The Oscars are happening this weekend, so it’s a good thing that I finally got around to seeing The Social Network (the one about how Facebook started), which is one of the best-picture nominees. What a great film. Great acting (Justin Timberlake notwithstanding). Great directing. Great cinematography. But bad depiction of what is called the discovery process, in pre-trial civil litigation. With all due respect, the writers did a great job of telling the storyline through the characters as they were purportedly being deposed; those depositions were a result of two lawsuits filed against Facebook’s founder and CEO, Mark Zuckerberg. Despite the lack of realism in the depositions themselves, the overall storyline is quite realistic insofar as both lawsuits are settled, and there are no court trials.
Given the rising costs of litigation, and litigants’ need for closure and certainty, among other things, about 98% of all civil cases don’t go to trial. Many of these cases are settled, many are dismissed, for one reason or another, but no matter what happens to each of the cases that don’t go trial, they are invariably disposed of because of evidence that comes to light during the discovery process. The discovery process is basically the time period starting after a lawsuit is filed, lasting until a certain date that the court sets prior to a trial. During this time, both sides exchange information and documents, and usually each side takes at least one deposition, which is akin to an out-of-court examination of a witness. Depositions are taken under oath, and usually recorded by a stenographer, or sometimes by video.
Although depositions are similar to trials to the extent that attorneys ask questions of witnesses, and the witnesses have to answer truthfully, that’s about as far as the similarity goes. This is because depositions aren’t really about winning your case per se; their purpose is to gather as much information as you can about the other side’s case: What do they know? Who knows what? Why do they think they are going to win? Because the purpose of the deposition is to gather information, the deposing attorney’s style and demeanor usually needs to be quite different than what you’d see on Boston Legal, Law & Order, or any other courtroom drama.
But there is one problem with learning how to take and defend depositions effectively. They don’t teach it in law school, and the only way to learn how to do it, is to jump right in and try. Unfortunately, although having deposition experience helps an attorney to become comfortable with basic questioning techniques, it does nothing as far as teaching proper questioning techniques. Some attorneys are lucky enough to have a seasoned litigator take them under their wing, to teach them the ins and outs of depositions, but it’s been my experience that they are the exception rather than the rule. If you don’t have that opportunity, the only way to really learn how to be effective in depositions is by studying books, and taking special classes. Recently, I attended an intense, advanced deposition skills workshop, presented by the National Institute of Trial Advocacy, and despite having attended, taken, and defended countless depositions over the past few years, I was amazed at how much I learned.
The bottom line is this: Because 98% of civil cases are determined before trial, an attorney’s knowledge and experience in preparing for, and taking and defending depositions is more critical now than ever. An attorney who is savvy in the deposition and discovery process can oftentimes mean the difference between leveraging a settlement and going to trial, or perhaps worse (or better, depending on which side you’re on) having the case disposed of on summary judgment.
It’s hard to say whether Zuckerberg’s attorneys were deposition savvy or not, in The Social Network. It’s probably best not to even think about it, though, because good or bad, the attorneys’ roles in the film don’t have any effect on the overall quality of the film. I hope it wins every category for which it was nominated.