Episode 4 – Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – Can the Disinherited Object?

[Music] Hello good afternoon it's Wednesday and we are here again for another session of Aldith live I'm Keith Davidson I'm Stewart Albertson and we are coming to you from a very rainy San Diego today and hopefully bringing some issues to your attention that maybe you didn't know before if you'd like you can always drop us a question on Facebook or YouTube we are simulcasting on both of those platforms so if you have any questions feel free to drop us a line there and of course you can always send us an email if you want to ask us questions in advance to answer we have had a lot of information and questions coming in and we're gonna hopefully answer some of those questions today so why don't we start off by looking at the beneficiary's corner and we have an interesting issue today and may be interesting is the wrong term maybe it's terrifying and we have a terrifying issue to look at today and that's the case of barefoot versus Jennings so do you want me to go over this one the fact part of this or do you wanna know go ahead that's fine all right so barefoot versus Jennings is a case that comes out of the fifth Appellate District and I think it was decided in September or August of this year so it's a very new case and it's one that has a lot of us trust and we litigators kind of up in arms a little bit because traditionally what would happen is if you're gonna file a trust contest there's a provision of the Probie Code section 17200 that we all use and we all refer to when we file a trust contest and we say that's the procedure that's the statutory authority for us filing a trust contest well barefoot said you cannot file under 17200 or use that code section unless you are an actual present beneficiary of the trust under the current iteration of the trust amendments and so that's a case where there was many amendments to the trust and the people who sued to contest the trust have been disinherited several amendments ago so they were beneficiaries under a prior amendment not a beneficiary under the last amendment prior to death and then they come in and they want to roll back the amendments that's a typical trust contest cases you have some amendments you want to roll them back so you can test the last amendment and the other side objected and said well you're not a current beneficiary of the trust and therefore you cannot bring a trust contest in probate court using probably code section 17 200 and I think to my way of thinking every trust litigation attorney who heard that argument would say that's ridiculous correct I agree a hundred percent when I was first starting to practice years ago I remember reading seventeen thousand at SAC that's just a fancy way we lawyers say the whole code provision pertaining to 1700 which encompasses seventeen 200 and I always saw probate code 17200 as the gateway or the pathway into the probate court it allowed you to say to the probate court I'm here under seventeen two hundred I represent this disinherited heir who used to be a beneficiary of the trust they're no longer under the current iteration of the trust but we're asking this court since it has the authority to look at the the way trusts are created or not created and I want to ask you court to invalidate this trust and I think people would say that they are a beneficiary under the current iteration of the trust in the sense that we don't think that last-minute amendment is valid so we think we aren't rightful beneficiaries right yes but that's not that's not how this case is gonna look at it this case is gonna say if you're not listed in that current iteration of the trust then you're not a beneficiary you could be an heir that may be your mom or your dad that created the trust but if your mom or dad signed the twenty-fourth amendment or the 17th amendment or whatever it was in this barefoot case and you're no longer listed as a beneficiary you can no longer file a trust contest under probate code 17200 which leads to quit which begs the question well what do you file under right where do you file where do you file and the problem too is in this case they quote Lynch V Linz that's a case that we're very familiar with but they say look in this other case lens the parties filed a complaint to contest the trust not a petition under seventeen two hundred and they filed it in probate court so to my way of thinking why couldn't that be a way into the probate court but I think you disagree with that because you think go ahead well you you say why you just well I think it's just a semantics problem because I don't know if this particular appellate court is looking at 17200 as at an administrative type statute or maybe they're just reading it very narrow at the beginning when it says that if you're a beneficiary a trustee you can bring a claim under seventy two hundred the problem is we've always been able to bring trust contests that we called petitions under seventeen two hundred so if it's as simple as simply not citing 217 217 a quote-unquote complaint it seems to me a little ridiculous because that's a distinction without a difference all we're doing is changing the name of something and yet we're still moving forward in the probate court but the concern I have Keith is that if 17200 is no longer available to us the Gateway to the probate court what do we point to to the probate court to say we have the authority to be here in front of you probate court to ask you to invalidate this trust which leads me