Raising the Bar

Preparation and Question Structure

It is important to remember that the client is paying you well to prepare for the deposition. Typically, you should review the file, discovery, and prepare the types of questions to ask. Also, you should determine the deposition’s objective to better prepare question structure.

In litigation, the parties will likely serve written discovery before depositions. Interrogatories provide an opportunity to get an idea of the expected testimony at deposition. I have seen attorneys try to avoid responding to interrogatories, arguing the opposing party can ask the interrogatories at the depositions. But I would warn against accepting this argument because interrogatories are usually verified and serve as effective tools if the deponent responds differently. Requests for production can require the opposing party to rely on specific documents to support a claim or defense and will provide you with necessary exhibits at the deposition. Discovery review is an important element to deposition preparation and is time well spent no matter how tedious.

Generally, I find that question preparation falls into two camps. First, there are attorneys who group their questions into topics after reviewing discovery. The questions are not written out, but the attorneys will proceed through the topics and formulate the questions at the deposition. The rationale is that one does not want to become bound to a script and lose agility to explore other topics. In contrast, there are attorneys who prepare questions verbatim and in a particular order. The process ensures all questions are answered and prevents forgetting important questions. Expectedly, there are blends of the two styles.

As an example of preparation and question structure, a few years ago I represented a general contractor in a construction defect case that centered around claims for water intrusion. The plaintiff, a condominium association, sued the developer and general contractor arguing the defective conditions were causing water intrusion and damages. During the case’s early stages, my office served subpoenas to various non-parties. One of the non-parties was a forensic engineer who conducted a turnover report of the condominium building – the turnover report is usually a forensic report produced when the developer turns over control of an association to the unit owners. We identified the forensic engineer through emails the condominium association had produced.

In the turnover report, the forensic engineer concluded there were issues with the construction that were causing water intrusion and recommended the issues be addressed. The produced emails also showed that the turnover report was sent to the then-condominium association’s board of directors. After receiving the turnover report, the condominium association did not address the defects. Over four years later (the statute of limitations in Florida), the condominium association had a new board of directors which hired a second forensic engineer who issued a separate expert report without any knowledge of the turnover report. The second engineer’s report espoused the same conclusions outlined in the turnover expert.

The condominium association designated the second forensic engineer as its testifying expert for liability and his deposition was set. At the time, I reviewed the docket and discovered no other party had served a Request for Copies for the turnover report (meaning no other party had the turnover report because they failed to request copies). I knew I had a valid basis for a motion for summary judgment based on the statute of limitations, and that preparation was key to have the liability expert agree that the conditions he observed were the exact conditions outlined in the turnover report.

At the deposition, it was imperative to ask specific questions that called for “yes” or “no” answers. The question structure was important because it served as a cornerstone of the motion for summary judgment as to whether the condominium association was on notice of the defects at turnover. Ultimately, the motion was granted, and the question structure from the deposition testimony helped with the favorable outcome.

I believe a general rule in question structure is to avoid compound questions. For many fact witnesses, depositions are rare events, and you will need to explain the deposition process. I think a proper deposition explanation to the first-time fact witness is important and often overlooked. Below is a real exchange from a fact witness’s first deposition:

Question: If at any time you need a break, let us know. It’s not an endurance contest. The only exception of that is [if] I’ve asked you or anyone else has asked you a question, I would ask that you answer it before you take a break unless you believe that doing so would reveal some confidence between you and your attorney, then you’re allowed to take a break to talk to him about that. You may also hear objections from the other attorneys and unless instructed not to answer by your attorney, I need to you to answer the best you can. Do you understand that you are testifying here under oath just like you would be in a courtroom?

Answer: I do.

Which question did the deponent answer? Compound questions muddy the transcript. At trial, imagine trying to impeach the deponent:

Question: “You remember testifying under oath at deposition?”

Answer: “Not really, I remember acknowledging I could take a break. I didn’t fully understand the part about the oath since we were not in a courtroom.”

The best tactic is to ask single questions with “Do you understand?” or “Is that clear?” Example:

Question: “Do you understand you’ve sworn to tell the truth today?”

Answer: “Yes.”

It would be hard for the deponent to argue that she did not understand she was under oath. Compound questions may also haunt you when filing for a motion for summary judgment. Your client will be unhappy if the motion were denied because the witness thought they were answering one part of the compound question and not the part that would have won the motion.

If possible, request to take as many depositions as you can to improve your techniques. Also, learn from the mistakes of others—if you could not follow a line of questioning in a deposition, review the transcript and avoid similar mistakes. Overall, preparation and question structure are elemental to achieve successful methods and habits for depositions.

Benjamin W. Dowers is a partner with Gunther Legal, PLLC in Fort Lauderdale, Florida, and is licensed in both Texas and Florida. Ben is board-certified in construction law by the Florida Bar, and mainly practices construction law, commercial litigation, and admiralty and maritime law.

Remote Depositions/Examinations Are Not a Perfect Process

It is important to note that technology for remote depositions/examinations has been around for quite some time; however, it was drastically underutilized until now. COVID-19 has eradicated the long-standing practice for counsel, witnesses and parties to travel and physically be in the same location for a deposition/examination. This allows for effective social distancing in the pandemic age but is also a significant cost saving measure and promotes convenience. Despite its advantages, this is not a perfect process, and there are some concerns when it comes to conducting virtual depositions/examinations, such as gauging credibility of a deponent/witness from a computer screen, elimination of the adversarial atmosphere by allowing deponents/witnesses to testify from home and determining whether a deponent/witness is being coached or participating in virtual chats with their counsel during the deposition/examination.

While there is resistance to the explosion in remote depositions/examinations, overall, the practice has been upheld by courts. For one, concerns that in-person depositions should be conducted due to technological problems that may arise during remote depositions have been rejected. See In re Broiler Chicken Antitrust Litig., No. 1:16-CV-08637, 2020 WL 3469166, at *4 (N.D. Ill. June 25, 2020) (technological problems can arise during in-person…depositions, but that is not a reason to prevent remote depositions from occurring). Certainly, counsel needs to be ready for any technological problems that may arise during depositions/examinations. For instance, conducting test runs prior to the deposition/examination with the court reporter can ensure that everything is working correctly.

