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When it comes to recruiting and retaining associates, Dechert and Pepper Hamilton are bitter rivals. So on the surface, one might think the last thing these two legal titans would want to do is help train each other’s associates to become better attorneys. But that’s just what they’re doing this week, as the firms participate in the fifth annual joint deposition program. Close to 60 midlevel associates from various Dechert and Pepper Hamilton offices across the country have gathered in Philadelphia for three days to learn the fundamentals of taking and guarding depositions. While there is a series of lectures planned from Dechert and Pepper Hamilton partners, that’s not the thrust of the curriculum. Based on the “learning by doing” principles employed by the National Institute of Trial Advocacy (NITA), the program revolves around simulated depositions that include actual court reporters recording portions of the proceedings and actors hired to portray the roles of witnesses and clients. This year’s program kicked off Monday and runs through Wednesday with 32 Pepper Hamilton associates and 25 Dechert associates participating — most in either their third or fourth year out of law school. The associates will be split up into eight deposition teams of three for each firm, with the Pepper Hamilton lawyers representing the plaintiffs and the Dechert lawyers advocating for the defendants. A partner from each firm will observe the proceedings as faculty members and offer critiques to the associates, who can also view videotapes and transcripts of their work. Two actors will also participate in each faux deposition. The idea for the program emerged several years ago as Dechert litigation department vice chairwoman Amy Gininsky was riding in to work one day with her husband, who just happens to be Pepper Hamilton litigation partner Andrew Rogoff. “Andy actually suggested that it might be good for associates to get a better feel for how to handle depositions,” Gininsky said. “We also like the idea that younger lawyers could get to know other younger lawyers and do something in a collaborative way. I think that’s important for the purpose of civility in our profession. We rarely face Pepper lawyers in court because we are both defense firms, but it’s good for them to go up against other good lawyers and get to know them.” Pepper Hamilton counsel Donald Green, a Washington, D.C.-based litigator who also serves as the director of NITA’s deposition program, organized the curriculum for the program. Green said law schools do not offer extensive coursework for how to handle depositions, and associate training usually revolves around working with a partner to develop an outline of questions before the proceedings. “Depositions have become more complex and are filled will tons of potential traps,” Green said. “For instance, you might have a situation where a young lawyer walks into the room and a more experienced opposing counsel says, ‘Hey young fella, I guess we’ll agree to the usual stipulations.’ And the younger lawyer will agree, not knowing that there are no usual stipulations. “You also run into problems when an associate doesn’t realize that certain objections must be raised at the deposition stage or you waive the right to object at trial. I’m talking about situations where a witness might use vague language that can be corrected.” Green said another problem develops when a young lawyer is jolted off his or her list of questions by a witness or even his or her own client. “You really have to learn to listen to the answers,” Green said. “For example, a young lawyer might ask a question such as, ‘Did you see a doctor after the accident?’ And the defendant responds by saying, ‘Yes, I saw Dr. Jones.’ And the associate moves on to the next question without thinking about that answer. “What the associate should have asked is, ‘Who was the first doctor you saw after the accident.’ The witness might then answer, ‘I saw Dr. Brownfield and he said I was fine, and then I saw Dr. Smith and he said I was faking it. Then I saw Dr. Jones, who said I had a problem.’” Green said the actors used are often repeat participants. He said the actors enjoy the improvisation aspect of their role, staying in character even while using a restroom. He said the actors are given a list of eight different personalities — which include “too talkative” or “scared and nervous” — and are asked to play a specific one for the proceedings. Molly Peckman, Pepper Hamilton’s director of associate development and a program coordinator, said that one actor pretended to come close to blows with another faux witness. Green said another actor broke down and started crying while being questioned. “The challenge often starts when a witness or even your own clients says something that the associate wasn’t expecting,” Gininsky said. “This is a chance to try and hone their skills with the pressure of having to perform in front of the partners at their firm, which makes them stronger for when the pressure is really on in an actual deposition.” Michael Raffaele, a third-year associate in Pepper Hamilton’s health effects litigation practice, said associates often think of depositions as revolving around the written page. “It’s really important to understand that you are going to have to be prepared to encounter any situation and learn to adapt,” Raffaele said. “What I’m hoping to get out of this is twofold. To take in what we learn during the lectures and immediately apply them during the [simulated] depositions. And I also want to get the immediate feedback from the partners.” Unlike Raffaele, Dechert third-year associate Andrea Toy Ohta has never taken a lead role in a deposition. “So for me, this will really be a learning experience,” said Ohta, a commercial litigator. “I want to learn a few things that will help me when I have my first actual deposition.” Maria Feeley is a seventh-year associate who was encouraged to participate in the program because she lateraled to the firm earlier this year as part of Frank Devine’s move to the firm from White & Williams. “It doesn’t matter what year I’m in; I just think it will be great to see how seasoned lawyers adjust to certain situations,” Feeley said. “In the end, I just want to walk away with something I can use.” Dechert third-year associate Eben Flaster has handled several depositions while working in the firm’s vaunted products liability defense group, where he mainly represents pharmaceutical companies. “I just think it’s a great chance to get some feedback from more experienced lawyers as well as to meet lawyers from other firms,” Flaster said. Program participants have already been given an introductory lecture from Green, Peckman and Steve Brown, Dechert’s associate development partner. Woven in between the simulated depositions will be lectures from Dechert and Pepper Hamilton partners on topics such as interrogation technique, ethical issues, using exhibits and laying foundations, and how to take/guard a videotape deposition.

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