to believe that more than likely we're filing trust contests in the civil court now so then the civil court becomes your jurisdiction that's where you're gonna go to file a trust contest claim which is ironic because the only people who are gonna have to go to civil court to file a trust contest claim in that scenario is people who are not named in the last amendment or the last version of the trust but if you're named in the last version of the trust in some way somehow as a beneficiary even if you're your share is greatly reduced you still have the power to go under seventeen 200 and file your case in probate court yeah let me give you an example let's say you and I are brothers and we're in the there's a trust and it'll say there's 20 amendments to it and the 20th amendment your shares cut down by 95% you go from 1 million to like $5 but you're still a beneficiary of the trust I'm your brother I'm actually disinherited totally so no longer could we join forces to file a petition or a complaint I'd be filing a complaint in the civil court with potentially a right to a jury trial which I want you to talk about where you found in the statute there you think we have a right to a jury trial now if this is the way we do this and then you would be relegated to filing under 17200 because you are technically a beneficiary of the trust under the last iteration of the trust which is funny because if you succeed in overthrowing the amendment and you're named in a prior amendment then you too are a beneficiary of the trust but not yet and because you haven't proven that yet you can't take advantage of 17200 and that's interesting so do when we win in the civil court and we become that beneficiary again do we now file anything we want pertaining to the internal affairs of the trust in the probate court or 17200 think you do I mean I think at that point you have the legal justification that yes it's been adjudicated that I'm a beneficiary now I can go into probate court and sue the trustee or whatever it is I mean this is the problem with this case is that it raises so many thorny questions that just don't really make a whole lot of sense to practice Tichenor z-- in the field well and let me ask you ki the personal question I know when we first were wrestling and we wrestled hard with this case well I saw your gut reaction but what was your gut reaction to this case I mean yet first you were you were a little bit upset at this case yeah it just doesn't make any sense I mean it does not compute I think is the gut reaction it's like what are they thinking and if you were to say that 17200 doesn't allow somebody who's not named in the trust to come in and contest a trust in probate court then why don't we have some other provision of the probate code that allows that I mean that would be the easy fix to is if the courts don't want to recognize that you can do this then why not just have a simple amendment to the probate code saying hey if you want to contest a trust this is the form to do it because you know as well as I do that civil courts don't want to hear these cases right right and and to make this matter even more confusing and ridiculous in my opinion if let's say we had an 850 petition for a quiet title action and that's something we could file in the probate court but we're not a beneficiary of the current amendment we theoretically still can be in the probate court for that matter right but it's still not going to be for a petition under 17200 it's going to be a civil complaint for I'm guessing breach of contract know how we're gonna style these but right now we're in a little bit of limbo that you had heard something about did the Supreme Court say that they were gonna take this up I read an article earlier today where they indicated that somebody had indicated that the Supreme Court was going to take this up or maybe they applied to the Supreme Court and haven't been denied yet I hope the Supreme Court takes it up if they don't or if the Supreme Court agrees with this decision and we certainly I think are gonna need some legislation but you know Probie Code section 850 is a good example of the only thing that section does 850 is it allows you to bring a civil lawsuit essentially a quiet title action to property in the probate court that's all it does it doesn't give you a separate legal right to of anything you have to look at the underlying lawsuit so if you can bring that type of claim in probate court and the justification for bringing it in probate court is because you have a claim against the trust or a will so the trust or the estate has assets that belong to you or the trust or will thinks that you have assets that belong to them that's what the code says if you have one of those situations you can file an in probate court so if you could do that in probate court why the heck can't you do a trust contest in probate court regardless of whether you're named in the document or not well and not the civil court judges aren't smart and can't understand this stuff but what are they going to say when all of a sudden they get hit up with all these trust contests they're gonna say well the best court for this will be the best judge to hear this is going to be the probate judge because they've dealt with so many trust contests and what about how many trust contests right now are filed in courts throughout the state of California probably oh yeah many so now because of this case each one of those cases have to be dismissed from probate court and a lot of them probably are already beyond the statute