ll just email the exhibits ahead of time.

Above, you’ll find the cover of Captain Marvel #39, published way, way back in 1975.  It’s a part of the storyline “The Trial of The Watcher,” which the website Comicvine tells us involved “Uatu the Watcher [being] put on trial among his race for his interference in several Earth affairs.” The cover proclaims that the issue will offer “The Fate of the Watcher . . . and the Deadly Verdict!”  That does not sound promising for Uatu, does it?

Mental Floss offers us “11 of the Most-Watched Television Trials.”  You can probably guess most of them.

This review of My Cousin Vinny by AtomicSam links our prior coverage of the 20th anniversary of the film.

Well, Trevor Fehrman at Film Racket is arguing that “Attack of the Clones is a Film of Incalculable Historical Significance.”  Oh, my.

Finally, comedian Ricky Gervais offers his thoughts on product warning labels. Not a fan of them, we think, based on his comment.  For good measure, be certain to read some of the comments to his tweet to get an idea of the public perception of certain warning labels.

Sometimes, Plaintiffs’ attorneys complain about the amount of time defense counsel spend deposing their retained liability expert. Of course they do.

Accordingly, we here at Abnormal Use offer these suggestions on how they can ensure that the depositions do not require so much time to conduct.

Produce a report. Obviously, in federal court, expert reports are required.  However, in some state courts, reports are not mandated.  Accordingly, defense counsel may appear at the deposition without a detailed knowledge of the nature and basis of the expert’s opinion.  If defense counsel must spend the first portion of the deposition ascertaining the expert’s opinions, and then later exploring them in detail, then the process is slowed.  If the defense lawyer knows beforehand what the opinions are or may be, then he or she can better prepare and conduct the exam more efficiently.  However, without a report, the defense counsel must both identify and confirm the expert’s opinion before establishing the basis for said opinions.

Produce the expert’s file material well in advance of the deposition.  If the expert appears at the deposition with a host of unproduced file materials, then a portion of the exam must be dedicated to identifying and explaining the purpose of those materials.  Even production of the expert’s file before the deposition may not save time.  For example, if the Plaintiffs’ attorney emails file materials to defense counsel at 5:00 PM the day before the deposition, then one cannot expect that much time will be saved at the deposition itself.

Show up on time to the deposition. Sure, we as lawyers are sometimes informal at depositions, and most of the time, a collegiality permeates the deposition room despite the antagonistic nature of the litigation process.  However, if the Plaintiffs’ lawyer appears 15 minutes late for the deposition, it makes complaints about the length of the deposition somewhat disingenuous.

Determine how to address the lunch break. If time is a concern, then perhaps a brief lunch period can be scheduled or food can be ordered out and eaten as the deposition progresses.  Obviously, there must be sufficient time for the court reporter to take a break and eat his or her own lunch, but if a 30 minute lunch break is suggested, and Plaintiffs’ counsel requests an hour instead, then complaints of the length of the deposition may be inappropriate.

Finally, prepare the expert for the deposition process. A number of experts are in the business of being experts, and they enjoy sparring with attorneys and avoiding answering even the most direct questions.  Most defense counsel will be undeterred by such tactics and continue to ask questions to confirm and secure the full basis of the stated opinions.  However, the types of games that some experts play in attempting to avoid questions can only prolong the process.  Defense counsel is entitled to know both the opinion and their basis, and if the testifying expert wishes to delay offering that information at the deposition, then it will only take longer to procure that information from the expert during the exam.

Make certain that the expert has a mastery of his or her own file. If an expert is only prepared to spout off his or her own opinions, but cannot point to the specific documents or evidence supporting that opinion, then the deposition will last longer than expected.  The expert has known for days, possibly weeks, that he or she is to be deposed, and answering straightforward questions such as “what is the basis of that opinion?” with something along the lines of “I read that in some other depositions” or “that is in one of the books upon which I relied” are not sufficient answers.

Above, you’ll find the cover of Police Line-Up #1, published way, way back in 1951.  “Crime Can’t Win,” proclaims the issue. Check out the armed guy on the cover raiding the police files. Note that this comic book is so old, and presumably rare, that the only version of its cover we could find is one defaced with ancient scribbles and doodles. We wonder if the scribbler – whose identity is inevitably lost to history – became a lawyer. Sadly, we’ll never know.

This, by the way, will be our 896th post. Can you believe that? That is a great many blog posts. We too are stunned. Have you read them all? When is the last time you read the Abnormal Use mission statement, published on January 4, 2010? In fact, when is the last time we read it?

Friend of the blog Tamara Tabo published her first column at legal mega-blog this week.  You can find it here.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Congratulations are in order.  Friend of the blog, Ryan Steans, himself a long-time pop culture blogger, recently celebrated a memorable anniversary: his tenth year as a blogger.  Steans, who blogged first at a site called The League of Melbotis, and then at a sequel blog of sorts named The Signal Watch, deserves much praise for reaching this anniversary.  Long-time bloggers like Steans, and of course, Walter Olson of the Overlawyered legal blog, have dedicated substantial amounts of time to their websites and blogs. To reach ten years, well, that’s a lot of sweat equity.

We here at Abnormal Use, a baby in the legal blogosphere at only three years old, certainly understand the commitment required to maintain such an enterprise.  However, the diligence and discipline needed to maintain a blog for more than ten years – like Steans and Olson have done – is quite a feat, no matter the topic.  Accordingly, we applaud Steans upon reaching this milestone.

Steans is a long-time friend and former college classmate.  His blog typically centers around popular culture and events from his daily life.  His posts are often much longer than those you see here on Abnormal Use, and although he does not post every day, he posts often enough to suggest that it is, indeed, a full-time job for him.

