Depositions Are Trial
What if the outcome of a nursing home case starts taking shape long before anyone enters the courtroom? Depositions are a critical part of litigation, creating testimony that can influence how a case develops and ultimately reaches trial. Understanding their importance can help explain why preparation, questioning, and testimony deserve careful attention from the beginning. In this week’s episode, nursing home abuse lawyer Rob Schenk welcomes Sach Oliver to explore why depositions should be approached with the seriousness of trial.
Intro
Schenk:
A deposition is not a rehearsal. Done right, it is trial before trial. I’m lawyer Rob Schenk. This is the Justice for Residents podcast, and this week I’m joined by Sach Oliver, catastrophic injury lawyer and author of Depositions Are Trial, to discuss treating depositions like the courtroom event that they really are.
Themes tested, visuals ready, examinations prepared, and sometimes everybody’s standing up. Stick around.
Oh, feeling the funk on that one. Fantastic episode today. I totally fanboyed out on this one. I’m a huge fan of Sach Oliver. In fact, I highly recommend that everybody listening, I don’t care if you’re a lawyer or not, go out and check out his book, which is Depositions Are Trial. I’ve dog-eared mine, notes, everything.
It is a great read, and in the same way that Roger Dodd’s The Science of Cross-Examination really challenged what I thought about law and taking depositions, this one did too. I’m too chicken to do some of the stuff. I will say that.
I’m working on it, but a lot of the stuff that he recommends in here I’m starting to do now, and I really recommend that you check it out. If you want some more homework aside from reading that book, I recommend you go check out a couple of previous episodes concerning depositions. In episode 225, we had Victoria Shaw on the show talking about how to effectively depose nursing home employees.
So not just the broad concept of depositions, but deposing nursing home employees. And then, of course, we had episode 305 back in June of this year with Roger Dodd, Cross-Examination and Depositions. And then one of my favorite episodes of all time, episode 319 with the dynamic duo of Dustin Herman and Nicholas DiCello, which is Creating Exhibits at Depositions.
Listeners can revisit our earlier conversations on deposing nursing home CNAs, cross-examination at depositions, and creating exhibits at deposition for use at trial.
So those are your homework episodes before you listen to my interview with Sach Oliver today. And one more thing that I’m promoting. I feel like I’m the CVC or whatever the… What is it? What was it called from the ’80s, where “You’ve got 20 minutes to buy these knives”?
QVC. QVC, not CVC. I don’t know what that is. QVC. Okay. I feel like QVC, but I’m not. So if everything goes according to plan, this episode will air on November 2nd of 2026, which incidentally is my son’s fifth birthday. So although through the magic of science I’m talking to you right now, I’m actually probably at some party with a bunch of kids.
But next week, the week of November 8th through the 11th, Sach Oliver himself is hosting a seminar in Nashville, Tennessee, and if you’re from Tennessee, that’s how you say it, you stress the first syllable, Nashville, Tennessee, on Depositions Are Trial. It’s a four-day event where you go soup to nuts on his concepts that we actually talk about a little bit today.
I know it’s late in the ballgame if you didn’t already know this, but maybe perhaps if you’re in Nashville, go check it out. Or if you’re like my crew in Atlanta, just drive up there. You don’t need to fly. Just pay the tuition, go up there for four days, hang out, do the honky-tonks.
Guest Intro
Schenk:
I grew up… so I’m from Nashville, so I say I’m from Nashville, but if you’re from Nashville, I’m actually from Mount Juliet, so that’s about, I don’t know, 10 or 15 miles east of Nashville proper. Anyway, I digress. Go check out Sach Oliver’s seminar, and with that, folks, we will get into the meat and potatoes of the episode.
Sach Oliver, named after baseball legend Satchel Paige, is a catastrophic injury and wrongful death trial lawyer from Arkansas, and the author, as I mentioned, of Depositions Are Trial. A former rodeo athlete and award-winning trial advocate, Sach now teaches trial tactics nationally. Over the past five years, his own law firm and he himself have achieved 18-wheeler verdicts that have averaged over $64 million.
What Do You Mean When You Say “Depositions Are Trial”?
Schenk:
So Depositions Are Trial sounds cool. That’s an awesome book title, cool slogan. But in reality, when you say it, Sach, what do you mean?
Oliver:
Literally, your next deposition is the jury trial, as if the judge and the jury are in the conference room with you, so that you’re fully prepared for trial.