of limitations they filed they were safe because they filed but now they're going to get dismissed because they filed in the wrong court I mean this has tremendous reprecussions or maybe not dismissed but what's gonna happen if the probate court cases that you're talking about all these trust matters what happens when they get inundated into the civil system all at one time I mean how is the civil court says I'm gonna handle that some real unhappy judges on the civil side I think that didn't intend to be doing trust work and it's almost like family law which we don't practice but you've got all these family law cases where people are divorcing one another it's almost like saying there's a certain subgroup of those people getting a divorce under a certain set of facts that are gonna be all the sudden transferred over to the civil court to handle I have a feeling in California's gonna get this right either the Supreme Court's gonna get this right the Judicial Council is gonna get it right ultimately the legislature may have to step in to get it right you know our partner jion a couple years back was working with a group of attorneys where they were suggesting changes to the law to the Judicial Council and one of the changes that jion suggested was changing 17200 to allow these type of lawsuits and while some of the attorneys supported that but a lot of them didn't and the reason they didn't is they said well everybody knows you can file a truss contest under 17200 it's been happening for decades why do we need to change the law now well because of this case now barefoot vs. Johnson has just proven her very much right and then very much wrong let's do this I mean we're I think we're done talking about barefoot today but let's follow up on barefoot and then subsequent episodes here and we'll find out hopefully somebody will get this fixed if not if not it just I mean it's a good thing right when has confusion in the law been bad for lawyers it's been a good day full employment for lawyers yeah thank you a pillow Corey yes we should we should thank them alright let's go on to our next segment of asked and answered and so this is the area where we get into questions and and answers that we give out a lot I think there's a lot of confusion and what we do and a lot of confusion and where the process works and the way you should work with your lawyer and I think the subject we want to talk to you today is trusting your lawyer and I know that's I don't know I mean I think a lot of people have negative connotations about can they trust their lawyer right lawyers are not to be trusted are they well and and we do see this from time to time and it's in a minority of our cases for with our clients and that is there are times when the client just doesn't feel they can trust anyone and including the lawyer and it makes it difficult in our representation of these folks because they need to trust us and so if I was a consumer and I was hiring a lawyer the first thing I'd want to do is I either want to talk to them on the phone and get some get a feeling on the chemistry that I have with them I got reaction to their advice I'm not an idiot I may not know exactly why I'm calling them or what the law is but I can tell when somebody knows what they're talking about and and get to the point where I can grow in a relationship with them so that when I get to mediation when I get to arbitration when I get to trial whatever that is and they're things are moving quickly and my lawyer advises something I can trust what my lawyers advising if I can't get to that type of a relationship boy that's that's a problem I think either the lawyer the client or both need to take a timeout go have lunch together or something so that they can establish a relationship where there's some trust and I'm not suggesting all this to say that the lawyer is always right or the client has to follow everything that the lawyer suggests but you can tell I mean I'm sure you've been in these cases where this client you're trying to help them and they won't accept your help because they just don't know how to even begin to trust what you're telling them yeah makes it difficult i man think a majority of our clients do trust us but we also kind of develop that trust over time and hopefully earn that trust and I think we try to work with our clients as a team so we want the clients input and then we give out the advice but the truth is is that there's a lot of tough of advice the idea of clients throughout a case right I mean there's a lot of things that people don't want to hear there's a lot of black gray area so you can't always say that something is this way or that way you're not quite sure and I could see where if somebody let's say just as friends and say you're every time you I tell you a problem you tell me why I'm wrong and how I need to do the opposite of what I what my gut tells me to do at some point there's gonna be a breakdown in that relationship right and so maybe that's not a good fit and so I think at some point you have to think about what's a good fit client lawyer together not every lawyer is right for every client and vice versa so I think you do have to find somebody who's going to be a good fit for you right right well I think it's important that the communication lines stay open initially in the case we tend to try to do that the best we can of course as lawyers we can't spend all day on the phone on the other hand you have to communicate with your clients required that you communicate with your client under under the