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This chapter is from the book

A Learning Experience for Both Litigators and Witnesses

Lawyers have not missed the opportunity to use Gates's performance to make a number of points about the art of giving and taking depositions for the education of trial attorneys. Such depositions are especially well suited for instructional purposes when they are videotaped, as this one was, and then dramatically introduced in relevant portions during the presentation of the case and the examination of other witnesses at the trial. Former Federal Judge Herbert J. Stern and George Washington University Law School Professor Stephen A. Saltzburg have devoted an entire chapter to the analysis of portions of the Gates deposition in the fourth volume of their series for attorneys, Trying Cases to Win.4

Along with Bank, Stern and Saltzburg also have pointed out that, regardless of the reasons that prompted Gates to testify as he did, the resulting performance made it extremely difficult for him to take the stand after the deposition had been introduced by the plaintiff in the trial before the judge. They also discuss why it makes good sense to treat the videotaped deposition as if it were itself the trial. According to Stern and Saltzburg, the strategy of having as knowledgeable and important a witness as Bill Gates (the personification of the defendant in the lawsuit) appears to deny the plain meaning and significance of one evidentiary document after another ultimately harms the case for the defendant. It erodes the credibility of one of the main witnesses and may also enhance the importance of the documents to the fact finder, in this case, the judge. These are heavy potential losses to incur during the discovery phase of litigation. Such losses can turn out to be powerful and persuasive admissible trial testimony from which the legal team cannot recover during the actual trial.

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