May the Record Reflect
May the Record Reflect
67. Eight Steps for Handling Deposition Exhibits, with John Farrell
Depositions are a key building block in legal disputes, especially for cases that proceed to trial. According to veteran trial lawyer John Farrell, properly handling an exhibit so it’s admissible at trial is an overlooked skill that can, and should, be practiced until it becomes second nature. In this episode, John reveals eight crucial steps for handling documents that ensure your deposition flows smoothly and exhibits are admitted for trial. He breaks down the process step by step, gives the exact sample language that ensures exhibits are properly marked and admitted, and suggests ways to keep court reporters and judges pleased with your professionalism.
Topics
3:59 Asking questions before marking a document
5:35 When witnesses want to see a document first
7:48 Making deposition exhibits admissible at trial
8:30 Eight steps for handling exhibits: Step 1
9:36 Step 2
10:35 Step 3
12:08 Demonstrations of marking different documents
25:26 Step 4 , and helping the court reporter
27:59 Step 5, and the important question to ask your witness
29:12 Step 6, and two more important questions
32:15 Step 7
33:37 Step 8
35:35 Three-article series on depositions
37:23 Signoff questions
Quote
“‘Bears the word’ . . . is the safe phrase that judges like to hear.” John Farrell
Resources
John Farrell (bio)
Deposition articles (1, 2, 3)
Refreshing Recollection and Impeachment (article)
On today's episode of May the Record Reflect.
John Farrell:In court, you move Exhibit 7 into evidence before you use it or play with it or show it, right? The problem at depot is that we never do that at depot. So we get used to not doing that. And this, by the way, judges say marking's bad. They say, how do you know that it's bad? But they see this happens all the time. They can tell when a lawyer has been in depo because they say, what is it? Oh, it's a letter I wrote. How do you know that? Because that's my signature. And we put it up on the screen. And judge goes, take that down. Because why? Because you didn't move it into evidence first. So the idea is silently to yourself, say, move exhibit four into evidence. And do you feel good about that? First of all, you're reminding yourself that you have to do that in real life at a trial. But also, if you've been charged with making this admissible, say that silently to yourself and you go, yeah, I'd move it in. I mean, it would get in. So it's silent to yourself, but get in the habit of whispering it to yourself because you will forget at a trial. And it's a good way to test whether you've made it admissible.
Marsi Mangan:That was John Farrell, and this is May the Record Reflect. Hello and welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, Marci Mangan, and in today's episode, we're getting insider intel on properly marking documents as exhibits during depositions. I'm joined by John Farrell, who has tried over 120 cases during his legal career, which translates into thousands and thousands of depositions, both taken and defended. John is of counsel at the Silicon Valley office of Fish and Richardson, where he's recognized as a top trial lawyer in intellectual property matters and, most recently, pharma practice. Before he entered private practice, John was an assistant DA in the San Francisco district attorney's office, where eventually he served as head attorney of the homicide unit. One of John's most significant clients remarked that he took, and I quote, a brilliant and pivotal deposition of an in-house lawyer that resulted in a complete victory based on the doctrine of unclean hands. Now, wouldn't you love to take a brilliant and pivotal deposition yourself? Of course you would. That's why I'm delighted that John Farrell wanted to be a guest on the podcast. Here's our interview. Our guest today is John Farrell. He is a NITA faculty member who is of counsel at Fish & Richardson in Silicon Valley. Welcome, John.
John Farrell:Well, thank you. Thank you for having me.
Marsi Mangan:Yeah. You've written a series of three articles on depositions that are crammed with great intel that derive surely from the thousands of depositions you've taken over your legal career. In your latest article on depositions, you add a few important skills to the reader's toolbox. So today we're going to be talking about using and handling exhibits. Now, you write at length about the process of asking questions about a document before marking it as an exhibit. Why is it so important to ask the witness questions before you mark a document as an exhibit? Or maybe to put it another way, what's wrong with not asking questions before marking it?