rules professional conduct so communications sometimes can help those things I think there's just some people though that aren't gonna trust anybody and so you do the best you can I would suggest sitting down and chatting with your lawyer whether it's by phone Skype FaceTime in-person whatever spend some time with them to get to know who they are as a person and then hopefully when they're giving you advice on transactions that impact you greatly from a monetary standpoint moving forward that you can at least rely on that to make an informed decision about which way to move forward in the in your case so what do you think are some questions good questions that people can ask a lawyer to see if it's gonna be a good fit because for example every now and again you'll get somebody who asked well how many cases have you won is that you think that's a good question ask a lawyer it's not because that penalizes lawyers such as US and I when we first started practicing we took every case that we could that doesn't mean we didn't work hard on it and that we weren't good lawyers but we took cases that probably didn't have the best back patterns to them even today in our portfolio I hope none of our opposing counsel are watching there's probably ten percent of our cases that maybe the facts aren't as strong as we would like them to be and we're seeing if those facts will develop and discovery but we may lose those cases and if we lose them I don't think that should reflect poorly on us as lawyers now if we were lazy and didn't show up to work and didn't care about our work product care about our clients care about being great lawyers and doing good work well that's a different story maybe that's really what is at the heart of it isn't as caring empathy having some connection to the client I mean when you go in and you see a doctor and they're rushing through the appointment they don't really connect with you and they're not even listening to what you're saying as to what your symptoms are I mean that that's got to turn you off I mean turns me off it's I don't feel as though that's somebody who really cares or is listening to my problems and giving me good advice are there doctors that don't do that no I wasn't sure because that's been my experience with my doctors especially especially my urologist he's very very quick in and out but yeah I mean I think it I think empathy connection and maybe that's really what it comes down to I don't know but how do you find the right connection how do you know that you're sitting in front of a lawyer who is the right choice for you and I think the only way to truly answer that question is to spend some time and go over you know have a conversation well I'd like to suggest that we both used a car salesman a few years ago to purchase cars and his name's Larry I don't remember his last name but Larry we think highly of you it was the one time that we that I used a car salesman you told me the same thing where I felt he gave me a fair deal I don't know that he did but I felt that way and I really felt that he was asking me what my goals were on the car what did I want when we when he went out and looking for the car he said he searched diligently for it you brought it up you know he went through every after I purchased the car he spent an hour and a half two hours going over the car with me I mean who does that so it was for me I felt very good about that transaction it cost me money I'm sure I paid for for his monthly salary to some degree right that's fine he's that's what he's there for but I didn't have that feeling I normally get when I saw a going by a car and it could be that that was just us taking the time to sit down and get to know him as an individual realizing that he actually liked cars he'd like to talk cars he enjoyed selling cars and it worked for me and even though I knew that I was paying him for that service right yeah I remember reading a business book once it said that you should never hire anybody you don't trust but once you hire somebody you should trust them and that might be true of lawyers too I mean if you don't trust somebody if you get a bad gut reaction just don't hire them but once you do hire them you're gonna have to put some trust into your lawyer because otherwise the relationship doesn't work very well because there's gonna be a lot of tough discussions in every case I mean I can't think of any case that doesn't have its moments when you have to give some tough advice out to the client that's right all right let's go on to our next segment the practice pointers so there's a section where we like to give out our view on practicing practicing laws never a easy thing and it's always we're always learning new things I think and what what new thing can you bring to us today Stuart well when you run a practice like ours it starts to get a little overwhelming at times there's multiple hearing dates multiple motion dates there's discovery that we send out discovery that's supposed to be do us discovery that we're supposed to respond to there's phone calls that we have to make there's emails we have to do there's pleadings we have to draft and this is on multiple cases that all have different strategies and each one of these strategies it's not cookie cutter each case takes its own set of inputs so I've come across an app and I normally wouldn't publicize an app but it's called OmniFocus 3om in i FOC us 3 the number and it's a get things done at the GTD app and it has transformed my ability to see my cases at that 30,000 foot level and so when