One of the best things about the seasoned trial lawyer is the wealth of his experience.

One of the worse things about the seasoned trial lawyer is the poverty of his experience.

Trial lawyer, let’s look at just one of your jobs — the discovery of the other side’s facts. Do you file the suit, then serve Interrogatories and Requests for Production, and, after finally receiving all of the other side’s discovery responses, then and only then take the deposition of the other party? This would be normal, this would be expected, and at least in most cases this would be safe and productive.

But your job is not merely to be normal, or to do the expected, or to be merely safe or productive. If you want to exceed those meager standards, create and cerebrate.

Let me give a personal example. Some years ago a kindly old gent and client of mine — a victim of a vicious attack by two dogs — called me one day and said that the owners of these same dogs, who were about to be sued by this gent — were “still” taking them on walks in public (including by the nearby elementary school) without a leash. This they did after being criminally-convicted of harboring vicious dogs and assuring the criminal court that they would faithfully obey the court’s Order to walk the dogs on leash, without exception.

The old gent and I intended to sue for both compensatory and punitive damages, so I was most interested in these owners’ obvious continuing conscious disregard of the safety of others. Such conduct supported punitive damages and also showed that substantial punitive damages were necessary to “deter” defendants because not even a criminal-court’s Order had deterred them.

With just a little cerebration and creativity, the old gent and I devised a discovery plan that was not extraordinary but was out of the ordinary: 1) the client would film these daily violations of the criminal-Court’s Order; 2) we would file and serve the suit papers along with Notices of the Depositions of the dogs’ two owners (husband and wife); 3) the depositions would be noticed for a date before our deadline for responding to Defendants’ discovery, which we assumed would include requests for any relevant photographs or videotapes; 4) the depositions would occur in my office, around my conference table and next to our TV/VCR.

Fast-forward to my conference room a five or six weeks after serving the suit papers and Notices of Deposition. After I obtained the wife’s repeated sworn statements that neither she nor her husband ever walked the dogs without a leash after the attacks on my client, the events in my conference room went something like the following:

I reach inside my briefcase and pull-out a videotape. I walk over to the TV/VCR and insert the videotape. I start the video. Both a date and time stamp appear in the lower right-hand corner of the video, reflecting a time in the morning and date about two months after the criminal-court’s sentencing. I ask the wife, “who is that woman walking the dogs?” Her face is ashen and she is doing something akin to sputtering. “Whose dogs are those?” “Are those dogs on a leash?” “Is the date/time shown on the video before or after the Judge ordered you and your husband to walk the dogs only on leash?”

Had we conducted discovery in the normal, expected fashion, we would have taken the dog-owners’ depositions after we responded to Defendants’ discovery, which not surprisingly included Requests for Production for relevant videotapes. The Defendants would have seen the videotapes before their depositions and they never would have dared to lie under oath.

But a simple, modestly-creative variation on the expected caught the Defendants in a big lie that later proved to be the foundation for a verdict many times the Defendant’s offer.

The moral of the story may be: jurors don’t like vicious dogs or the owners that continue to parade them in public without a leash, but they really don’t like owners who do that and lie about it. Defendants tried to fool the jury, and jurors don’t take kindly to that.

The lesson for the trial lawyer? Your experience may dictate the expected, but if you blindly follow the expected you may miss the opportunity for the exceptional.

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