It was a case in which a partner from a very large law firm was representing a client and was suing my client. The first deposition took eight hours, and I was stunned because I couldn’t figure out from his questions what his strategy was. I generally can get a pretty good idea of that from a deposition. The same thing happened on the second deposition.

The Realization: A Lawyer Without a Strategy

During the middle of the third deposition, it dawned on me that I couldn’t figure out anything about his strategy because he didn’t have a strategy. He didn’t know what he was doing. From that point, we were able to build our case because we knew that the plaintiff in the case was lost.

Understanding the Basics of Discovery

What I talked about were basic explanations about how to use Discovery, how to focus Discovery with an eye on making an effective response to a summary judgment motion, and ultimately being able to prove a case at trial.

The Key to Preparing for Summary Judgment

The best way to prepare for summary judgment and trial is to ensure that, from the beginning of your case, you know what the elements are that you have to prove or the elements that you have to defeat if you’re defending a case. You must focus your Discovery specifically on getting proof on those elements and avoid broad and overly encompassing Discovery that causes you to lose sight of what you need to prove or defeat.

The Importance of Affidavits and Declarations

Affidavits and what needs to be included in them are critical for responding to or making a motion for summary judgment. Affidavits, also called declarations in federal court, only need to be made under penalty of perjury and not sworn to. These are the ways we get evidence before the court.

Structuring a Proper Affidavit

Crucial to submitting a proper affidavit or declaration is setting forth the foundation for the evidence that follows. Since summary judgment requires the submission of evidence to the court that would otherwise be admissible at trial, you must preface the ultimate factual statement with a series of facts explaining why the person was in a position to have observed or known what they are stating.

The Danger of Conclusory Statements

A lot of times, attorneys draft affidavits that are conclusory. For example, in a sexual harassment case, an affidavit might state, “I was sexually harassed by my boss.” This is a conclusory statement. The statement needs more detail—what did the individual do that led to the conclusion of harassment? What was the workplace environment where this occurred? Too many times, lawyers jump ahead to a conclusion without laying the proper foundation.

The Most Important Aspect of Depositions

The most important thing to think about when conducting a deposition is the preparation done beforehand. You need to focus on the elements of your case and determine what you want to get from the witness that will support your case or your defense against a claim.

Strategic Questioning in Depositions

If you’re taking a deposition, you must focus on getting admissions from the witness that support your case. Likewise, if you’re defending a deposition, you need to pay close attention to the questions being asked to understand your opponent’s strategy. You can learn a lot by listening closely to the line of questioning.

Understanding Hearsay in Wisconsin Law

The question of what isn’t hearsay is crucial. This includes statements of a party opponent, statements of an agent, and statements in which a party opponent manifests belief. These are valuable admissions that can be used against an opposing party, even if they are not directly made by the party itself.

Structuring Discovery to Capture Non-Hearsay Statements

It is very important to look at the definition of what isn’t hearsay to structure your Discovery effectively. Finding such statements can strengthen your case significantly.

Using a Proof Chart for Legal Organization

A proof chart can be as formal or informal as you want, but its purpose is clear—it lists the elements that must be proven or defeated in a case. You categorize the information gathered in Discovery under these elements to track progress, determine further discovery needs, and assess evidence for summary judgment or trial.