I'm meeting with the lawyers and the firm on art on the the cases we're working on it's so easy to manipulate the data that's in front of me from hearing dates to discovery due dates to action items to things I'm waiting for and it's all in one app it's been fantastic I think that I could probably increase my capacity by 75% with this particular app and so you know yeah it's helped me tremendously and I would highly recommend I think they give a 15 day free offer to do this by the way I've incorporated it into my personal life as well so that if I'm gotta go to the grocery store and there's certain because I you know once I go to the grocery store I just start going up and down the aisles to start buying everything and then I get home and I find out I've got you know I've already got that stuff but here if I need something specifically if I need to run by the dry cleaners if somebody runs by your office real quickly and says hey we need to do this you can just jump off what you're working on briefly to put it in the inbox and know that you got to come back and address it later so I don't know I I don't think it's for everybody but if you have a complex set of scheduling and issues to keep track of and you know you have things that you have to get done Omni focus 3 is a great way to get started great thing about these apps nowadays is that doesn't that app go on all your different devices you can have on your laptop your desktop your phone that's right so your database is stored in the cloud and it's across every single device you have so if you make a change on your iPhone it changes on your on your desktop and it's great it that way there's nothing ever missed and if you change some dates at home at night on your laptop while you're watching TV or watching a game or something you know tomorrow morning when you get in everything else is gonna be up to date yeah and this isn't a paid endorsement for OmniFocus although we're certainly open to that if they'd like to contact us but what is the problem I mean when you're running a law practice what do you think is the biggest problem to try and stay organized with what's the thing though that you're that scares you the most well running a statute of limitations to me I sleep over that you know that's that's my reoccurring dream that I'm a day late on filing something so statute of limitations you keep track of those in OmniFocus and they yet even have reminders to remind you of them I don't know that traumatizes me more because now I see them as their as the time is going down on the other hand I'm seeing them and I'm aware of them rather than there's many times lawyers will be happy sitting in their chair and there goes the statute right right and so statute of limitations hearing dates are important judges like you to make it to the hearing dates when they have them set yeah I get a little upset when you're not there I've missed three hearings in my career I'm hoping that that number stays at three but it's always embarrassing when you miss a hearing yeah and I'd beat myself up so badly yeah but I don't know what that same question to you what do you think what scares you most about running the practice you're the managing partner of Albertan and david's what are the things that keep you up at night well certainly the statute of limitations I mean that's you know we've never missed a statue and you that's something you just do not want to do you cannot miss the statute of limitations that's the biggie I think til 2 I think hearings yes although you know I think those we have cross calendaring for that so that doesn't worry me as much but mainly it's all just there's so many deadlines in litigation all the discovery deadlines and so you know you have to respond by this state and the other side has to respond by that date and then after the other side responds they have you have so many days to file a motion to compel if you need more and if you don't file it then you can never file it and so I think what what concerns me the most is just the volume of dates that we have to keep track of there's just so many of them and so I think having some organized system is huge and I mean I think that's why you've been so effective with OmniFocus and I haven't I've started to use it I haven't used as much as you have but I think at least gives you a starting point to be able to double-check all that stuff I do think it's important though for any attorneys out there if you're getting your own practice started or you're you're having a you know issues with your practice you have some sort of a double-check system so it's great that you have OmniFocus and you should be looking at it and then your assistants or paralegal should have some system that they're looking at and if they use OmniFocus - hey great you know whatever works the OmniFocus 3.0 they use it all so there you go ease it also all right words matter they do so I mean I think it's just keeping track of all the various pieces it can be a lot and it can be overwhelming but I think nowadays with the technology we have it can be hugely simplified if you just stay on top of it of course the downside with or with any system it doesn't matter if it's OmniFocus or whatever it is is you have to do the inputs have to take time to put in the information and then you have to double check it that's right but there's no other way I mean you cannot survive with all of those baits floating out there doesn't matter how bright you are you cannot survive that's why not to change subjects but that's why when we're