Remote Depositions/Examinations Are Preferred Even When It Is Document Intensive and Credibility Issues Exist

Many opponents of remote depositions/examinations have argued that in-person depositions/examinations are more appropriate when credibility of the witness is at issue, it is document intensive, or remote sharing will cause significant delays to the entirety of the litigation. See Falsetto v. Falsetto et al., 2020 ONSC 3374, para. 8 (Can.) (waiting until social distancing requirements are over to have in-person discoveries will create further delay which…is not reasonable). Courts are trying their best to expeditiously move cases along, without allowing the pandemic to cause further delays. In a leading case in Ontario, counsel opposed having the examinations take place remotely and insisted that, the parties needed to be together to help with documents, assessing demeanor through videoconferencing would be difficult, videoconferencing would reduce the persuasive environment of examinations, and that the other party could abuse the process. These arguments were rejected. The court held that “it is 2020…we have the technological ability to communicate remotely effectively…it is more efficient and far less costly than personal attendance. We should not be going back.” See Arconti v. Smith, 2020 ONSC 2782, para. 19 (Can.). This means that courts are not keen on having parties travel to conduct in-person depositions/examinations, when conducting them through videoconferencing is more than sufficient.

Of course, in-person depositions/examinations during the pandemic present their own drawbacks. If they were conducted in-person, parties would have to adhere to social distancing protocols and wear face masks, which would make it difficult to assess their demeanor. While there will never be a substitution to seeing a witness’ temperament displayed during in-person depositions/examinations, courts believe that videoconferencing alternatives can suffice. See Learning Res., Inc. v. Playgo Toys Enters. Ltd., No. 19-cv-00660, 2020 WL 3250723, at *3 (N.D. Ill. June 16, 2020) (remote videoconference depositions offer the deposing party a sufficient opportunity to evaluate a deponent’s nonverbal responses, demeanor and overall credibility). Courts have also prioritized the parties/witnesses’ health risks over making effective use of exhibits in depositions. See Reynard v. Washburn University of Topeka, No. 19-4012-HLT-TJJ, 2020 WL 3791876, at *6 (D. Kan. July 7, 2020) (“health risks…outweigh the practical problems of making effective use of exhibits”). Extensive documents in a case are not an obstacle when it comes to conducting successful remote depositions. See United States ex rel. Chen v. K.O.O. Constr., Inc., 445. F. Supp. 3d. 1055, 1057 (S.D. Cal. 2020) (voluminous and highly detailed exhibits do not preclude remote depositions). Additionally, based on the particular circumstances and needs of each case, it may be that remote depositions/examinations will not result in undue prejudice to either party.

We are all operating in unprecedented times and are adapting to using videoconferencing platforms to ensure cases move forward. Even after widespread dissemination of the vaccine, there is still uncertainty as to how quickly we will go back to conducting in-person depositions/examinations. Virtual depositions/examinations have resulted in significant cost savings to clients, as time and expense spent on travelling has been mostly eradicated. The reality is that we are far from returning to the normalcy we once knew. We are now in an era where judges and courts, rather than allowing the legal system to come to a halt, have learned how to use and implement various technological means available to conduct remote hearings. As things stand now, it appears that we will be refining the practices that are in place and utilizing videoconferencing technology as much as possible. This means that counsel will need to be prepared in dealing with remote depositions/examinations, which might become the new status quo.

Sunny Rehsi is an associate at Bowman and Brooke, LLP in Bloomfield Hills, Michigan. Sunny handles complex, multi-party product liability and corporate commercial litigation matters for his clients throughout the country and across Canada. He also handles complicated product liability discovery and has been actively involved in assisting his client combat the sale of counterfeit respirators during COVID-19.  

2. Be Flexible and Adaptable

If there is one thing the pandemic has taught us, it is that flexibility and adaptability are essential skills to possess to be an effective lawyer. According to this Forbes article, flexibility is “a willingness to meet others halfway procedurally,” whereas adaptability is “a willingness to confront or change your own ideas and preconceptions.” In the past year, many of us have been flexible by discovering solutions to the special challenges our business counterparts have faced and have adapted by adjusting our preconceptions about how our workplace “should” look. However, even when there is not a global pandemic happening, company needs, and industry demands may frequently fluctuate and leave the need for the legal team to respond and adjust accordingly.

For junior attorneys looking to strengthen their adaptability muscle, I recommend seeking out opportunities to cross-train in a variety of practice areas. Regulatory compliance, intellectual property, employment, M&A, and commercial litigation are all areas that in-house lawyers should have at least some understandings. Even if you have no intention to commit to specializing them, obtaining basic competency in these areas will help you issue spot and recognize when another attorney needs to be involved in the transaction.

3. Cultivate Your Soft Skills

Enough cannot be said about the importance of having a positive attitude and building relationships. As an in-house attorney, throughout your career you are constantly working to build trust, be accountable, and foster open communication with fellow lawyers and business colleagues. We sometimes overlook the fact that, despite your substantive and technical aptitude, a lack of interpersonal skills can inhibit an attorney’s ability to be an effective counsel and negotiator, which is literally is bad for business.

A quote from Rick Stephens, Senior Vice President of HR, The Boeing Corporation, reiterates this point:

There’s not one specific thing or skill people have to have to work for us. But I can tell you why we fire people: soft skills. We hire for hard skills. We fire for soft skills. The ability to interact and communicate with others or behave ethically and take responsibility for things tends to be where people tend to break down.

To improve your soft skills, you may consider trying one or more of the following:

• Asking a trusted colleague or mentor for feedback

• Intentionally practice active listening during meetings

• Joining an employee resource group

• Take on leadership roles outside of work (e.g., bar associations, your alma mater’s local alumni chapter, community-based organizations, recreational sports teams, etc.)

• Practice a negotiation with a family member or friend

• Hire a leadership development coach

In addition to the practices above, you should start researching how conflict resolution and interpersonal communication affect the workplace. To get you started, the Psychology Today website has hundreds of free articles you can read and two books I recommend are Emotional Intelligence 2.0 by Travis Bradberry & Jean Graves and Gallup’s Strengths Based Leadership: Great Leaders, Teams, and Why People Follow. The latter even includes access to a Clifton Strengths assessment, which helps you identify your top five strengths.

