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Posted in Legal Services of Eastern Missouri on April 6, 2021   |  by Gary Burger

Three Recent Zoom Depositions

Recent Zoom Depos from Gary Burger

I have had a bunch of important depositions in three different cases in the last three weeks. All by zoom - a change I hope stays with us after the pandemic is over.

For a lot of depos I do, I am not that worried about questions or preparation as I have done similar ones many times. But with depos that can really make a case, I still get anxious. These usually are of the main defendant in big exposure cases.

On the one hand, I get a little tired of worrying about not messing up - which can be stressful. But that's part of the job. On the other hand, it's great that after almost 30 years of practice, I still care enough to want to do a great job in every depo.

My long-time paralegal Casey and I have a joke where we say I need to go win the case in these types of depos. That's all, no pressure - just win the entire case in one depo. But again, that's the job. And - I really love it and am lucky to be able to do what I do.

Two Fridays ago, I deposed a construction company "safety" representative. The company's driver went across the centerline, crashed into my client's car, and killed him and his passenger. It's a sad case. The deponent was their ‘pro’ testifier who tried to wiggle away from the company’s conduct.

First Depo

In the depo, I was able to show that their training was minimal and not documented, they had little oversight of drug use of their driver and had about 1/5 of the drug test results they should have had in his file.

No investigation of what happened or how their driver, who tested positive for marijuana, was a daily pot user, had it all over social media, but they claim they did not know.

That was a depo where the company designates a representative to testify about certain matters on their behalf. And the great thing about zoom is I could be anywhere to do it. I had planned to be there live (first live depo in a year) - but then decided to travel to New Orleans to visit my oldest son in college.

I got to enjoy the weekend with family while doing the depo from a hotel conference room for a few hours. Here's a pic of me and my two sons in the Big Easy.

Second Depo

I had another big one of those three Fridays ago and then the following Tuesday. We are pursuing a claim against the State of Wisconsin similar to the one we had in Missouri for Correctional Officers not paid for pre and post-shift activity.

In those depos (for two days) we successfully checked boxes on class certification and liability. They admitted almost all corrections officers and sergeants (our class) (99%+) had to do pre and post-shift activity without pay per uniform department-wide policy.

They would never pay for it and had prior complaints about it. Didn’t treat anyone differently. Of course, none of this is written down in policies. Even though they promised their employees they would comply with FLSA. They agreed the pre and post-shift activity was pretty important too.

But boy was it a lot of work, my office organized all the documents with the help of paralegals. We identified all the good exhibits we have so far in the case – about 50 documents out of 20,000 produced.

Interestingly, the Wisconsin DOC pays for health screening at the beginning of shifts. But isn’t regular pre and post-shift activity more connected to their job than corona testing?

They agreed it was for health and safety - as are all the previous shift activities. Once this screening is over they will go back to not paying for any of it.

Third Depo

The third big depo was last week – it was of the top officer of a local correctional institution where my client was an inmate who was injured. I do not want to go into too much detail, as the case is pending, but the deposition went really well and the witness agreed with almost all of the opinions of our expert.

But that good result was only after I had poured over prior notes and depos to get the best result possible. And, again, I had to synthesize a bunch of documents down to just the key ones.

Stepping back and reflecting, I enjoy seeing myself rise to the challenge of establishing great evidence in these cases – i.e. going a long way towards winning the case. We accomplished that in all three.

And I laugh at myself for getting nervous – cause, after they are over, I appreciate how hard I worked to get them to go well. I wonder why I get anxious about them. I should know they will go well and not stress – but that’s the way it goes.

I also laugh at myself for, again, learning the lesson to work hard and trust my abilities as a trial lawyer. How lucky am I to be able to help my clients like this? And have fun and assess how I handle these situations all at the same time.

Here's a Lawyer v. Lawyer video podcast where Debbie champion and I discuss how zoom changes litigation practice

Sign Up for Gary's Zoom Deposition CLE

Gary Burger and fellow Burger Law lawyers Genavieve Fikes and Tyler Thompson will be presenting during the virtual CLE on Tuesday, April 15. They will be discussing Zoom depositions and mediations. Proceeds will be donated to Legal Services of Eastern Missouri. Learn more and sign up here.

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