taking a trustees deposition who has not made good investments with a multi-million dollar trust portfolio we can ask them what process did you have in place for doing this and if they didn't have a process in place we asked them did you write it down and you know 99 times out of a hundred no we just did it out on top of our head well I'm not sure how you do that with such a complex set of inputs to make sure that you're doing your job as a trustee and managing a portfolio of multi millions of dollars same thing with with managing cases you have to have some some way of keeping track of everything that is easy to manipulate and see so that you can work at 30,000 feet but if you need to you can drop down to 1,000 feet and do something specifically on the case as well yeah organization who knew all right let's go on to our last segment this is our closing argument so we've been taking a lot of depositions lately I mean we've always take we always seem to take a lot of depositions but recently we've had a lot of really interesting depositions per se and one of them was a deposition that you took and why don't you tell us a little bit about accessorizing well you know they tell you in law school that the Perry Mason moments are over right you don't yeah I mean very rare everybody knows everything and with discovery you get all the documents you see all the emails and texts between people yeah so there's usually not much of a and and plus depositions you're really as young lawyers out there if I had one piece of advice you're not in a deposition to prove your case you're in a deposition to get information now that information may prove your case but you're not there to argue with the witness you're not there to slam-dunk the witness you're not there to you know wax eloquent about you know whatever it is you plan on doing your closing statement and so generally we go into depositions just making sure that we've dotted our eyes crossed our T's we've seen the universe of documents and texts and emails and but every once in while you get a fun experience where we we get to use our skills as lawyers and in this case there was a a woman that was from South America and she spoke Spanish she also spoke English but she spoke Spanish that was her native language and her first language and the case involved family we're Italian was primarily spoke by the younger generation of that of that family but the older generation of that family spoke a it's not really a dialect it's a subset of its own language called calibrate it's it's Italian with a heavy Greek influence and it's very difficult for Italians that would speak standard Italian or Italian you'd hear in Rome you they have a hard time talking to people that that that speak caliber a see and and vice versa I've never even heard of that before that's really interesting so the witness in this case lady from South America first language Spanish and she her English was quite good she had an accent but her English was quite good but the whole case came down to what she had heard a very elderly member of the Italian family say about where she wanted her assets to go when she died and when the opposing counsel was taking this person's deposition this this lady from South America he spent a lot of time talking to her about the things that this elderly Italian lady had said to her and she this this Spanish League a very detailed explanations of their conversations and I'm sitting there and it just kind of hits me as this is going on I've got my outline in front of me that doesn't have any of this in there but it just kind of hits me that I don't think they could have talked that well III remember when I was at the memory actually had jog in my mind was when I was at Georgetown University getting my master's in tax law I hung out with a group that was from South America Mexico Spain Portugal and I remember when we would go out to you know got to drinks or whatever and have a have a good time they would all laugh at each other constantly because they just they couldn't connect on the language especially the European Spanish speakers and the South American Spanish speakers it just didn't connect it was just different it was different yeah well so far you said that the witness spoke Spanish in English so where does the Italian come in for well and that's where I finally sat down and said hey where did you learn to speak Italian well first Astor what's your first language was Spanish okay and what's your second language English okay and where did you learn to speak Italian if she said she learned from a next-door neighbor in the South American country where she had grown up and so I asked her I said how did you learn from that neighbor well I used to go to their house okay well did you take formal lessons from them oh no no just just conversational okay how long did you go to their house five years okay how often did you go their house every day and I said okay let me get this straight you went to a neighbor's house every single day for five years and learn to speak Italian well she backed off and so then she said she came to the States later on as she got older and she took a semester Italian in college because she was taking a trip to Italy or to Rome with her her family members and so I asked her you know if she had taken formal training for that she said oh yeah I was it was a semester and so I'd asked her if she had learned any of the other forms of Italian or dialects of Italian and she said no she hadn't and so then I asked her I said now you had testified