Now, it started out as just a philosophy and a mentality to get better results in depositions. However, now with today’s modern jury trial, we are seeing more and more witnesses introduced by video, and so what started out as a philosophy has become a reality, where we are seeing a minimum of one, and as much as half, of our witnesses at the courtroom in the jury trial by video.
Therefore, the Depositions Are Trial philosophy and mentality has become more real and important and essential than ever.
Families may also wonder why a nursing home case would go to court rather than resolve earlier.
What Is Your Preparation Strategy?
Schenk:
It sounds to me that you are not just talking about the visual strategy, making sure that you might have multiple cameras, that you’re standing up, walking around. But it sounds like your preparation goes beyond, “I’m just gonna find out what this person knows.”
So talk to me about the preparation that goes into how you are approaching that particular deponent.
Oliver:
Well, we have a deposition strategy game plan where at the very beginning of the case, before you’ve even done full written discovery, you develop a strategy as to who you should depose for the jury.
Not, go depose everybody, let’s go turn over every rock, ’cause that takes a lot of time and money and resources. Instead, it’s who do we need to depose in this case for the jury to understand the story? Now, you get that plan on the board, you write it out, you put it in the file, then you start written discovery, of course, and you get tons of documents, and you file motions to compel.
You know the drill. And then you learn something new, or a new individual or a new corporation or a new non-party, and you add that actor to the scene, that witness to the jury trial, to the order of proof, so that it’s strategic. So that once we decide, here are the eight people we need to depose for the jury in this case for our client, then you say, “What do we need to do to prepare for trial for this deposition, for this star witness, for this key witness?”
Families can learn more about who investigates a nursing home abuse case and what evidence may be gathered.
That mindset, that mentality is delivering unbelievable results. We are then obviously preparing a deposition outline with a strategy and sequence that we teach in the book and I teach all over the country, and we’re teaching at an upcoming Depositions Are Trial Nashville event in November that’ll be the most in-depth deposition conference in history.
And so we’re teaching how to do this, but you have the strategy with the outline, your exhibits are organized, your visual aids of the exhibits are all fully prepared before the deposition starts. I’m not saying we don’t leave a lot of room for creativity. We do. We’re creating visuals on the fly. But 80, 90% of our visual aids are already pre-created before the deposition ever starts, and used with the defense witnesses throughout their deposition and throughout the case.
We are looking for that 15 to 30-second video clip that can tell the story of our client’s case.
Why Do You Focus Group Before Depos?
Schenk:
Tell me about the role of the focus group when you are in the middle of that process, where you’re trying to figure out what emphasis you give certain parts of the story, what sequence you might put them in.
Where does the focus group come in when you’re making those decisions?
Oliver:
It’s huge. So in 2012, I developed an extreme product mentality for our cases. We only handle large catastrophic cases all over the United States. And so if you’re going to have that type of practice, what I decided to do is every single aspect of the case, we have to create an extreme product.
For another example of how a firm builds its approach, see how Schenk Smith approaches nursing home cases.
And your question is about jury research. So we decided, let’s go extreme with our jury research. So we have a protocol on each case where we’re going to be doing, in the first stage, usually even before written discovery, an issues-driven focus group. Now, that can be virtual or it can be in person.
It’s 12 people, it’s 24 people, where we’re issue spotting. What it’s gonna do is frame the case. How do people see this case based on what we know at this point? But it’s so helpful. If you just ask a group of 12 people, based on the following 25 facts, what else do you need to know? They’re gonna give you your written discovery plan.
Who do you wanna talk to? That’s your jury. Who do you wanna talk to at this corporation? They’re gonna give you your deposition strategy plan, or a ballpark. Then as we start written discovery and as we start taking depositions, we’re going to develop more strategic focus groups that will develop into mock trials and an adversarial process, where we will develop the defense case in total based on what we know, based on what we learn the defense is going to do.
And when I say go to extreme, not every case, but most cases, we will actually hire a seasoned insurance defense lawyer to assist us in the preparation of the defense’s case, just so we don’t have plaintiff lawyer blinders on.
And then we start adversarially testing the case in mock trials and jury simulations, and those grow.
So it’s very common for us to do three, four, six mock trial focus group processes during the development stage of the case. Once the case is in the bag, we’ve done all the discovery, it’s complete, we’ll normally do a mega jury simulation where we’ll bring in 136 jurors two days in a row and fully test the case based on all the information that we have.