4. Keep It Ethical

Finally, for in-house lawyers who may be licensed in one state but whose company is based in another, do not forget to stay on top of your professional responsibility obligations, such as multijurisdictional licensing requirements. Some state bar associations have adopted the American Bar Association (“ABA”) Rule 5.5, which guides multijurisdictional practice of law, whereas other states have opted to adopt their own set of licensing rules for in-counsel. Additionally, the Association for Corporate Counsel (“ACC”) provides tons of resources to help in-house attorneys aware of new professional responsibility updates across the United States. Make sure you are cognizant of the rules in the jurisdictions where you are licensed and where your company is based.

Conclusion

Working in-house can be a uniquely exciting and rewarding experience because of the variety of matters. Additionally, our increased involvement with the business provides opportunities to venture into non-attorney roles such as compliance officers, business affairs and development executives, or government relations specialists. No matter your ultimate end goal, I hope these 4 tips help propel you forward in your in-house journey!

Jourdan Williams is Assistant Media Counsel at NASCAR Media Ventures, in Charlotte, NC, NASCAR’s media licensing arm. In this role, Jourdan advises the company on legal aspects of entertainment, production, marketing, and digital media. She is a 2018 graduate of Southern University Law Center and a 2014 graduate of Louisiana State University’s Manship School of Communication.

While operating in an adversarial system, it is important to recognize that the adversarial aspect of litigation is designed to instrumentally serve a truth-seeking function. When adversarial behavior is merely gratuitous and does not operate to reveal truth, or at least reveal a client’s truth, it serves no meaningful purpose; it may have the effect (intended or not) of serving a bad purpose. Cranking up high levels of adversarial attitudes on day one of a litigation usually serves no purpose other than to debase the level of discourse and civility in our profession. It does not help us grow as attorneys, and it certainly does not help our clients or promote functionality within the court system.

So, how might we lawyers think about behaving better? To inform one’s understanding of modern American legal ethics, one might profitably examine what is perhaps the most famous account of zealous compliance with a specific ethical code in literature: Miguel de Cervantes’ novel, Don Quixote. Don Quixote is about how ethical codes shape a person’s course of conduct.

Don Quixote is about an old man who thinks he is a knight, even though the era of knights is long over. It is usually read as satire—an elaborate comedy about a silly, senile daydreamer, wistful for the vanished mores of the age of chivalry. He believes himself to be a knight-errant embarking upon heroic quests, when the “monsters” he encounters are merely an unfortunate combination of harmless windmills and poor eyesight.

However, there is another permissible interpretation of Don Quixote—reading it as a straight tragedy: the story of a man earnestly struggling to remain decent and behave honorably in an increasingly indecent and scurrilous world. If we take Quixote at his word and glean that sincerity, not clueless senility, drives his fastidious observance of his code of chivalry, there is something modern attorneys could stand to learn from it.

Early on, Quixote himself formulates his ethical position: “everything I have done, am doing, and shall do follows the dictates of reason and the laws of chivalry.” Miguel de Cervantes, Don Quixote,1828 (trans. John Ormsby, 1885) (1615). He explains that a person obeys the code of chivalry “by virtue, by being affable, well-bred, courteous, gentle-mannered, and kindly, not haughty, arrogant, or censorious, but above all by being charitable.” Id. at 1608. Specific admonitions follow. First, Quixote’s code of ethics demands a seriousness of purpose and aversion to grandstanding and cheap shots: “[b]e prudent; oft the random jest recoils upon the jester’s head.” Id. at 122. Secondly, the same rule applies even more so to court papers: “[t]hy constant labour let it be to earn thyself an honest name, for fooleries preserved in print are perpetuity of shame.” Id. Frivolous lawsuits and frivolous histrionics? “Whoso indites frivolities, will but by simpletons be sought.” Id. at 123; cf. Fed. R. Civ. P. 11.

Moreover, Quixote’s advice to “think before thou speakest” is a time-tested way to avoid saying things one will regret, in court or out. Id. at 879. If one finds oneself on the receiving end of some unprofessional conduct, one may recall Quixote’s principle “let us forget and forgive injuries.” Id. at 886. With respect to dishonesty as an ethical lapse, Quixote never equivocates: “I must speak the truth, and nothing but the truth,” and that “[h]onesty is the best policy, I will stick to that. The good shall have my hand and heart, but the bad neither foot nor fellowship.” Id. at 879; cf. MRPC 3.3 & 3.4. Rigorous compliance with even Quixote’s austere ethical code, however, is not likely to cause every plaintiff’s lawyer to simply drop his case—and may well even invite more vituperation—but “[v]irtue is persecuted by the wicked more than it is loved by the good;” therefore our jobs as ethical attorneys is to support lawyers who do behave ethically, especially when doing so is difficult. Id. at 1364.

Who can seriously question the merits of Quixote’s code, anachronism notwithstanding? Yes, people used to be politer and more civil in the past, but does the fact that civility is presently on the verge of anachronism make it any less worthy of our aspirations? Is it a pipe dream to aspire to more civility in legal practice? Perhaps, but as Solisdan speaks of Quixote:

Your fantasies, Sir Quixote, it is true,
That crazy brain of yours have quite upset,
But aught of base or mean hath never yet
Been charged by any in reproach to you.

Id. at 138. And that’s the rub of it—courtesy, civility, and respect may seem positively fantastical notions in the context of litigation, but holding them seems nevertheless harmless if the result is that one altogether eschews the base and mean, and can always be proud of the manner in which one practices.

Cervantes wrote, almost as if he were issuing a normative prescription for the state of litigation, “[o]f towering arrogance less count is made than of plain esquire-like simplicity.” Id. at 130. The last word in the original is la llaneza, which although translated as “simplicity,” could equally correctly be given as “a manner of treating others with equality and respect” or as “a manner of sincerity and good faith.” See Llaneza, in Diccionario de la Lengua Espanola (eds. Real Academia Espanola, 2012). Do we not call ourselves precisely “esquire,” and purport to mean it as a badge of honor? If we mean to earn the honor associated with that badge, let us do so per the lodestars of respect for our peers, sincerity in thought and action and always observing good faith.

