Read papers, remember certain details

SUMMARY

Reading is fundamental. If you cannot read or have a bona fide reading disability, you need to let your attorney know that immediately at the start. The client needs to be able to read and understand the words on documents in order to get the best possible results.

Additionally, the client needs to be able to state in question and answer that the client: (1) read the papers; (2) when those papers were read; (3) whether the client searched for documents that certain papers asked for; (4) when the client searched for documents.

The client may be required to testify. Testimony is orally answering questions asked by the opposing side’s attorney when the testimony is given under oath to tell the truth, under the penalty of perjury. Testimony most frequently occurs in deposition or at trial.

In deposition, the client will almost always be asked if they read the deposition notice and if they searched for the documents asked for in the deposition notice. The client needs to be able to answer truthfully yes that they read the deposition notice and yes they searched for the documents asked for in the deposition notice.

Additionally, if the client has answered written discovery, meaning written answers to written questions, the client needs to read those questions and answers before deposition or trial. The client needs to be able to testify as to when the answers were originally prepared, if and when documents were looked for, when the verifications were signed, and when those questions and answers were re-read in preparation for the testimony.

If all this sounds basic, great! Do it.

I cannot tell you how much time I have spent explaining, re-explaining and re-explaining these extremely simple concepts.

You need to be able to read documents, look for documents, and answer questions about when you read papers and looked for documents.

If I need to spend time helping you do this, I will, but it will be expensive.

DETAILS

The most common example of when failing to read documents goes wrong; failure to read the depo notice

When I first started working in litigation, I would tell a client, the following.

I emailed the deposition notice to you in email. Read it. Look for the documents that it asks for. Send me any documents that it asks for that I don’t have. At the deposition, the opposing counsel will ask you if you read the deposition and if you searched for documents before the deposition. You need to be able to say yes, truthfully, and tell that opposing counsel when.

I would say this to clients orally on the telephone, and then email the client the same.

The results were consistently shocking. See below

Sample Deposition Transcript

Question: Have you seen this deposition notice before?

Answer: No.

Question: Did you look for the documents that this deposition notice asked for?

Answer: No.

This is extremely harmful to the client.

The client was obligated to read the notice and search for the documents asked for. By answering no, the client’s credibility is at issue. Plus, this type of answer requires attorney time after the deposition to deal with. So, it costs the client money.

The client needs to be able to confidently testify having read the deposition notice and searching for documents.

So, in the past, I started to communicate with clients on how to respond in deposition just to the basic questions if the client had ever seen the deposition notice or searched for documents. It was not unusual for preparation on this matter to consume two, three or four hours.

Well, that was fine when it was my time that was consumed. Now that I work on an hourly basis, this is hardly time well-spent by me, or money well-spent by the client.

Another common example of when failing to read documents goes wrong; failure to read discovery responses

When I first started working in litigation, I would tell a client, the following.

You are scheduled for deposition. The opposing attorney will show you copies of the written responses to discovery questions that you answered, I typed and you signed saying the responses were true and correct. You need to re-read those responses before the deposition and you need to answer questions consistently with the answers in those written responses

I would say this to clients orally on the telephone, and then email the client the same.

The results were consistently shocking. See below

Sample Deposition Transcript

Question: Have you seen your written responses to written discovery requests before toda?

Answer: No.

Question: Did you answer questions in this case before?

Answer: No.

Question: Is this your signature on this document called a verification?

Answer: No, I don't remember. It's a e-signature.

Question: So, you couldn't tell me if the written answers to these written requests are accurate?

Answer: No

This is extremely harmful to the client.

The client was obligated to read the questions and answer. The verification is a statement made by the client that states the client read the questions, answered the questions completely and truthfully, and signs that statement as true and complete subject to an oath to tell the truth, under the penalty of perjury.

Plus, this type of answer requires attorney time after the deposition to deal with. So, it costs the client money.

The client needs to be able to confidently testify having read questions, and answers, and that the answers are true and complete.

Furthermore, the deposition will ask the same questions as the the written discovery asked. The answers must be the same. If the answers to the written discovery are different than the answers in deposition, the client’s credibility is undermined, and the case is damaged.

Well, that was fine when it was my time that was consumed. Now that I work on an hourly basis, this is hardly time well-spent by me, or money well-spent by the client.

So, I started to communicate with clients on how to respond in deposition just to the basic questions if the client had ever seen the deposition notice or searched for documents. It was not unusual for preparation on this matter to consume two, three or four hours.

Well, that was fine when it was my time that was consumed. Now that I work on an hourly basis, this is hardly time well-spent by me, or money well-spent by the client.

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