John Farrell:I don't know if there's anything wrong. There's two reasons why I recommend that you talk about an exhibit before you put it in front of the witness. One is you want to practice your trial skills at deposition. And the second thing is at a deposition, you want to find out more than what you have on the document. So what I mean by that is when you're at trial, you want an exhibit to reinforce or repeat testimony, not replace it. And at deposition, what I have found in general is that when you give a witness an exhibit, all they're going to do is read that exhibit back to you. Experts are famous with this. Your first question might be, what do you do for 11? And they'll say, I'll need to see my expert report so I can answer that accurately because they know they want that exhibit in front of them. So in general, what I'd like to have is to try to ask as many questions about the exhibit or the event that's in the exhibit or discussed in the exhibit before you put the exhibit in front of the witness. And that's a practice that at trial, when you have your own witness on the stand on direct, and you're going to say to them, after you got this letter, what did you do? And they said, well, I sent an email. Then you'll go through this process. But they mentioned the email first. You want to get used to that habit, I think, for trial and at depo as well.
Marsi Mangan:So not everyone has a photographic memory of every document they ever come across, and you kind of touched on that, that people want to have a document in front of them. What if the witness does want to see the document before they answer your questions?
John Farrell:That will happen a lot, but usually it's not the witness. Experts are good at that. It's usually the defending counsel says that. Because they'll see that you have something in your hand, and you'll ask the witness, well, after you got this document, Letter, what did you do? What do you mean? Well, you sent a letter, right? And now everyone knows you've got something in your hand. And oftentimes, opposing counsel at a deposition will say to you, counsel, if you are reading from something, it's only common courtesy to give it to the witness. And your answer to that is, I'm good. There's no common courtesy exception to the evidence code. Under that theory, you have to give me your notes too. However, if the witness says, I need to see this exhibit in order to answer accurately. In the end, you probably have to give it to the witness. I suggest, though, that you deflect that for a while. And if the witness says, well, I'd like to see the letter, I always say, let's see what we can talk about before we get to the letter. Why did you write the letter? What were you trying to do? I still think you can push the witness. But in the end of the day, if the witness says, in order to give accurate testimony, I need to see that exhibit, you'll have to give it to them.
Marsi Mangan:Well, then let's move on to how to handle exhibits when you want to make a document admissible at trial. Why do you have to make sure that a deposition exhibit is admissible at trial? If both proceedings involve the same documents and the same witness under oath, wouldn't the process for deposition exhibits covered at trial?
John Farrell:You could if you are sure that witness is going to be at trial. Okay. But... I have taken many depositions of third parties that you can't make come to trial, number one. Number two, there'll be 10 exhibits in an entire case out of thousands that are absolutely essential for your case. And a lot of times you'll be instructed when you take the deposition, get this document, I think sometimes they say authenticated. What they mean is admissible at trial. And if you do this groundwork at the deposition, this exhibit will come in no matter what happens to that witness or what happens at the trial, with that testimony, it's coming into evidence. And I think that's a good thing to have in hand before you go to trial. Also, you want to use your deposition to practice your trial habits. And the number one complaint federal judges tell me about lawyers that appear in front of them is they can't handle exhibits properly to get them into evidence. So by doing this process at deposition with at least two or three of them, you are learning this habit that you'll do a trial.
Marsi Mangan:Building muscle memory.
John Farrell:Yep, exactly.
Marsi Mangan:So in the article, you lay out eight steps to follow in handling exhibits. What is step number one?
John Farrell:Step number one, the short version I call mention, which is I want the witness to mention the exhibit first, that it exists. An example would be... Taking it out of civil practice, if you're deposing a police officer, you say, what was the first thing you found at the scene? I want him to say a knife. What I don't want to do is say, what'd you do? I went to the scene. I'll have marked exhibit one this knife. No one's mentioned that before. I want the witness to mention this thing exists before you start talking about it in any more detail.
Marsi Mangan:So that's why step one is so critical.
John Farrell:Yes, I think that's the key to it, which is, and again, when you're deposing someone, they're not always your friend. So you can often say, what did you do after you got this complaint? Well, I sent an email. That'd be great. But if the witness says, what do you mean? You can lead them, right? You can sort of say, well, you sent an email, right? Either way, he's mentioning that exhibit exists.
Marsi Mangan:I see. So can we move on to step number two then?
John Farrell:Sure, absolutely. Step number two is I want the witness to describe the exhibit. And the reason I want that to happen is twofold. One is to avoid a problem that we often get when we mark an exhibit, especially a trial. And the other thing is to get the witness pretty much to be ready to agree that the exhibit is what it says it is. What I mean by that is I want the witness to describe this exhibit. It's easy with physical objects, like a Coke can. What did you find? Well, I found a Coke can. Describe the Coke can. You know, read with the word Coca-Cola. And I get that, but documents have designs too. The to and from line, the signature line, the letterhead line. And so I want the witness to describe those features, and then I will use what that witness says to properly mark the exhibit.