Andrew B. F. Carnabuci is an attorney at Rose Kallor, LLP, based in Hartford, CT, practicing primarily in labor and employment defense. His other interests include playing nurse-wife to his aging Land Rover, trap and skeet shooting, and of course thinking about the various ways the liberal arts can inform the practice of law.

The benefits of diversity are well-documented. In any industry, those companies that have embraced diversity are better positioned to achieve sustainable success. Research by McKinsey & Company has further shown that diverse companies are likely to substantially outperform less diverse competitors. Additionally, diverse law firms are better positioned to attract talented, open-minded attorneys. According to the American Bar Association, Gen X and Millennial attorneys desire “diverse and socially conscious firms” that embrace change, authenticity and inclusivity. Beth A. Wood & Lindsey Hills, Generation Gaps in Practice (last visited April 27, 2021).

Equally important to diversity is inclusion. It is not enough to employ attorneys with diversity of age, gender, race, and ethnicity. Without inclusion, firms will not be able to retain diverse individuals. An NALP study found that the attrition rate of diverse attorneys possesses an equal uphill battle as the average rate of minority attrition was 22 percent, compared to non-minorities at 17 percent. Debra Cassens Weiss, Law firms lost 15 associates for every 20 they hired, NALP Foundation study finds (last visited April 27, 2021). This speaks to a culture of conformity which eliminates the value of diversity. Finally, a law firm that embraces a diverse culture will be more attractive to diverse clients already moving in that direction. Developing a culture that embraces diversity and inclusion as a mirror image that reflects the values of their own organizations.

Why Should You Get Involved in Your Firm’s Diversity and Inclusion Efforts?

There are three reasons why diversity will be a critical factor to the growth of law firms.

1. Innovation and financial growth. Where diversity is embraced, innovation will follow. Law firms that are more diverse are likely to include different voices that add unique perspectives, creative solutions, and strategic approaches to litigation. Innovative law firms will attract top talent, improve employee satisfaction, and excel at building client relationships. Therefore, these firms will enjoy a continual cycle of ever-increasing gains.

2. Improve understanding of a client’s business and needs. Clients have many law firms to choose from. Increasingly, they are looking for law firms that are client focused and possess a diverse-centered philosophical approach to their business—meaning that a diverse team of attorneys are performing substantial work on their files. This is a critical factor because it eliminates any form of tokenism and is a key component in the growth and sustainability of true diversity in a law firm. Clients are increasingly aware that law firms that reflect their race, gender, age, sexual orientation, or culture are likely to create a cohesive approach to their needs. This can only be achieved through diversity.

3. Diverse leadership correlates to profitability and value creation. According to a McKinsey & Company report, a linear relationship exists between racial and ethnic diversity and better financial performance. The report indicates that earnings before taxes and interest increase by 0.8 percent for every 10 percent increase in diversity at the senior executive level.

Vivian Hunt, Dennis Layton & Sara Prince, Why diversity matters (last visited April 27, 2021).

Additional research reported by Boston Consulting Group found that companies produce 45 percent higher innovation revenue than their competitors when they have a more diverse leadership team. Lorenzo, Voigt, Tsusaka, Krentz, and Abouzahr, How Diverse Leadership Teams Boost Innovation (last visited April 27, 2021). Because leadership establishes the culture of a firm, diversity in leadership can facilitate retention of diverse candidates by making equity and inclusion a strategic priority.

Why Is It Especially Important for Young Lawyers to Promote Diversity and Inclusion?

Diversity and inclusion efforts among younger attorneys, such as the DRI Young Lawyers Committee Diversity and Inclusion Subcommittee, are especially important. Young lawyer diversity efforts present the distinct opportunity to home in on the unique intersection of young and diverse lawyers. An abundance of statistics shows that while the median age for lawyers was 39 years old in 1980, the median age for lawyers today is 49 years old. Debra Cassens Weiss, As Fewer Law Grads Become Lawyers, The Profession Shows Its Age ABA Journal (last visited April 27, 2021). Today, 62 percent of lawyers are above the age of 45. Brandon Gaille, 330 Mind-Boggling Lawyer Demographics BrandonGaille.com (last visited April 27, 2021), com (last visited April 27, 2021). Only four percent of today's practicing attorneys are under the age of 30. Id. This aging population of lawyers can be attributed, at least in part, to lawyers of the Baby Boomer generation continuing to practice law even as new attorneys become members of the bar.

But the youth (or lack thereof) of practicing attorneys is of significant importance. Statistics reflecting the makeup of the legal profession show that there is much work to be done in order for law firm makeup to better reflect the clients we serve and society as a whole.

This considered, young lawyer participation is desperately needed to bridge the diversity and inclusion gaps between younger and more seasoned attorneys. The burden of engaging in diversity and inclusion efforts does not rest solely on the shoulders of young lawyers. Still, young lawyers are best positioned to shape the future of their law firms. As young lawyers eventually take the place of their Baby Boomer counterparts, it is imperative that young lawyers actively engage in normalizing diversity and inclusion practices so that law firm diversity becomes commonplace.

How Can Young Lawyers Promote Firm Diversity Efforts?

Young lawyers often mistake that they lack the experience to affect change. However, the grassroots efforts of young lawyers in their every day practices are what will take hold to effect broader change in the long term. A big part of diversifying law firms stems from attorney efforts to reach back to law students and new attorneys. Participation in firm recruitment efforts, mentoring law clerks, new associates, and volunteering with mock trial and moot court programs is key. Engaging in these activities ensures that law students and new attorneys alike who will come to comprise law firms will be encouraged to stick with the legal field by seeing and working with diverse attorneys.

Bringing informed ideas to firm diversity initiatives is also key to sustaining diversity and inclusion. Consequently, it is equally important to keep abreast of diversity and inclusion education. If there is to be a shift in the makeup of law firms, then the time for young lawyers to act is now. Everything that young lawyers do (or do not do) is consequential to sustaining diversity in the law in the long run. It is critical that young lawyers take hold of the everyday opportunities presented to them to promote inclusive diversity. So young lawyers heed the call: take ownership, take control, and take action towards shaping a more diverse and inclusive legal society.