And of course, what we’re looking for is we’re measuring data, empirical data. When you get to testing a case in the hundreds or thousands with big data, then you can start to truly measure and predict patterns and trends. Does that mean that you’re not wrong sometimes? Yes, it does mean we’re wrong.
I’m not trying to say it’s certain. But when you start to get into the number of individuals tested where you can measure patterns and trends, then you can really use the language the jurors wanna use in your depositions. Another thing that happens, you’ve got to be nimble and know that some cases take turns.
We’ve all had cases like that, and we’ve gotta be nimble, and the focus group usually is our first tell or sign that something’s got to change strategically. We hope and we pray we’ve got another few depositions to make that change, and so we will literally go and change our strategy with the second three depositions or the last two depositions to adjust to what our focus group learnings are.
And then to put the cherry on top with our extreme product, the jury research, we do dress rehearsals no later than two weeks before the jury trial. Sometimes it’s about one week before the jury trial, and we always do that over two days, so that our trial team, when we stand in front of the jury, we have already rehearsed and done jury selection on a group of 24 to 36 jurors.
We’ve already practiced it, and we’ve already done at least an opening statement, if not more, of the case.
Because preparation takes time, families often ask how long it takes for a nursing home lawsuit to go to trial.
Question of the Week
Schenk:
Wanted to take a quick break to give you the Nursing Home Regulation Question of the Week. This week, folks, I’m gonna say that the difficulty level is medium. So if you’re parking at the grocery store or at the gym or wherever you’re at, you’re allowed to drive around three or four more times to find a closer parking spot if you get it right.
Under 42 CFR 483.20, the nursing home’s comprehensive assessment must, as in is required to, include assessments of the following: A, hearing, B, religious preferences, or C, mood and behavior patterns?
And that answer is C. The comprehensive assessment that every nursing home must conduct of every resident at various times must include an assessment of mood and behaviors.
Do You Prepare the Depo Like a Cross-Exam?
Schenk:
Take me back to the opening salvo of the case. You have done however many focus groups to hone in on what the jury, what inflames the jury, perhaps the documents that the jury wants to see, and perhaps the people that they wanna hear from. Now, when you go to do that depo outline, is it in the form…
And I’ve had the fantastic Roger Dodd on this program a couple times, and his philosophy is depositions are cross-examination. Is that kind of the idea, that you’re going in, you’re gonna cross-examine these defendants as if they are at trial? I probably know the answer to this. In other words, I guess what I’m saying is, you go in with vocab that you know you wanna use, admissions that you know you wanna get, and you know how to get them.
Or is it the other end of the spectrum, where it’s like you’re gonna be asking mostly open-ended questions and just trying to loop back maybe what they say, or maybe in the middle? And I’ll let you take it.
Oliver:
It’s in the middle. I agree with the depositions are cross-examination theory.
What I have learned is that it’s a combination of open-ended and closed-ended questions that get the best results. And I will tell you this, that some of our best video clips played in the courtroom in front of the jury came from an open-ended question, and it could be as simple as, “Why?” And the witness talks for three minutes, and it’s the best gold ever.
And so while I love the control of cross-examination questions and leading questions, if you read my deposition transcripts, you’re gonna see 80% leading cross-examination style questions and answers and about 20% open-ended questions. So I really believe in both. Basically, I wanna make something very clear.
We do have a strategy and a plan, but that strategy and plan is the truth, a true pursuit of seeking the absolute truth. Not some blown-up plaintiff’s lawyer version of it, just the truth. If we can open the window of truth and get corporations and truck drivers and eyewitnesses and defense experts to simply tell the truth about what the 18-wheeler company did, which is the cases I work on, that truth is all the jury needs to hear to reach a plaintiff’s verdict. And that’s very challenging to do, because on the cases I work on, the truth is in complete opposition to the defense’s case.
So you’re basically continually getting defense witnesses to say what’s the worst thing for them over and over, and that’s our strategy that works repetitiously, systematically, in every jurisdiction we’ve been in.
Strong deposition testimony can also affect whether families can settle a nursing home abuse case outside of court.
Do You Advise Standing Up? Multiple Cameras?
Schenk:
So for those out there that still have hair, you’ll probably get your hair blown back by this, but it’s the idea that when you’re doing an in-person deposition, you, Sach, stand up, walk around, have the deponent stand up, point things out like a courtroom.