Marsi Mangan:Okay, great. So that would lead us then to step number three, which is...
John Farrell:That is marking. I will have marked is the phrase, right? The short word I have is mark, but I will have marked as exhibit four. Then you have to give a description. And the challenge with marking, and you see this a lot at trial, is you get yelled at by the judge a lot because you'll say, I will have this marked as exhibit four. The judge will say, well, you got to be more specific than that. You're going to have more than one exhibit. So then the poor lawyer says, I will have marked as exhibit four this letter that Joe Smith wrote to Jane Smith. And the judge will yell, you're testifying. What do you want me to do? I want you to be in the middle. You can say whatever a witness says first. So when you say, I will have marked as exhibit four, you will mimic, repeat the description the witness gave you in this describe step.
Marsi Mangan:Okay. So that's the good habit that you need to develop.
John Farrell:Yes.
Marsi Mangan:So that you are not annoying your judge.
John Farrell:Well, not only that's number one, because it drives judges nuts. And number two, the witness hears that you're describing it just the way he described it. So he's going, yeah, that's probably the exhibit they're talking about. It's encouraging the witness to cooperate with you.
Marsi Mangan:Okay. So in step number two, you had talked about how to ask the witness to describe a document. Yes. why don't we do some demonstrations together for a variety of different documents that you might need?
John Farrell:That would be the easiest way.
Marsi Mangan:Okay, that sounds great. So why don't we start with a letter that was written in response to an incident, and the incident actually in this instance doesn't matter. So if you want to get started, we'll get
John Farrell:going. Sure. So what did you do after hearing about the incident?
Marsi Mangan:I wrote a letter to the head of Stanford Electronics.
John Farrell:Whose letterhead was on that letter?
Marsi Mangan:My company's, Just the Best People, Inc.
John Farrell:And who did you write the letter to? I
Marsi Mangan:wrote it to Kate Kelly at Stanford Electronics.
John Farrell:And whose signature would be on the letter then?
Marsi Mangan:Oh, mine, Marcy Mangan.
John Farrell:And approximately when did you send this letter?
Marsi Mangan:Summer of 2020.
John Farrell:I will now have marked as Exhibit 6 a letter on the letterhead of Just the Best People Incorporated that is addressed to Kate Kelly at Stanford Electronics. It bears a signature that reads Marcy Mangan and bears the day July 4th, 2020. And the letter has base numbers 12345 to 12348. Okay.
Marsi Mangan:So you asked me a lot of open-ended questions to get me to talk. What would you do if I didn't talk?
John Farrell:Right. Because when you're taking a deposition, this is not your buddy, right?
Marsi Mangan:Yeah,
John Farrell:right. So what I always do is I first try to see if they'd be cooperative, and then I will lead them otherwise. And so the way I look at this is, as a background, there are three categories of questions. Category one is, you tell me. Category three is, I'll tell you. And category two, avoid, which is the do you, did you questions. Okay. What we just was category one. Now we'll, let's go through one where you decide not to be my friend and let's see what happens.
Marsi Mangan:Sounds good.
John Farrell:So what did you do after hearing about the incident?
Marsi Mangan:I don't know what you're talking about.
John Farrell:Well, you wrote a letter to the head person at Stanford Electronics, right?
Marsi Mangan:Oh, that. Yes.
John Farrell:Yeah. And that letter was on your company's letterhead, right?
Marsi Mangan:It would have been.
John Farrell:And your company is just the best people incorporated?
Marsi Mangan:That's right.
John Farrell:And you wrote the letter to Kate Kelly at Stanford Electronics, right?
Marsi Mangan:Yes.
John Farrell:Your signature was on that letter, right?
Marsi Mangan:Yes.
John Farrell:And you sent that letter in the summer of 2020. Does that sound about right?
Marsi Mangan:That does sound right, yeah.
John Farrell:I will have marked as Exhibit 6 a letter on the letterhead of Just the Best People Incorporated that is addressed to Kate Kelly at Stanford Electronics. It bears a signature that reads Marcy Mangan and bears the date, July 4, 2020. And the letter has bait stamp numbers 1, 2, 3, 4, 5 to 1, 2, 3, 4, 8.
