Step six in how to win a lawsuit: Depositions

A deposition is when all attorneys require an opposing party or a witness to answer questions under oath in the presence of a court reporter. It is a very formal proceeding, much like testimony in open court, except there is no judge or jury present. Attorneys use this process in order to require witnesses with critical information to commit themselves under oath before trial. This gives both sides an opportunity to plan their responses to the witnesses’ testimony and to avoid surprises at trial. This process is extremely effective in gathering evidence, but it is also very inefficient. In truth, a typical witness with relevant information that could be discovered in a 15-minute phone conversation may be subjected to 4 or 5 hours of intense questioning at a deposition. Because it is so inefficient, it is also extremely expensive. Clients must pay their lawyers to prepare for the deposition; then they must pay them to spend a day at the deposition; then they pay for the court reporter to attend the deposition and type up a lengthy transcript of the proceedings; and then they pay for the lawyers to read and analyze the transcript. It can cost anywhere from $2,000 to $10,000 for a single deposition. Really this is a hugely wasteful endeavor, but it is also an essential one under the rules of discovery in the United States.

Step five in how to win a lawsuit: Controlling your costs

Almost all lawsuits are about money, either winning the best settlement or paying the least settlement. To achieve that goal, the costs you spend litigating the case must be properly controlled – spend too little and you lose the case, spend too much and you still lose because you have not optimized the results you could have obtained. Let me give you some examples. As I mentioned in my last blog, I have defended many cases where a highly skilled and aggressive lawyer for the plaintiff has spent an enormous amount of money building the best possible case he can for his client. Then he comes to me, bragging about all the great evidence he has developed and wants to settle the case. Unfortunately, the lawyer has spent too much, more than his case is worth, so a settlement becomes impossible. Lawyers like these do not understand the meaning of the word “win,” and their clients never win, even if they get a verdict in their favor.

Lawyers representing defendants have their own set of problems. I have actually seen cases where the legal fees spent defending a case far exceed the value of the case itself. I once got a call from a disillusioned client who had received a bill from his lawyer for over $400,000 for defending him successfully on a case where the worst possible result would have required him to pay only $250,000. The lawyer actually sued him for his fee, which is how I got involved. To my astonishment, the lawyer did not even recognize he had done anything wrong. He just kept telling me it was a very complex case with difficult legal issues that required him to expend an enormous amount of time preparing the case properly. Obviously this lawyer does not understand the meaning of the word “win.” The lawyer really thought he had “won” because his client did not have to pay anything to the other side. His client, however, considered the result nothing short of a total disaster.