Troy L. Bell is an associate in Irwin Fritchie Urquhart and Moore’s New Orleans, Louisiana office where he focuses his practice on mass-tort litigation that involves medical device and pharmaceutical companies, toxic torts, product liability, personal injury, and class-action claims. Troy grew up in Evanston, Illinois and now lives in New Orleans, Louisiana with his wife (Dr. Veronica Gillispie-Bell) and their eight-year-old son (Gregory).

Shauncey Hunter Ridgeway is an associate in Christian & Small's Jackson, Mississippi office where she focuses her practice on Bankruptcy, Creditors' Rights, Real Estate, Insurance Defense, and Civil Litigation. Originally from Monroe, Louisiana, Shauncey now lives in Brandon, Mississippi, about 20 minutes outside of Jackson, with her husband (John) and their feisty Corgi (Welshi).

Has there been a silver lining for you in this forced quarantine?

I will admit that my five second sprint downstairs (when I realize that a meeting is about to start) does not constitute much of a commute, and I am rather happy about that. Perhaps the silver lining for me is that I can work all the way up until the minute my family walks in the door around 6:10pm and then put everything down for an hour before the sun goes down. My husband, one-year-old son and I get to enjoy going out walking while my three-year-old son learns to ride his bike. There is such an important little sliver of family time that I have gotten back because I can squeeze that much more work productively into the day.

What is something different about your experience?

Organizations often host virtual networking events these days and ask the participants to think up a fun fact about themselves (ahem, queue the Young Lawyers Committee). I have always dreaded these sorts of questions because I feel rather pathetic like “what on Earth can I say?” Ug, I am just a normal professional leading a normal life—it is fun and rewarding, but I am not sure that I’ve got something special to say. I usually come up with something like “turns out I’m a crazy cat lady!” or “I’m a hardline fantasy football commissioner that doesn’t mess around.” But it feels a little weak—I can tell you now though that I had a rather interesting experience having my second born son on the day that live sports events generally shut down, March 12, which is also the day before Arizona shut down. One day I was having a baby, and the next day the hospital was locked down (I feel genuinely lucky that I did not have to go through labor with a mask on, I am so sorry to anyone who went through that!). We experienced an ad-hoc awkward door-and-curtain-all-open-revealingly-in-the-same-direction post-partum ward because the cozier maternity area was repurposed for COVID-19 patients in need. It was a little humorous (less so for my husband) that his fold out bench could not open all the way and hit the other side of the wall because the room was less than three feet wide.

As a woman in a client-centric career, can you say something about your maternity leave?

I believe we are all career-focused folks in this community, but it does not mean that we put our families second. It only means that we take our career objectives very seriously. It feels a bit absurd to take it so seriously, though, to the extent that I did not put up an out of office message on my maternity leave. Every time I read someone’s OOO message in response to an email I send, I always want to have a conversation with them and ask, “How are you able to do that? How can you disconnect knowing that you might be sending your client into a different direction?” I am envious. Perhaps unspoken, but still instilled in me through the career I have chosen, I have a hard time leaving anything to chance. I do not mean to imply that I think I am doing this the right way; instead, I am just fearful that as I have worked so hard to build my practice, it could easily walk away if I’m not there when a client needs something. The last thing I want a client to hear from me is “sorry, find someone else for this matter, and please, I hope that they don’t do a good job!” This may sound a bit manic, and it probably is, but maternity leave feels like an easy opportunity to lose clients because clients cannot decide when an important matter is going to arise. That being said, my choice not to put up an OOO during maternity leave meant that I was overburdened by work thoughts (even small ones) when I should have been caring, loving, babying, and resting (sleep when the baby sleeps, they say! … that does not happen).

How did you handle your child’s education during COVID-19?

The story is completely different for parents with children in school, real-school school (we call daycare school in our household). These parents had no option to send their children back to school, and I do not know how they all addressed the question of who is going to teach the kids at home? Or, perhaps, who is going to ensure that the children, with their short attention spans, are paying attention to video lectures and learning how to do mathematics problems with no one there to point out what they may be doing wrong?

The government decided that daycare was considered essential business, but school was not. My family fell into the category of people who kept their kids at home out of fear of the virus but not because we were forced to. That being said, social pressures can play a role in feeling judged for potentially exposing one’s children to disease when we have a choice. A family may literally have a choice, but it does not mean that it is one that is easy to make.

We had a difficult decision to make: keep everyone at home and fear the worst for our children’s education or send them to daycare, where they would have the opportunity to socialize and meet friends and learn to share and count and so on. The cost to have a nanny for us was approximately equal to the cost associated with each child going to each of their daycares. So having both children at home or both children in school (we call daycare school because they better be learning a lot there!) was roughly the same financial burden. However, sending one back and keeping the other at home would not get us a discounted rate from the nanny so cost would increase by 50 percent. We decided to send them both back in favor of socialization, discipline, and full-time learning engagement.

What is a significant challenge you have personally faced being a working parent, and how have you worked to combat that challenge?

As long as our experience has not been a unique “one-off,” I expect studies to start coming out relating to infants and toddlers having lived the beginning of their lives completely free of disease, tucked away in the safety of a home in which no one ever leaves… ever… no play dates, no fun with the kids down the street, no ice cream truck, none of dad’s trips to the grocery store (now food is all delivered and sanitized), none of mom’s trips to the Home Depot (just put the projects on hold), and no extended family. Grandma, grandpa, step-sis, neighbor, friend, cousin, uncle, aunt, kid that mowed the lawn for $20, random solicitors (thank you for not coming by) – they are all gone and there is no disease. Baby is not exposed to any of the everyday viruses, the normal bacteria, and now he is failing, stupendously, at fighting exactly those everyday viruses.