that the the lady who spoke this caliber AC and of course I haven't identified caliber AC yet but the old lady that passed away you said that she told you all of these specific details about what she wanted done with her assets just go ahead and tell me exactly how she told that to you and you saw her freeze I mean you saw this look come over her face and so then she says in the best Spanish I've ever heard exactly what the lady is supposed to say the only thing that was funny about that well there was many things funny about this but the thing that was funny was there was about 20 people in the room for the deposition and all of them were Italian speakers and they all started laughing well you know how that is so they knew that she was speaking Spanish not Italian yes and so then I asked her did she speak caliber AC so that I asked her if she was anywhere of any different types of speaking Italian in Italy she wasn't I asked her if the decedent in this case what type of Italian did she speak she wasn't sure she said it was normally tally and he was perfectly clear to her and then I asked her about Calabresi she didn't know what that was and I asked her if she'd be surprised to learn that that's the language this lady spoke which as I read it and understand it it's a diet it's not a dialect but it's got a heavy Greek influence and so it's a language that stands on its own and so the the decedent didn't speak regular Italian at all she only spoke calibration right not standard Italian not the Italian you would hear in Rome and in fact her family heard her children had told me that they sometimes had a hard time understanding her so that lets you know that this caliber AC is a it's a unique and there's not a whole lot of people that speak it and so you don't get those moments often in deposition and I want to ask you if you have any of those moments yourself but you don't get those moments often and so when they come along it's very satisfying and got a call from the lawyer the next day and of course they want to go to mediation so well I guess my question to you though was did you know this heading into the deposition a little bit I mean like I knew this was an issue and I think I may have had it in my notes but to me it really didn't crystallize until I sat there and listened to the opposing counsel ask question after question about what the decedent in this case told in detail to this lady and I'm sitting here thinking this lady is being asked in English these questions which is her second language although she speaks fine English but she Spanish she's saying Italian she said to me in Italian over and over again and I'm thinking but this lady didn't speak Italian and she spoke caliber AC and did going into the deposition did you know that the witness did or did not spoke caliber a see spoke speak speak I knew I I was I was 99.9% certain when I started my questions that she did not know calibration so it was more of a gut reaction you're hearing all these detailed facts coming out that she supposedly heard this decedent say and it just didn't add up in your mind correct I mean that's really the key isn't it to taking depositions is like paying attention it is it's funny it and that sounds so simple to say and I'm not making fun of her light of your experience but that shows your experience I think right is that like how many young attorneys or any attorneys for that matter night they only have to be young have a hard time just paying attention a deposition well and I would say this to not only young attorneys but any attorneys that are going into litigation and learning about deposition or or trial for that matter judges will tell you this and other lawyers opposing lawyers to tell you this after the case is over when you walk in with your outline and and it's written out word-for-word and you're just sitting there making sure you get all your questions asked that is a terrible way to take a deposition the best way to take a deposition is to put ten bullet points and those are the ten categories of questions you're gonna ask and then act like you're on a first date have you ever been on a first date I mean when you went on a first date with your wife I know that you're a little socially backwards and so forth but you asked her questions right I don't remember yes you did stare at her you may have no you asked your questions and we do that think about the uncomfortable silence that happens on a first date yeah and so to break that uncomfortableness what do you do you get somebody talking about themselves you ask them questions that's what a deposition is and you're doing it based upon the ten categories of questions you need to ask and you may ask those ten categories you may be on one category for 20 minutes asking questions in different ways but then listening to what the deponent is saying so that you can follow up on some of those things the other issue that this deposition brings to my mind so one is okay you got to pay attention in depositions otherwise you're never gonna be able to hit paydirt like you did there secondly what's up with the deposition prep of this witness I mean how do you prepare a witness for a deposition like this obviously maybe she had no preparation for this particular deposition but how do you prepare a witness well you tell us how do 99% of attorneys that prepare their client for their deposition well five minutes before they walk into the room they say okay don't say too much answer the question let me object okay let's go right it's very very minimal I would