Marsi Mangan:Okay.
John Farrell:Now, I will say this. There's a magic language you have to keep in mind when we hear that marking, which is bears the words. Because if you instead said, I'm going to have marked with exhibit 6 a letter that has some person's signature, you're testifying. I'm just saying it bears a signature that reads. It's address two. I could be wrong about this. I'm just reading my English reading skills. So bears the word address two is the safe phrase that judges like to hear.
Marsi Mangan:Great. That is good intel. So unlike a letter, which would be on letterhead, that looks very distinctive, why don't we demonstrate how to mark an email? since they all rather look the same.
John Farrell:Well, and also who writes letters anymore? The only time you send a letter is it's attached to an email, right? Exactly. I've yet to see a stamp in the last 10 years. So let's do an email. They're pretty common.
Marsi Mangan:Okay. All right. I'm ready if you are.
John Farrell:Okay. So after you had that call with Acme's CFO, what did you do?
Marsi Mangan:I sent an email to my company's CFO, CEO.
John Farrell:And who would be on the two line there?
Marsi Mangan:John Armstrong, who is the CEO of Magellan Industries.
John Farrell:And whose email address would be on the from line?
Marsi Mangan:Mine, mmangen at Magellan.com.
John Farrell:And why did you send the email?
Marsi Mangan:I wanted to let John know that ACME had called us back.
John Farrell:And approximately when did you send this email?
Marsi Mangan:Well, it would have been the same day as the call, so sometime in April of 2021.
John Farrell:I will now have marked as Exhibit 9 an email with a to line that reads jarmstrongatmagellan.com and a from line that reads mmanganatmagellan.com. The subject line reads, return call from ACME today. And the email bears the date, April 25th, 2021. The email is Bates numbers 23456.
Marsi Mangan:All right. I noticed that you said bears the date.
John Farrell:Yep. And again, this sounds strange, but you want to get into this habit, muscle memory, as you put it, Marcy, because at trial, if you say, and it's dated July 4th, 2021, the judge is going to yell at you because you can't testify. I'm not saying that's the date. It just bears that date. I'm reading it, Your Honor. And if you start doing this, judges will sustain all of your objections because you're going to be the only one handling exhibits correctly. And so that's why. I don't want to have any I don't knows in this thing. So you as the writer know your email address at the time. I doubt that you'd remember the other person's email address. So that's why this sentence is, who would be on the two line? Their name is good enough because I don't want to hear what's that person's email address. If I hear any I don't knows, I'm getting nervous about the exhibit.
Marsi Mangan:So what if I am, again, not helpful as your witness? how would marking this email exhibit proceed?
John Farrell:Okay, let's go through it again and again. I always give you the benefit of the doubt and see if you'll cooperate. And if not, I'll lead you. And what I found, by the way, is after you lead the person three or four more times, they'll just start being cooperative. So let's try it. Got it. Okay. After you had that call with the CFO of Acme, what did you do?
Marsi Mangan:I'm not sure what you mean. Oh,
John Farrell:you sent an email to your CEO, right?
Marsi Mangan:Oh, yes, that's right. I did.
John Farrell:And that email was sent to John Armstrong, the CEO of Magellan Industries?
Marsi Mangan:Yes.
John Farrell:And the email address on the front line would have been yours, right? Sure. And that would have been mmangan at Magellan.com, right?
Marsi Mangan:Correct.
John Farrell:And you sent that email to let Mr. Armstrong know about your call with Acme that day, right?
Marsi Mangan:Yes.
John Farrell:And you sent that email the same day of the call, so in April of 2021? Yes. Yep, that's right. I will now have marked as Exhibit 9 an email with a to-line that reads jarmstrong at magellan.com, a from-line that reads mmangan at magellan.com. The subject line reads, return call from ACME today, and the email bears the date April 25th, 2021. The email has base numbers 23456. Great. And I should add, by the way, You need to include the base numbers after all that at a depot. Otherwise, your paralegals will hate you to the day you die because that exhibit will be used in a number of depots. And eventually, when you get to a trial, the paralegal has to collate all that to make sure they only have one exhibit. And without the base numbers, they have to do that by hand.
Marsi Mangan:Yeah, good point. Another document that you might encounter in a deposition is a memorandum.