One of the hardest things I have encountered through this extended time working from home is when my youngest son went to daycare. He made it all of two days before he was sent home with a fever. From there we went to the doctor, no ear infection. The fever did not fall so we went to the doctor again, and then eventually to urgent care (these issues seem to fall on Friday evenings for us). We received no answers when his fever had been at 104 for a week, and so they admitted us into the ER. After poking and prodding and an IV for fluid (just to “help”), he was misdiagnosed and given an antibiotic. Within two days he developed severe hives all over his body and we stopped the antibiotic, went back to the pediatrician, and changed our course to “wait and see.” Then another week and no improvement, so back to the pediatrician and finally we were admitted into the hospital. No COVID-19, but he had now had three tests. All the poking and prodding again, a full bag of IV fluids, and ultimately no bacterial infection and no answers. Twenty-four hours pass, and then suddenly (answers when we feared there would be none), we found out. He had an adenovirus. An adenovirus! And they sent us home. Three weeks of agony and a fever constantly spiking over 104F, and all because of the “common cold.” Is there a lesson to be learned? Maybe. The impact of having no exposure, no “small doses” of virus and bacteria, can be bigger than it may seem.

I can go on because the story only gets more complicated with diarrhea and food intolerance and an ongoing struggle to meet the nominal growth chart accomplishments in height and weight. That is probably enough, though. We are all experiencing challenges which, for me at least, have become much more private simply by the nature of my limited interactions with friends, and even casual acquaintances. Perhaps that is one of the stranger things to reflect on these days—the value of casual interaction, and chit chat, and the smile that one gives and gets (sans mask) when approaching a passer-by. I look forward to getting that back!

Dr. Michelle Kuykendal has expertise is in failure analysis and safety design reviews of electrical and electronic systems. She has expertise in evaluating consumer products, automotive electronics, and household appliances for safety including recall-related investigations and product liability issues. Her focus includes the analysis of complex control systems, lithium-ion batteries coupled with their charging and protection circuitry, device construction quality, and complete system functionality. Dr. Kuykendal has performed numerous on-site and laboratory incident inspections and fire investigations relating to both home and industrial claims.

Rule 30(b)(6) requires the party seeking the deposition to describe the matters it intends to cover in the deposition with reasonable particularity. The party being deposed is obligated to produce one or more witnesses to testify on its behalf about those noticed matters. Now, with the new meet and confer requirement, the parties can also address exhibits or documents/information being sought and resolve any potential objections before the deposition. Not only will this help the party seeking the deposition, but it will also help prepare the 30(b)(6) witnesses and organization for the deposition.

The new meet and confer requirement is a useful tool in achieving transparency and clarity, especially if the notice is vague, ambiguous, overly broad, seeks privileged, trade secret, or commercially sensitive information, or where the notice imposes an unreasonable timeframe for the organization to adequately prepare designees to testify. Not only will this help the party being deposed designate the appropriate witness or witnesses, but it will also help the party seeking the deposition learn more about the organization and focus or fine-tune questioning in the appropriate areas.

So, what can we do? If you are the party seeking the deposition, consider identifying the 30(b)(6) notice as a “proposed” notice and include an invitation to meet and confer on the noticed topics. This will give the party being deposed an opportunity to consider the topics and respond with questions. Absent any response to the meet and confer invitation from the party being deposed, follow up by confirming that the topics are acceptable and ask for the designation of an appropriate witness or witnesses.

If you want to learn more or discuss the new meet and confer requirement, sign up for the DRI Young Lawyers Seminar taking place June 24–25, 2021, in Minneapolis, Minnesota. But do not stop there. Ask your firm to be a Seminar Sponsor and reap the benefits of complimentary registrations and firm exposure. For more details, contact the Sponsorship Committee – Chairs: Joseph Megariotis (jmegariotis@connellfoley.com); Andre Major (amajor@harrisbeach.com); and Ike Messmore (ike.messmore@bowmanandbrooke.com); Vice-Chairs: Luke Jenson (jenson@s-c-law.com); and McKinley Dunn (mdunn@lightfootlaw.com).

Joseph Megariotis is an associate of Connell Foley in Newark, New Jersey, where he focuses primarily on complex commercial disputes, including franchise and trademark litigation in the retail and hospitality sectors, as well as the defense of large exposure/catastrophic casualty events throughout the country.

Spruce Up Your Profile

Whether on Twitter or LinkedIn, your profile page will likely be the first place someone goes to find out more about you. It is important to take time regularly to spruce up your profile page, making sure it’s fully up to date and best reflects the profile you want to showcase to your audience.

Some things to keep in mind when updating your profile:

• Make sure your profile photo is up to date.

• Different platforms might call for different photos. LinkedIn is typically more professional and should usually be consistent with the photo used on your firm website. Twitter can be more relaxed, so use the opportunity to showcase a photo from outside of work.

• Highlight your most impressive posts using Twitter’s “pinned tweet” and LinkedIn’s “featured post” functions. This will ensure that your best content is front and center for everyone to see.

• Tell your audience what you do in your title/headline. Do not just describe yourself as a “Lawyer,” “Associate” or “Partner”—include your area of practice. Profiles that use the word “lawyer” tend to drive more search results; some examples are: “Product Liability Defense Lawyer,” “Commercial Litigation Lawyer specializing in Retail and Hospitality Disputes,” or whatever fits your practice.

Your profile page is your calling card! You should make sure you put your best foot forward and update it regularly.

Establish Yourself as an Authority/Leader

This tip is similar to our first tip, but it goes a step further. Now that you have created an engaging audience, it is time to establish yourself as an authority figure and a leader within your desired specialty. To accomplish this, you need to share valuable content from external sources, as well as sharing your opinions and thoughts on the topics. Your post should highlight how any given topic impacts the field you are in, or ideas for improving on a specific area in your industry. To make a larger impact, you should take this a step further by commenting on posts with engaging and thoughtful commentary. You should look to bounce your thoughts off other industry experts and make them aware of the fact that you can make a difference. The “name of the social media game” is engaging conversation.

Keep Your Profile Professional While Offering Relatable Personal Content

We are all much more than our given job title in our respective fields. To make a greater social impact, it is important to be relatable so that you can also have the likeability factor. Learn how to keep your profile professional while also sharing small details of your personal life or extracurricular activities/hobbies.

Some things to keep in mind when sharing your personal life on your professional profile:

• If you would not show it to your manager, don’t post it.