What is interesting about his site is the manner in which he has created a community of readers.  That is quite an accomplishment, as many blogs come and go, live, and then die, without attracting much of a readership.  Steans, in the manner in which he writes his site, offers shout-outs to readers and encourages conversation.  Surprisingly, readers of his site – who had no previous connection to each other – have met and become friends after becoming initially acquainted on Steans’ site.  That sense of community, in part, is what has allowed Ryan’s blog to endure as long as it has.

We here at Abnormal Use have taken several lessons from Ryan and his long-time blogging experience.  We here try to foster a community of readers, both by adopting an informal style of sorts but also by utilizing social media in such a way to prompt interaction with our readers.  We are still working on that, and like any blog, this is still a work in progress, even three years in.

To date, we here at Abnormal Use have authored almost 900 posts.  We look back on that with some level of pride, and occasionally, we will peruse some of our favorites years after they were published.  In his own posts observing his milestone, Ryan remarks that he has authored “around 5,000 posts.”  There is something existential in his account of his site’s first decade, as he pauses to reflect upon some of the lessons he has learned in maintaining the site from his late twenties to his late thirties.

We congratulate him on this milestone.

Above, you’ll find the cover of Brik Jones: Attorney for Earth #1, published not so long ago in 2012.  It’s funny to think that there have been legal themed comic book covers brought into existence after we started this blogging thing. Wow. However, we must confess that we have never heard of Brik Jones, and we find it hard to believe that his client is Earth.  I mean, his client is the planet? Who would he present as his representative for a 30(b)(6) deposition?

Well, you might have  noticed that the site suffered a brief outage yesterday.  Rest assured, dear friends, we have rectified the issue, and it will trouble you no more.  (We were told it was a minor, but thankfully ephemeral, hosting issue.). Thanks to the eagle-eyed readers who first noticed the issue and brought it to our attention.  This blogging thing can get complicated!

Here is an interesting article from The Daily Texan, the official student paper of The University of Texas at Austin, detailing how the University enforces its trademark. (Hat tip: The Daily Texan Twitter Account.).

Here at Abnormal Use, we are all about online culture. Accordingly, we must comment upon a recent New York Times blog post by Nick Bilton entitled “Disruptions:  Digital Era Redefining Etiquette.”  Brought to our attention by a Twitter user, the article posits that the “worst offenders of all” are “those who leave a voicemail message and then email to tell you they left a voicemail message.” It’s true that few still listen to voicemail messages.  This trend likely frustrates many parents leaving messages for their children (as Bilton notes).

However, in litigation, it may actually be advisable to send a follow-up email after leaving someone a voicemail, particularly if that person is, intentionally or otherwise, making themselves overly difficult to reach. There are those with whom a lawyer must communicate on a case who do not often wish to return calls.  Perhaps it is an opponent who has failed to timely respond to discovery responses.  Perhaps it is a third party whose documents you have subpoenaed.  Perhaps it is a witness who is reluctant to appear for a deposition.  Perhaps it is an opposing counsel who simply has other priorities than the case at issue. Whatever the case, simply leaving voicemails, inevitably lost in the void, does not preserve one’s ability to argue later that one attempted to communicate with an individual.  Assume that one must later rely upon evidence that one attempted to reach out and communicate with such a person, whether it be in a motion to compel or otherwise.  Oftentimes, memorializing the fact that one left a message, particularly if it was ultimately unreturned, creates a record both of attempts to communicate and the recipient’s failure to respond.

Further, you may not initially suspect when you may need to later rely upon such evidence.  Occasionally, unforeseen issues surface, and you, the litigator, will be pleased that you created such a record of communications and attempts which you can later rely upon.

So there.

(Hat tip: Garance Franke-Ruta).

Today is Tax Day. You all know what that means (especially if you have read the Wikipedia entry for “Tax Day”).  Above, you’ll find the cover of Tick: Big Tax Time Terror #1, published not so long ago in 2000. Here’s the description of the comic from Comicvine:

Yes, The Tick is way overdue for squaring his accounts with the government. The urgent demands of a super-hero life is no excuse for being late with your taxes. Share the terror as The Tick confronts the ultimate challenge, a menace beyond the power of even ten super-powered do-gooders. Chill and thrill to this cold sweat nightmare of the Tax Man!

I suppose an alternative name of the issue could have been “Battle of the Forms.”  (Whoa, that was a really bad Contracts joke.). Did you see that one of the monstrous tax forms is called the “U.S. Superhero Sidekick Excise Tax Return?

Our eyes are too poor to tell what the other forms are named.

Whatever the case, don’t forget to file your taxes today.

Above, you’ll find the cover of Miles Edgeworth: Ace Attorney – Investigations #4, published not so long ago in February 2013.
According to Wikipedia, Miles is Ace Attorney Phoenix Wright’s “long-time friend and first rival in the court room.” You may recall that we here at Abnormal Use mentioned Phoenix Wright way back in June of 2011. Whatever the case, here’s the plot of this issue, according to our favorite comics website, Comicvine:

Stranded in the middle of the mountains, Gumshoe and Edgeworth spend the night in a nearby hotel. The employees believe an ogre has been set free by a recent fire, and is terrorizing the guests! Is the hotel really a host for the occult, or is this just a novel scheme? Edgeworth, along with Gumshoe and Candy Holly, must uncover the truth before the entire hotel falls into ruin!

This does not sound like a typical case for any attorney. Oh, well.

Um, apparently, there is a show called “Vampire Prosecutor.” (Hat Tip: Adam Frazier).

The Minnesota legislature was doing interesting things in 1891, apparently.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.