John Farrell:Yep. Let's go through one of those. Okay. And you'll see it's, it's, this isn't rocket science because if it was, I couldn't do it, but let's try. Okay. Dr. Mangan, how did you report the findings of your polymorph experiments?
Marsi Mangan:I sent a memorandum to my scientific supervisor and copied the entire design team.
John Farrell:And when did you write this memo about?
Marsi Mangan:September 14th, 2015, the same day that I completed the experiments.
John Farrell:And when did you send the memo to your supervisor copying the design team?
Marsi Mangan:On the same day, September 14th, 2015.
John Farrell:And who was your scientific supervisor who you sent the memo to?
Marsi Mangan:It was Grant Rock.
John Farrell:And about how many people are on the design team that you copied?
Marsi Mangan:I would say 15 to 20 people.
John Farrell:I will now have marked as Exhibit 6, a six-page document with the heading Memorandum, bearing the date September 14th, 2015. The two-line reads, Grant Rock. The from line reads, Marcy Mangan. The CC line has 18 names. And the subject line reads, results of experiments on polymorph structures. The memo has Bates numbers 34567 to 34573.
Marsi Mangan:And yet another document that you might encounter in depositions is the dreaded PowerPoint. It
John Farrell:still works. Yes, it still does. So
Marsi Mangan:let's do a PowerPoint slide deck then.
John Farrell:Right. And again, what you want to be able to listen to as we do this is see how your marking is echoing the description that you gave me. Okay. So when did you make your presentation to the board of directors?
Marsi Mangan:Toward the end of the third quarter. So sometime in September of 2021. And
John Farrell:what kind of written materials did you provide to the board members?
Marsi Mangan:We provided the directors with a PowerPoint presentation. And
John Farrell:about how many slides were in that presentation?
Marsi Mangan:I would say... 25 to 30.
John Farrell:And how did the title slide of the presentation read?
Marsi Mangan:Well, it would have had the company logo on it, Dioxinate, and the title would have been something along the lines of presentation to the board of directors on market share, something like that.
John Farrell:Okay. I will now have marked as exhibit six, a PowerPoint slide deck that bears the Dioxinate company logo. The title reads, Presentation to the Board of Directors on Market Share and Key Upcoming Challenges. And it bears the date, September 14th, 2021. There are 27 slides in the deck. And the PowerPoint deck has Bates numbers 45678 to 45706. So
Marsi Mangan:what are the important distinctive features that you want to bring out in deposition as you're marking the exhibit for a PowerPoint presentation?
John Farrell:Yeah, I think for a PowerPoint presentation, what I'd like to have is the title page, which usually has the company logo or design. Almost all PowerPoints do. They'll have some logo and they'll have some title. I don't expect the full title, but a title that's similar to what is actually on the document. I like to get the approximate date. And then I always ask about how many slides. It doesn't have to be the exact number. If they say, I don't know, 25 to 50 and you have 28, you're in the ballpark. So those are the four. I always think four designs is pretty much all you need for any kind of paper.
Marsi Mangan:Great. So again, I'm uncooperative and recalcitrant. So let's demo how you rein me in.
John Farrell:All right. So it's pretty clear that you're not being cooperative. So now I'm going to lead you. You made a presentation about market share to the board of directors, right?
Marsi Mangan:I remember that. Yeah.
John Farrell:And it was toward the end of the third quarter, right?
Marsi Mangan:Yes, I think so.
John Farrell:So that would be sometime in September 2021. That
Marsi Mangan:sounds right.
John Farrell:You provided the directors with a PowerPoint presentation, right?
Marsi Mangan:Yes, that is our common practice.
John Farrell:27 slides in the deck. Does that sound about right?
Marsi Mangan:I don't remember the exact number, but that sounds reasonable. And
John Farrell:there was a title slide, right? Sure. It would have had the company logo on it, Dioxinate, right?
Marsi Mangan:Yeah, yes.
John Farrell:And the title was Presentation to the Board of Directors on Market Share and Key Upcoming Challenges, right?
Marsi Mangan:Something like that, yes.