• When posting a personal photo, add a long caption that provides a story that will highlight your personality and motivate the reader to learn more.

• Concentrate on positive moments, unless you able to use a negative outcome to highlight a positive lesson learned.

• Make sure your personal image is in line with your professional brand.

Your profile page is ultimately the first look at your brand that the world will see in the era of social media. Be sure that everything you post, regardless of whether it is personal or professional, is always on brand.

Christopher Horkins is a partner in the Litigation Group at Cassels in Toronto, ON.  Sophia Bernard is an attorney with Lewis Brisbois Bisgaard & Smith LLP in Tampa, FL. 

It Can Help Your Career

Just as you learn about life through questions, you can also learn about the various career options before you. Is there someone at your firm who does exactly what you would enjoy doing in 5-10 years? Is there a lawyer you know who is skilled at a particular area that interests you? Do you know people who have leadership roles that you would like to have one day? Take the time to ask thoughtful, targeted, and intelligent questions. These types of questions show that you respect what they’ve accomplished and want to learn more about how they got to where they are today. You should take advantage of others’ experience by asking questions about the steps they took, and advice they might have for someone in your current position. Once, I asked a senior lawyer about how he got involved with the various organizations he was a part of. By asking more questions, we got to the point where he shared with me that he wished he would have become involved with those organizations much sooner in his practice. I took that information to heart and decided to get involved with DRI. That advice paid off, and I’m glad that I asked the right questions to get there.

It Can Help You Develop Business and Foster Relationships with Colleagues

Asking questions makes for deeper connections. You tend to feel more important when someone asks you something. For the most part, people enjoy talking about themselves—it’s a subject in which they are, of course, the expert. Questions also show interest and a sense of caring, and indicate to the other person that you are invested in the conversation and not just a passive participant. Next time you are talking with a DRI colleague, or someone in your local bar or SLDO, pay particular attention to one or two items that interest you about the other person, or that you’d like to know more about. By asking questions, you would be surprised at what you might learn about someone and what you might have in common!

Asking thoughtful questions can give you information about a colleague or potential business connection that makes them more memorable to you and makes reaching back out less difficult. It can be personal or professional—for example, you might ask questions about the pets they have, their favorite sports team, or a legal issue they are currently working on. This makes for a great opportunity to re-connect later by following up on how things went, a recent win, etc. At the heart of all your communications, you want to make sure it’s a genuine point of interest and connection, and the only way you can get there is by asking questions.

It sounds very easy, but often when we are involved in conversations, we simply nod along and think about what WE want to say next, instead of listening and asking about the other person. This is a great skill to practice at networking events, whether virtual or in-person.

It Can Help You Be a Better Lawyer

Beyond honing your skills at depositions and trial examinations, learning how to ask questions can help you improve the skills you need in practice. I have quite a few friends who are teachers, and in talking with them (and asking lots of questions!), they shared with me some of their philosophies behind encouraging students to ask questions. One of the points they made was that asking questions helps reshape assumptions and consider other alternatives. Talking things out by asking questions can help you arrive at new answers and different ways of thinking about a problem. Recently, I had an arbitration issue and I hit a roadblock. After talking through it with the partner and asking questions, we came up with an easy work-around that we didn’t initially think of while not compromising our position.

Students who ask questions are exposed to new ways of thinking, and it encourages collaboration. My work environment happens to be very collaborative; questions are encouraged as a way to find answers and solutions. My fellow associates and I are quite comfortable with popping by each other’s doors to ask about procedural questions, opposing counsel, or legal arguments we’re exploring. The partners welcome this as well. I’m also lucky to have a network of colleagues that I can reach out to with questions ranging from venue considerations to expert recommendations, and everything in between. The more questions you ask, the more ideas and solutions you gather that you can refer back to later in your “brain bank.” The next time you feel stuck, ask questions and see where it takes you.

Catherine Ava Kopiec is an attorney at Rogers Townsend & Thomas PC in Columbia, South Carolina. There, she focuses her practice in the areas of civil litigation, namely products liability, construction defect litigation, and general insurance defense. Catherine is first vice chair of the DRI Young Lawyers Committee.

What is your favorite part about being a lawyer?

I like that practicing law can be fast paced when you are juggling the day-to-day deadlines of litigation, but you also have ample opportunities to really slow down and dig into a motion or brief.

What is most important piece of advice you have been given related to practicing law?

The best advice I’ve received is to pick up the phone and give opposing counsel a call instead of emailing all the time.

What has been your biggest success in your legal career thus far?

Although I am only in my fourth year of practice, I’ve had many opportunities to argue dispositive motions in court. I now feel confident in the courtroom and have begun to really hone my oral advocacy skills.

When you are not practicing law, what do you enjoy doing?

Reading, picnicking at Balboa Park in San Diego, and spending time with my family and two cats.

What is your favorite movie?

Tommy Boy.

What was your favorite vacation or trip?

In college, I spent a month traveling around Greece as part of a UCLA travel-study program. It was such a unique opportunity to visit all the historical sites/ruins with experts in the field of Classics and Ancient History.

If someone is visiting your city, where is it essential that they go to eat?

I highly recommend picking up a California Burrito from Ortiz’s Taco Shop in Point Loma, then driving down to Sunset Cliffs Boulevard and enjoying the burrito while taking in the beautiful ocean view. Just watch out for hungry seagulls!

Melissa H. Rose recently joined the Product Liability team at Perkins Coie LLP. Melissa has experience representing companies in product liability, breach of warranty, personal injury, and wrongful death matters. Melissa graduated cum laude from the University of San Diego School of Law in 2017. During law school, she externed for Administrative Presiding Justice Judith McConnell at the California Court of Appeal, Fourth Appellate District, Division One. She also served as Research Editor for the San Diego Law Review. Melissa graduated cum laude from the University of California, Los Angeles, and received her bachelor’s degrees in Classics and Political Science.

What DRI committees (other than Young Lawyers) are you most interested in, and why?

