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Since he began practicing in 1987, Martin Harris has never lost a case. OK, he has settled his share, but he’s still 50 and 0. So what’s his secret? Harris, a partner at Chicago’s Connelly Sheehan Moran, says that it’s all in the depositions. Particularly, the employment defense lawyer says, the plaintiff’s deposition. “Most people use it to learn about the case; that’s not how I or my law firm looks at it,” he says. “We look at the plaintiff’s deposition as the best opportunity to get admission to win summary judgement.” And his wins predominantly come at the summary judgment stage, as did his 50th, Hemmert v. Quaker Oats II, No. C-3-98-336 (S.D. Ohio 2001), an age-discrimination case. He also boasts eight other wins for Quaker Oats in cases stemming from a layoff at the company. He garnered a big win last year with Chapman v. A.I. Transportation, an en banc case in the 11th U.S. Circuit Court of Appeals that established important rules governing how courts should treat “subjective criteria.” Harris’ firm sees the deposition as so critical that whoever is first chair at trial is the person who takes the deposition. When that’s Harris, he begins by making a list of the factual points that he needs for an undisputed summary judgment win. The questions he asks are designed to elicit the responses he needs. How does he do that? He calls it “tricking the plaintiff into telling the truth.” By that he means he starts with the philosophy that a plaintiff will try to “slant” the truth. You need to anticipate that, he says. Plaintiffs, he believes, fall into three categories: those who will tell the truth no matter what the question, those who will be dishonest no matter what the question and those in between: “They don’t want to lie under oath, but they will slant their testimony by their word choice.” Consequently, Harris uses a number of tricks to get the plaintiffs to say what he wants. The first he’s dubbed “misdirection.” For this, he employs a series of questions that make the plaintiff think he is talking about one set of criteria, when he’s really interested in finding out another. For example, he suggests the person was boring clients in presentations and when he asks if the person was incorporating into client presentations the thousands of tedious graphs and statistics the firm sends out each week in the client presentations — and gets a “no,” he’s got ‘em. The manager never complained that the employee was boring — he complained that he never used the appropriate material in client presentations. So he was tricked into telling the truth. That is, if he wasn’t intending to tell the truth in the first place. Other techniques Harris uses include making the plaintiff’s excuse for him, so he can give a truthful answer without losing face. For example, sympathize with the plaintiff that he had personal problems in January and then had another project come in, so he won’t think it looks so bad when he says that he didn’t get the project done on time. Harris also uses assumptive questions — a familiar sales tactic for those who have been asked in a department store which color shirt they’d like, rather than if they like a shirt. He also will “bury a needle in a haystack,” so a plaintiff isn’t aware of the significance of a question. And, counterintutively, he likes to “whack the plaintiff at the outset.” If the plaintiff knows he’s being impeached in the deposition, he’ll stop lying by the seventh, eight or ninth question, Harris claims. Why wait for trial to impeach when you can get the admissions for summary judgment now, he wonders. “If you never play the impeachment and settle, that arrow is still in your quiver and you never shot it,” he says. The impeachment point, he noted, was something one of his partners learned about from a conference in California years ago. It has since been adopted firmwide. In defending a deposition, Harris has some pretty novel ideas as well. He helps his witness refresh his memory before the deposition so he doesn’t say, “I can’t remember” during his adversary’s questions. “My primary focus is not to deny them information,” says Harris. “I’d like my opponent to hear that he’s got this really big problem with his case.” It improves settlements, he says. And for the clincher — writing the brief that will win the summary judgment — Harris has some other hard and fast rules that obviously have served him well. First, he tries to win the case on the statement of facts. Then the legal argument gives the judge the justification to do what he already wants to do, Harris says. “The classical approach is to make the statement of facts as short as possible so it looks like there’s no dispute. I do the opposite. It’s not at all uncommon for me to do a 20-page statement of facts and a five-page legal argument.” Judges are people too, he says, and they want to hear a story.

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