John Farrell:I will have marked as Exhibit 6 a PowerPoint slide deck that bears the Dioxinate company logo. The title reads Presentation to the Board of Directors on Market Share and and key upcoming challenges, and it bears the date September 14th, 2021. There are 27 slides in the deck, and the PowerPoint deck has Bates numbers 45678 to 45706. I should add, by the way, if you're being uncooperative, I have that PowerPoint deck in my hand. I make it obvious to the witness I'm reading from it, and I literally finger read the title. I will visually flip through and count the number of slides in front of him. The other side doesn't have it yet, but he sees this and that makes him more cooperative.
Marsi Mangan:Yeah, I can see that. Well, I think that you showed how easy it is to mark exhibits. You just kind of follow a format and click right through. So moving on now to step number four, what is step four?
John Farrell:Yeah, I call it show. This is the part where in court you would show the exhibit to the other side. In my practice, that would mean you would announce to the court that the other side has a copy of exhibit four in their witness binder. Because you have to give a copy, you have to, at the demo, give a copy of the exhibit to the witness. Now, the key part about show is this is where you get the court reporter to like you. And you want them to like you because if they like you, they take out all your uhs and uh-uhs. If they don't like you, they'll put them all in. So, um, And if they really like you and you say something funny, they'll put bracket, laughter, close bracket if they really like you. But what that means is, remember, you've said out loud, I will have marked as exhibit. Remember, you do all that. You're saying that out loud. And the court reporter is typing that. And you've handed it to her. Now, what happens is she has to take her hands off the keyboard because she's putting a sticker on it. And what you want to do in the show part is don't say anything. Watch the court reporter. They will notice that you're watching them. And that court reporter put the sticker on it with a number and put it in front of the witness. And then she'll get, but the keys of her hands will be back on the keyboard. Only then do you give copies to opposing counsel saying stuff out loud. The court reporter will notice that you aren't waiting for her to be ready to type again before you move your mouth. So once you see that the court reporter, that they have put their fingers back on the keyboard, you then say out loud what you're doing. I am now giving copies of Exhibit 4 to opposing counsel if there's more than all of them. There's two or three. But you say out loud, I am giving copies of Exhibit 4 to opposing counsel. And you actually give them to them. I'm short, so I have to slide them across the table, but that's what you do. So the show part is really more letting the court reporter get ready. Don't just start saying I'm giving copies when she is still putting a sticker on the exhibit.
Marsi Mangan:And give the court reporter time to do everything they need to do without the added rush of needing to record it because you are not giving them the time and space that they need to do.
John Farrell:Right. And they can do that because they're really good, but they'd rather not. And if they see the first time you mark an exhibit, giving them some respect and paying attention to their job, Because they're the only ones really working. The rest of us are just talking. That'll pay a dividends in the future.
Marsi Mangan:So next is step five. What is it?
John Farrell:Step five is give. And again, this is from the trial practice. The idea in real life is I would give exhibit four to the witness, right? In a deposition, you aren't giving anything to the witness because the court reporter has put the exhibit in front of the witness. So the give part in a deposition is you announce, Mr. Witness, you have exhibit four in front of you, correct? And he says, yes. So the give part is for him to say on the transcript, I do have it in front of me. So you just confirm, you have exhibit four in front of you, right? Yes, I do. That's all it takes for the give step in a deposition.
Marsi Mangan:And sometimes people forget to ask that question and you've got to get it on the record. They do.
John Farrell:They do, because what happens is, what is exhibit four? And I know there's a video, but I always think when you're taking a demo, you should close your eyes and see what the transcript looks like. And if the transcript doesn't show that he's got it in front of him, I'm not sure what he's testifying about. So always make sure you confirm you have exhibit four in front of you.
Marsi Mangan:Okay.
John Farrell:Because no one's looking at it except the transcript.
Marsi Mangan:So we are now on step six out of eight. We are winding this down. What's step
John Farrell:six? We are.
Marsi Mangan:Okay.
