Stewart Weltman, who wrote that second linked article, was generous enough to chime in on my post on a few suggestions for cutting costs (if you get a chance, see his blog — inspiring stuff for lean and mean plaintiff’s lawyers):
It is one thing to say the words but it is another thing to put it in practice. For instance, while unnecessary depositions are one of the biggest black holes of discovery costs, suggesting that depositions be replaced by witness statements reflects a naivety and superficiality about the actual process of preparing for trial.
Of course you try to obtain witness statements if you can, but anyone who has handled complex litigation matters knows that obtaining (1) witness statements from hostile witnesses is an impossibility, (2) witness statements from neutral witnesses can be beneficial but because most lawyer up usually provides little benefits and (3) witness statements from friendly witnesses is rarely a good tack.
All true, though in my experience there’s plenty of room for fat to be trimmed from the typical business / commercial litigation deposition. I can’t count how many times I’ve seen:
- multiple lawyers defending a deposition;
- lawyers flying out to meet with clients the day before a brief phone deposition;
- depositions of employees / corporate representatives who only know facts that could have been or already have been answered by written discovery;
- day-long depositions of witness’ spouses, siblings, parents;
- depositions where I make a witness read in a handwritten text, because opposing counsel refused to stipulate anything; and,
- depositions where I make a witness read through extensive materials in order to answer questions, because opposing counsel instructed them not to review any materials, in spite of my notice of deposition.
All of those tactics can have a place, particularly if you’re playing hardball. Ordinarily, they’re a complete waste of everyone’s time, which is a big problem if you’re paying the lawyers by the hour.
It’s true, I rarely get useful "signed witness statements," but I frequently get useful interrogatory answer in lieu of whole depositions. If defendants were willing to stipulate to more (and defense is usually what businesses are complaining about), they’d save a lot of time and money.
The biggest problem with that is how a good deal of "defenses" are stupid and so the "defense" is predicated on confusing the issues as much as possible, which encourages forcing the plaintiff to prove even the most basic facts. Can’t help GCs there — consider paying up.