Tell me about how that process developed, why you think it works, and why and how you do it. And again, I don’t wanna make the question 30 minutes long, but I can’t remember if it was in your book or in something that I heard you say, where you even have two tables, like a plaintiff and defense table, to simulate the courtroom in the deposition itself.
So anyway, go ahead. What are your thoughts on that?
Oliver:
Our thoughts are it’s just like in the courtroom. If you’ve tried cases in the courtroom, almost everywhere you go, it’s a requirement that you stand up while you cross-examine a witness. Not always. I’ve been in some courtrooms where they had you sit.
I’ve been in courtrooms where they had you stay within an arm’s distance of the table. But most of the time, you have the freedom to walk around the courtroom while you cross-examine. And you and I have had witnesses stand up and draw on butcher pads and visual aids in front of the jury many times. We can do that in the depositions.
The rules state that depositions are to be conducted as if in trial. We all know that. All we started doing in depositions, and I don’t want to complicate it, is doing what great trial lawyers have been doing in the courtroom for years, and that is having visual aids, standing up and moving around the conference room, the courtroom, with witnesses, asking witnesses to stand up and draw on butcher pads, things like that.
Attorneys can review the rules that govern how depositions are conducted.
It’s not excessive either. So for example, I may go three depositions and nobody stands up. At the next deposition, yeah, I may stand up for some very important visual aids and a lot of paperwork shuffling and end up working the room, because the exhibits are spread out in the room and we’re working back.
I may have the visual aid boards blown up, the three-by-four foam boards, in a U shape around the conference room, and I’m literally walking around the room and asking witnesses to join me occasionally. But you don’t wanna wear that out. Just like in the courtroom, you don’t want the up and down with your witnesses on the stand.
You don’t wanna ask them to stand up, then sit down, ask them to stand up, then sit down, right? So my thought is, if I want a witness to stand up in the courtroom, I wanna do that about one time, do everything I wanna do with them standing up, and then politely ask them if they’d like to sit back down.
I’m gonna do the same thing in the deposition if it’s appropriate.
What Does It Mean to Treat Visual Aids Like Visuals in a Play?
Schenk:
And you talk about in the book the concept that visual aids should be thought of like visuals in a play. Can you briefly talk about what you mean by that?
Oliver:
The goal is to storyboard the case so that you can put up the visual aid boards from left to right, like reading a book, and someone who knows nothing about the case could look at those visual aids and in about three minutes tell the big picture story of the case.
That’s the goal, without you and I saying a word. That’s what we’re looking to do with our visual aids, storyboard the case. Our presumption is that if it’s worth bringing up in a deposition, it’s worth having a visual aid. That’s the presumption. Now, that’s not always true, ’cause there’s a lot of things said in a deposition, like names and addresses, that we wouldn’t visual aid.
What I mean, though, is when we get into substance, that’s our thought. It also helps us narrow the case, because we’ll be going down, we got these 10 issues. Okay, we need a visual aid for issue one, issue two, issue three. It’s like, do we need a visual aid for issue four? That tells me we probably don’t need issue four.
We need to exit. If it’s not worthy of a visual aid, why are we talking about it? Now, these are presumptions, obviously, but it’s mindset. If you have a methodology and a mindset, preparation becomes easy. It’s do the work, learn the process. Learn the process, do the work. And in our firm, and many firms and lawyers across the country who’ve adopted these methodologies, on a daily basis, I’m getting text messages, emails, videos sent to me.
I got a transcript sent to me this week from a great lawyer in California who said, “I stood up and took the deposition. Here’s the transcript. Look what happened.” The defense lawyer’s like, “What are you doing?” It was a great transcript. Matter of fact, we’re gonna do a social media post to highlight that lawyer and his great work simply standing up during the deposition.
So it’s very motivating to see the great results from across the country through this methodology.
Other practitioners have shared not-so-obvious thoughts on taking a deposition as well.
Schenk:
I think it’s fantastic, and I had Mark Kosieradzki on the podcast a few times talking about 30(b)(6) depositions, and I told him, “Man,” he’s recently retired, but I told him, “You have a legacy.
You have thousands of attorneys learning from you and your books, and then you’ve got appellate decisions that are shaping policy and the law.” Like that’s gotta feel good. And of course he’s humble. He’s like, “No, it just feels good to be blah, blah.” That’s how I think about this.