John Farrell:It's identify. And this is where I think lawyers try to justify their education by making it complicated. I want to stress to everyone who's listening that simple is not dumb. Simple is brilliant. And so the step to identify is I now have to have this witness say what this is and how they know that. So I'm a professional. Don't try this at home. But there are two questions. What is Exhibit 4? how do you know that? So the first question is not, what is that? There are no naked pronouns. That exhibit has a name now and it's exhibit four. It's like you adopted the puppy and brought it home and that's its new name. So now it's, what is exhibit four? And they always say, oh, it's the letter I wrote. And I know this sounds dumb, but you need to say after that, how do you know that? Because what if he said, Oh, I'm just guessing, or I'm just reading what's on here. Then you don't have foundation. And you also want to get this habit because at trial, on a regular basis, one of the first other flaw that the judge has, if we're yelling to you about marking, they will now yell at you when you say, what is exhibit four to your witness? That's the letter I wrote. And you put it up on the screen and the judge says, there's no foundation. And you're going, what do you mean? He said what it was. You just have to ask, how do you know that? There are some rare exceptions. For example, if you are showing it's a wrongful death and you're deposing the mom of the child that was hurt, and they put a photograph of that hurt child of hers, who is that a photograph of? That's my daughter. You do not need to say, how do you know that? But that's the extreme. But I think in general, for our paper kind of cases, is what is the exhibit for? And how do you know that?
Marsi Mangan:And how do you know that is a critical question because it lays the foundation.
John Farrell:Now, I will say, for those who have taken a lot of depots, if you're being uncooperative like Marcy would never be, you suddenly hear this. Well, it appears to be a letter I wrote. It appears to be. Now, if you want to stop that, there's two ways to do it.
Marsi Mangan:Okay.
John Farrell:There's the open-ended, somewhat snarky way, which I don't recommend, but you can do that. What about its appearance makes you say that? Or you could do it this way. And it appears to be a letter you wrote because it's on your letterhead, right? That's your signature at the bottom, and it's the address of the right guy written on the right date. So you can knock that down pretty quickly, but just don't get lost. Well, it appears to be What I don't want to hear is this. Do you have any reason to doubt it's not what it is? I don't know what that even means. Just sort of say, well, tell me why its appearance makes you think that. That's my signature. But that's the only thing. But yes, how do you know that? Because I wrote it.
Marsi Mangan:Okay. Let's move on to step number seven.
John Farrell:Yeah. Step number seven is a silent one of deposition. Don't do this at the depo because it's weird. Step seven is called move. In court, You move Exhibit 7 into evidence before you use it or play with it or show it, right? The problem at Depo is that we never do that at Depo. So we get used to not doing that. And this, by the way, judges say marking's bad. They say, how do you know that it's bad? But they say this happens all the time. They can tell when a lawyer has been in Depo because they say, what is it? Oh, it's a letter I wrote. How do you know that? Because that's my signature. And we put it up on the screen. The judge goes, take that down. Because why? Because you didn't move it into evidence first. So the idea is silently to yourself, say, move exhibit four into evidence. And do you feel good about that? First of all, you're reminding yourself that you have to do that in real life at a trial. But also, if you've been charged with making this admissible, say that silently to yourself and you go, yeah, I'd move it in. I mean, it would get in. So it's silent to yourself, but get in the habit of whispering it to yourself because you will forget at a trial. And it's a good way to test whether you've made it admissible.
Marsi Mangan:Okay, that is a really good tip. And we have finally reached the end. Step number eight. What is step eight?
John Farrell:Yeah. Step number eight is called use, which is you got to do something with it. And again, this is both to get a good habit for trial and to find out information at deposition. Both purposes are served. At trial, for example, I constantly see lawyers put up a document on a big screen. because there's some really neat language they like. And they put it up on the screen and they read the language and then they take it down. And the judge goes nuts on you because they say the document's already in evidence. They can read it themselves. So at trial, you have to come up with an excuse to put it up there. You read that language you like and then say something like, why did you say that? What were you trying to get at with that? What was the point of that? Now there's a reason because you're using it. But at depositions, the same thing. You came into the depot with this document. You already had it. What you get at the depot, which are expensive for your client, is what were the mental processes? What were they thinking and doing when they did it? So you want to have a lot of why questions and reasoning questions. Why did you say that? What was the point of doing that? What were you thinking when you wrote that? Was this the same as your first reaction? Because people write and say things differently than what they're thinking. And the only example I always have is if you're a young associate and it's Friday at seven o'clock and you're about to leave for the day and a partner says, hey, you have to stay all night to write a brief. Will you do that? And you say, absolutely. You're thinking something very different than that. So you want to get behind the words. Why did you write that? What's the point of this? How come you said that? What did you expect was going to happen? That kind of thing. So that's what use is all about. Get behind the words and see what they were thinking, feeling, writing at the time.