I am interested in the Employment and Labor Law Committee, which aligns with my interests in employment law and my current work with Rose Kallor. I am also interested in the Litigation Skills Committee, as I hope to develop and foster those skills for trial practice, as well as the Lawyers’ Professionalism and Ethics Committee, as I wish to better understand the ethical and philosophical principles that underlie the legal profession.

What is your favorite part about being a future law student and lawyer?

With eager anticipation, I am counting down the days until law school begins. I have had the opportunity to engage with legal issues and the practical application of the law in my past positions as a law clerk at two different firms and as part of my undergraduate academic curriculum; however, I am eager to dedicate my full academic focus to the study of law. I look forward to, as a future lawyer, having the opportunity to advocate strongly for the interests of clients, being an active participant, through litigation, in shaping and developing the law, and engaging in the great tradition of adversarial argument.

When you are not working, what do you enjoy doing?

Collecting antiquarian books, travelling, during non-pandemic times, and reading texts on British history and legal history, chiefly during the time of the Stuarts. I have also recently taken up tennis, which I’ve found a delight and have made (some) progress on.

What has been your biggest success in your career thus far?

Assisting counsel at Rose Kallor with the preparation of a 12(b)(6) Motion to Dismiss in an employment discrimination case and developing a memorandum based on original research and analysis that provided vaccine prioritization guidance to Connecticut municipalities. The opportunity to be welcomed as an engaged member of the firm, by delivering actionable legal research and analyzing litigation strategy in my work on the 12(b)(6) Motion was very rewarding; and responding promptly to urgent client needs by developing a vaccine distribution plan that successfully navigated the fraught area at the nexus of law and ethics was both informative and exhilarating, reminding me of the crucial and ever-present place of the law in contemporary issues.

What is most important piece of advice you have been given related to practicing law?

Always grant fair and reasonable requests for extensions in the process of litigation, as you never know when you may need the same from your opponent.

On a separate note, I have been conferred a reminder to carry forward to law school and practice: Erie Railroad Co. v. Tompkins stands for the proposition that there is no general federal common law, but this is frequently misinterpreted to mean that there is no federal common law at all, which obviously cannot be true because the McDonnel Douglas burden-shifting analysis I work with every day.

What is the greatest movie you’ve ever seen?

Casablanca, starring Humphrey Bogart and Ingrid Bergman: hard to beat an old Hollywood classic of such unparalleled romance.

What was your very first job?

An intern, from freshman to senior year, in the Procurement and Risk Management department of the Town of Barnstable, Massachusetts. It was there that I first came into contact with issues of insurance defense and had an opportunity to evaluate claims over injuries from cracks in municipal sidewalk and slip and falls during the winter on town property.

If someone is visiting your city, where is it essential that they go to eat?

In Hartford proper, Carbone’s—for Italian cuisine—is truly an institution and has an excellent tableside bananas foster à la the late ‘60s. In nearby West Hartford, for lighter fare, Avert offers outstanding French cuisine that evokes feelings of a pleasant bistro on the Côte d’Azur, not to mention an outstanding array of cocktails including my personal favorite, the Sidecar.

Brendan W. Clark is currently an undergraduate student at Trinity College in Hartford, Connecticut and a Law Clerk at Rose Kallor, LLP, a strategic labor law and employment litigation firm with offices in Hartford, Connecticut and New York, New York. At Trinity College, Brendan is a senior Public Policy & Law and History major. He will be attending law school this fall, focusing especially on his two interests: contract litigation and employment law. Brendan hopes to practice after law school in a firm in Connecticut or New York.

• Dirga Pranayama or “Three- Part Breath”: Three-part breath is helpful when faced with a stressful situation and you need to regain control of your mind and body. This breath exercise can be performed anywhere, although traditionally it is performed lying down or in “easy seat” (crossed legged position). Become aware of your breath and make no effort to control it. Then, inhale and exhale through your nose, allowing your belly to expand with the breath. Once your belly has filled with air, pause, and exhale all the air out through your nose. Perform this inhalation and exhalation three to five times. On your next inhale, continuing to breathe through your nose, take the breath down to your belly, allowing it to fill with air, but before completely exhaling, take another sip of air and allow your chest and rib cage to expand. On your exhale (still through your nose) allow the breath to leave your chest and then your belly, drawing your navel to spine on the exhale to ensure that all stale air has been sent out. Perform this two-part inhale and exhale three to five times. Next, bring the breath in through your nose and allow your belly to expand, taking another sip of air and allowing your chest to expand, before inhaling once more, bringing the breath through your upper chest and collarbone, feeling the expansion and rise of your chest. Pause, and then on the exhale, take the breath down from your upper chest, to your ribcage, and finally your belly, drawing your navel toward your spine to ensure all breath has been exhaled. Take this at your own pace, upwards of ten breaths or until you are calm.

• Ujjayi Pranayama or “Ocean Breathing”: This is another exercise that can improve your concentration and release tension. Ujjayi breath sounds like the ocean, or like the sound of a certain villain in a certain sci-fi film series makes who dresses all in black (and is probably Luke’s father) when he breathes. Keeping your mouth closed, breath through your nose and constrict your throat to the point that your breathing makes a rushing noise. You can also imagine that you are fogging a mirror with your breath while keeping your mouth closed. Using your diaphragm, keep your inhalations and exhalations equal in duration.

• Sama Vritti Pranayama or “Box Breathing”: Box breathing is the most basic breath work of the three options provided, designed to bring emotional awareness and a sense of calm. In box breathing, you are counting your breath in increments of four. Breathing in through your nose, count to four and fill your lungs with the breath. Pause and hold your breath for four counts. Exhale for four out through your nose. Hold the exhale for four breaths. Repeat until you are calm. Box breathing is traditionally performed with your eyes closed.

Remember, you can practice breath work at any time or place. And, while these three exercises are a great way to practice, even inviting stillness and slowing your breath may offer benefits, especially at moments where it can seem too daunting to try anything else. Next time you find yourself challenged by an upcoming deadline, or deposing a difficult witness, take a moment to breathe.

Kelly Calder Mowen is a founding partner of Orndorff Mowen PLLC, a product liability and toxic tort defense law firm based in West Virginia with expertise defending claims nationwide. In addition to the practice of law, she is an RYT-200 who teaches yoga weekly at a local studio.