For me, your book, and I’m holding it up for anybody that’s just listening but not watching, Depositions Are Trial, man, there are things in here I didn’t even think about doing. And now I’m…
Some of the stuff I’m too chicken to do, but I’m working on it, right? I don’t know if I can have all these boards up and walk around, but I’m starting to incorporate this, and I’m just one dude out of thousands of people, and I think it’s really great that you decided to share what you’ve got.
Why Is It Important to Have a Deponent Sign Something?
Schenk:
So I guess what I was gonna say is, in the last couple minutes, something that I underlined in the book is you prepare most of your visual aids, you’ve already focus grouped them, and they’re already done. But why do you think it’s important for the deponent in the deposition to in some way touch it for trial?
In other words, either sign it, date it, initial it, underline it. Why is that important to do?
Oliver:
It’s ownership. It’s also what I call interactive testimony. So we’re so used to, and I believe that the viewer gets numb to, question, answer, question, answer, question, answer. You and I just fell asleep.
So what we wanna do is create interactive testimony. We wanna create engaging testimony. We wanna create a feeling, an emotion with testimony. That means we want body language, we want facial expressions. And quite honestly, why do great movies have drama and a storyline? At the end of the day, our cases are very dramatic.
There’s not a single case that you and I have worked on where someone wasn’t hurt in a significant way or even had their life taken. Our cases have drama built in, and then the investigation into why the corporation did this, of course, is drama. Okay? You and I don’t create the drama. We just use the truth.
And so visual aids, when you get the wrongdoer to own something, either by just holding it up, by touching it, by talking about it. The simple act of handing someone a document or showing it to them by Zoom, and let’s say it’s a critical document, like the document that shows the corporation did wrong, whatever that is in your kind of case.
We usually have a document like that. The facial expression of the witness… I would want an awkward 10, 15, maybe 20 seconds of silence after I hand somebody that critical document. I’m intentionally creating that experience, that emotion, and so many lawyers are like, “Document one, question, boom. Document two, question.”
And I’m not saying we don’t do that most of the time. It’s just, why are we here? That’s what Depositions Are Trial focuses you on. If it’s just another discovery deposition, we’re just going through the motions. If this is the jury trial, why are we here? It’s because you took a life. It’s because your corporation decided to make a series of intentional decisions that resulted in our family losing their youngest child. Whoa.
Facial expressions change then. And so that’s why I think it’s important to have some sort of interaction with these visual aids and exhibits, to create that emotion. I’ll say this, just ’cause I know people are listening to me, and I’m thankful for that, but I wanna put things in context. I’ve learned how important that is in teaching.
You don’t have to have the witnesses sign every document or initial every document. Only critical ones. And I will tell you, with Zoom today, I am now having just as much success with asking a question, popping up the visual aid, they say true, and we graphically check the box true electronically, Rob.
And I will tell you, it is having the same impact as when we’re in person and they’re signing it with a Sharpie or a pencil. So I wanna also encourage people to be creative, come up with new ways, but be intentional with getting the story told through these depositions.
Schenk:
Very well said. And so Sach, thank you so much for coming on the show and sharing your knowledge with us today.
Oliver:
Rob, I’m honored and I’m humbled. Thank you very much for having me, and you did a great job in this interview.
Schenk:
Thanks. Folks, I hope you found this episode educational. I most certainly did. Happy birthday to my son. Five years old. He’s doing it, twoing it, rocking and rolling. He’s all into Captain America right now, the Avengers, Star Wars.
Basically every single IP that you can possibly think of, the kids these days, they know about them all. Hopefully he’s having a good time. And if you have an idea for an episode, let me know. If you have an idea for a topic you’d like for me to speak on, already said that. If you have an idea for someone you’d like for me to talk to, let me know that.
New episodes of the Justice for Residents podcast come out every single Monday. With that, folks, we’ll see you next time.
Thanks for tuning in to the Justice for Residents podcast. Nothing said on this podcast, either by the host or the guest, should be construed as legal or medical advice, nor is intended to create an attorney-client relationship between the listener and either the host or any guest. New episodes are published every Monday and are available on all your favorite podcast apps, as well as on YouTube and our website, justiceforresidents.com.
Again, that’s justiceforresidents.com. The Justice for Residents podcast is hosted by Rob Schenk, a trial lawyer representing victims of nursing home abuse and neglect throughout the state of Georgia. We’ll see you next Monday.