say most the time and it's unfortunate because there's a lot to know heading into a deposition and I think in a case like this there'd be a lot for the person not that you're going to tell the witness to lie but I think that there at least would have been some value and telling the witness now wait I didn't mean just probing the witness yourself before they walk in and are slaughtered at a deposition saying are you sure she told you all of that in that level of detail how did you speak with her finding these things out because if it's a witness you can ask all those questions before you actually arrive a deposition well that's the other thing that the opposing lawyer could have done during the deposition right is when you hear that and it sounds too good to be true it generally is so it's better coming from you than for me hello yourself yeah tell on yourself you know say you know you gave me some great detail there does she tell that to you specifically in that detail because my understanding ma'am that she spoke Calabresi did you speak calibration and there you're asking questions and educating the client at the center or the witness at the same time not that we won't witness witnesses to lie but there is an art to asking questions so that you're getting the answers that are beneficial to your side although this might have been a case where they prepared the witness she actually you know she could have been taught don't embellish whatever it is that happened it sounded like this witness was trying to kind of embellish like maybe she was going beyond the truth a little bit not not intentionally trying to lie or mislead but probably just trying to really drive the point home and it didn't do her any favors and actually worked against her right I just shift gears here just briefly cuz we have a few minutes left I remember one time you were taking an attorney's deposition and again if you had been listening closely you wouldn't have had the ability to do what you did and it had to do with the way this attorney did things her process her procedure and it mattered to the case and she answered two or three times in a row to your question that her preference was to do it this way tell us about that yeah and that's exactly like you know why did you prepare the deed in a certain way and she's like well my preference is to do this or to do that and after her answering that a couple times you know Adana me that well that's fine that that's your preference but I'm not asking about preferences I'm asking why you did it this way in this particular case and so my preference is to always do everything properly to but every now and again we make mistakes so that's what I'm asking about the mistakes not your preference and it was kind of a sneaky way to try and avoid the question I think well and I was at that deposition and I was watching you and I want to say again that sounds like once you hear that somebody's gonna go well of course you would follow with that but there's a lot of lawyers that they're so busy with their face and their outline right that they're not listening to that response and so you stopped lady and you clarified and you can see how uncomfortable she was once you made her actually testify about what she did not what she preferred to do and I think it takes a certain amount of curiosity right so I mean I've had depositions before where I just ask a question just because I'm kind of curious like something like in your example it's like something doesn't add up like why did you do that I just I don't know I'm just kind of curious why would why would somebody do this instead of that those type of questions can really pay off because and sometimes they don't sometimes they'll give you an answer and it's not particularly useful or interesting but every now and again you'll ask a questions like why did you do this I had one deposition where I asked somebody well why did you it was a contract suit and they had overtime charges on the lawsuit but the overtime charges weren't on the invoices back when the work was originally invoiced and so well that seems odd why did you add overtime here and the witness says well I'm just trying to juice up the damages so I can get more well you know then okay I mean I didn't expect that answer but if I hadn't been curious about well why did you do that then I probably would have ever got that answer but once I got that answer then I started to ask about every invoice well did you do that on this one voice and then of course he had to say yes because he already that's a brutal afternoon to have to answer that way over and over again yeah you know it got me thinking just talking about this we next week or whenever we do another one of these I think we should talk about depositions and how we approach depositions because I think we've done enough of them we've made so many mistakes that we every mistake Under the Sun we've made at least twice in deposition and so maybe we can give some practice pointers at least from our viewpoint of how to take an effective deposition yeah I think it'd be a great idea that's all we have for you today thank you so much for joining us you can find a recorded version of this on our youtube channel along with all of our other videos if you have any other questions that you'd like us to answer feel free to give me an email send me an email a Keith at Al Dave law comm or you can always email Stuart Stuart ste WRAT at Al Dave law comm and we will be back here next Wednesday 1:30 p.m. to talk to you again thank you right take care.