Because one of the most important stages in the litigation process is the discovery deposition, we have included a couple of articles this month about depositions in particular.
Our lead article, “The Reason Storytelling Works,” emphasizes reasons that presenting a case in story format is much more beneficial than presenting a case as a set of isolated facts. We hope you find it informative and helpful, as well as our other deposition-focused article, “Appropriate Objections in Deposition.”
We also encourage you to submit articles that you think will be helpful in assisting other legal professionals with the discovery process.
The Reason Storytelling Works
By Brad Bradshaw, Ph.D. Bradshaw Litigation Consulting
“Storytelling” is an unfortunate name for an extremely important concept. When used in a non-legal context “storytelling” has a negative connotation – denoting myth or even deception. However, in the legal arena the term “storytelling” refers to both the emotional and descriptive elements of the case that provides context and meaning to the facts. Facts are important but facts are not the story.
There are several reasons that presenting a case as a story is favorable over presenting a case as a set of isolated facts. One reason is retention. If two groups of people are presented with the exact same information – Group 1 as a list of facts and Group 2 in the format of a story – the second group will always retain more of the information than the first. This happens for several reasons.
First, a well told story will prompt the listener to think visually about the information. Creating a mental representation of the events helps solidify the information in long-term memory.
Second, stories tie information together like the links on a chain. Therefore, if a listener is able to recall one piece of information, it is likely that he or she will remember other information that was presented in close proximity.
Third, people are accustomed to receiving information in the format of a story. Nearly all of our entertainment is presented as a story because doing so keeps the audience’s attention. Boring information (e.g., a list of dates and facts) prompts the mind to drift and the information is not received.
Please note: the law being quoted in this article is California law.
Have you ever taken a deposition and had your opponent continually assert inappropriate objections? One after the other: “Irrelevant,” “hearsay,” “assumes facts not in evidence,” “calls for an opinion.” Obnoxious, isn’t it?
Or worse yet, an attorney makes speaking objections blatantly designed to coach the witness, such as: “Calculated to mislead the jury into believing his side of the story, i.e., that the cardiologist failed to review the abnormal EKG and focused exclusively on the mucus in the lungs, when, in fact, the evidence suggests that the EKG was not conducted until after this witness examined the patient. I instruct the witness not to answer on the grounds that doing so would be prejudicial.”
Considering that depositions cost a thousand dollars or more to take and sometimes require weeks or months to convene, inappropriate objections can be pretty infuriating. This begs the question: Which objections are appropriate in a deposition?
The first thing to remember is that depositions are for conducting discovery. And the scope of permissible discovery includes “any matter not privileged, that is relevant to the subject matter involved… [that is] itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code of Civil Procedure §2017.010.
“You seem to be in some distress,” said the kindly judge to the witness. “Is anything the matter?”
“Well, your Honor,” said the witness, “I swore to tell the truth, the whole truth and nothing but the truth, but every time I try, some lawyer objects.”
There was once a young man who, in his youth, professed his desire to become a great writer.
When asked to define “great” he said, “I want to write stuff that the whole world will read, stuff that people will react to on a truly emotional level, stuff that will make them scream, cry, howl in pain and anger!”
He now writes error messages for Microsoft Corporation.