Marsi Mangan:This has been fantastic. One of the great things about this recording, actually, I would say there are two things. The first one is that it is solid, actionable, practical advice, and that is what we're always aiming to provide to listeners on the podcast. And I would say the second great thing is that everything we just talked about is available in your latest article on depositions, and that is... available for download for free in the show notes. So if you're interested in this article, instead of taking notes, you can just download the article and I'll include the links for your other two articles on depositions as well. Great. So that begs the question, what is it that compelled you to write this series on depositions for Nita, John?
John Farrell:Well, there are a couple of reasons. One is, uh, I teach depositions courses for NITA all the time. And I realized this is what most of us do now in civil practice. We don't get to go to trial that often, but we constantly are taking depositions. And there are ways and unique style approaches. Everyone's going to be different. But there are basic, concrete skill sets on which you base your deposition taking. And these three articles, I think, cover everything. both how to take charge of a room and dealing with obnoxious counsel, how to ask the right kind of questions, how to get information, because that's the point of Adepo, is to get information and then to get confirmation. So the reason I wrote these was because on a regular basis, people would come to me and say, well, how do I do this specific task? And I realized there's some tasks you can just write down and people can have them. It's not a style issue. I liken it to every artist is different, but they all went to art school. Then they take the skills that they learned in art school and have their own style. But there are certain building blocks you need to know. And I think these three articles, I hope, provide a lot of those building blocks
Marsi Mangan:for people. Yeah, well, you made it look really easy. Have you got time for a couple of sign-off questions before you go?
John Farrell:Sure.
Marsi Mangan:Okay. So one of my favorites to ask is what TV show or movie you have been into lately?
John Farrell:Well, you know, I want you to know that it's clear to me I don't know computers or stuff because... A couple of years ago, my son had to do like a biography of their parent when they were a senior in high school. And one of the questions was, what do you stream? And I said, I don't stream. I just do Apple TV and Netflix. And he looked at me like, how do you feed yourself? But so I haven't gone to movies for a while because I always am now streaming. But what I've been watching lately has been adolescence. I'm also watching The Resident. the residents. And one of my favorites is back for season three, The Righteous Gemstones. Those are three I like.
Marsi Mangan:Well, it sounds like you're streaming a lot, actually.
John Farrell:I do stream. I'm very current now. I feel that.
Marsi Mangan:Good. And where would you like to go on vacation right now?
John Farrell:Well, the sad part to most people is that I really like New York City and actually I'm planning on going there end of the month. I consider that a great place to visit. I don't know if I could live there, but I like spending a week or so there. And the other place I really want to go, my younger son went to Dublin for his spring break. I have yet to be to Dublin, so I don't know why he gets to go before I do, but I'd like to go to Dublin, Ireland too.
Marsi Mangan:Well, and if I'm not mistaken, Farrell is an Irish name.
John Farrell:Yes, he apparently discovered that for the first time when he was in Dublin, because he ran into a bunch of Farrells, and he said, why is that? And I go, oh, for gosh sakes, you're Irish. How do you feed yourself? I got back at him, so it was even.
Marsi Mangan:Perfect. Well, John, it was great to have you on the podcast. We've worked together for a couple of years now on this series of articles, and I'm really pleased that you made more time for NITA to come and talk about this latest and greatest.
John Farrell:Well, anytime. And like I said, soon I have a book on trial advocacy, and then we're writing another thing on how to prepare witnesses. So we'll have more information for everybody.
Marsi Mangan:Fantastic. Thank you.
John Farrell:Thank you, Marcy.
Marsi Mangan:As always, thank you so much for tuning in and subscribing. Remember to check the show notes for links to the three free articles about depositions that John has published with NITA. The information in today's episode is in article number three. All three articles are yours for the taking, so take them, please. I hope you enjoyed listening to today's episode on marking exhibits and got something out of it that you can use in your next deposition. And I hope you'll share it with a friend or colleague. I love it when someone shares a great listen with me, and so I hope that you'll be that friend for someone. Be sure to tune in next month when Professor Angela Downs of UNT Dallas College of Law will join me to talk about the vicarious trauma that trial lawyers sometimes face in certain types of representation. Until then, we at NITA wish you the very best of luck in your depositions, motions, and trials. Happy lawyering! May the Record Reflect is a NITA Studio 71 production. NITA. We are advocacy-enhanced, mentorship reimagined. Welcome to the community.