Discovery Dispute

Erin Andrews, an ESPN reporter, was previously the victim of a breach of privacy when a miscreant videotaped her through the peep hole of her hotel room.  The expected lawsuit followed. Now we see a public battle over discovery as her attorneys try to block attempts by the defense to obtain employment and payroll records and doctors' records. 

Student often think that litigation is easy. You file a lawsuit and in a few months you get a bunch of money. After all, on TV everything is over in a one-hour time slot. Students have little opportunity to consider the battle that goes on discovery and the nature of collecting the evidence necessary to prove a case. I see that as an important part of our job - shining a light on the true nature of litigation.

Depositions Can Tell You Alot About a Witness

Depositions are an effective way to gather information.  But they also serve the important function of allowing the lawyers to evaluate a witness' demeanor and presentation - important elements affecting a jury's impressions of credibility. The deposition clips below may be considered revealing about the potential value of these witnesses in the courtroom.

The Importance of Witness Preparation

Some things speak for themselves:

True Nature of "Discovery": But Don't Expect a Photocopy

Thanks to the WSJ Law Blog for this delightful example of the true nature of discovery in civil litigation.  This kind of conduct gives some credence to the words of the late US Supreme Court Chief Justice William Rehnquist:

Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client's cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty.

Walters v. Nat. Assoc. of Radiation Survivors, 473 US 305 (1985) quoting Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1287-1290 (1975).

Click on the image below to read a portion of the deposition transcript where the deponent claims to not understand the reference to a "photocopy machine."

Deposition Fail!

Real depositions are mostly deadly boring. These deposition clips have some zip to them.

This witness  broke 2 depo prep rules:
- Answer "yes" or "no" and refrain from offering any information.
- Keep your cool.
WARNING - EXPLICIT LANGUAGE!



This time it's the lawyers that lose their cool. So much for professionalism.
WARNING - EXPLICIT LANGUAGE!



Lawyers, again.  WARNING - EXPLICIT LANGUAGE!




The witness here is Larry Flynt, editor of Hustler Magazine.  This deposition was part of the Hustler v. Falwell case.  He appears to be an uncooperative witness.
WARNING: EXPLICIT LANGUAGE! After the first 2:00 SEXUALLY EXPLICIT CONTENT! as Flynt attempts to prove that the allegations made in the ad parody were factually correct! (I wouldn't show this clip in class beyond the first 2 minutes - but it does give some interesting insight into the discovery process in a famous case.)

Preparing Witnesses

In my experience, students are not merely suprised, but are shocked to discover that lawyers typically prepare witnesses for testimony. Failure to properly prepare a witness may, in fact, be considered malpractice. Either of the videos below reinforce the point.  There are a wealth of related videos available.  I chose the first one below for its candor and the second one for its brevity.