The following is an interview conducted with Mark Kosieradzki, author of the Trial Guides book 30(b)(6): Deposing Corporations, Organizations & the Government.
Trial Guides: So, what made you want to write a book on 30(b)(6) depositions?
Mark: Well, you know what happened is, going through the practice of law I kept getting frustrated. I’d be going up against the government of the United States, corporations, entities, and I always just felt like they were going to crush me. And then I discovered 30(b)(6) is a tool that really is a David and Goliath. That I could flip their own obstruction on them, get the evidence I needed, and frankly we were either winning cases big or more often than not they were getting settled because we were getting the information we needed.
Trial Guides: What topics does the book cover and how is it structured?
Mark: 30(b)(6) is a deposition technique used for gathering information from organizations in the government. The book is structured in analyzing your case, understanding the various tools you can use for getting information from organizations and corporations, and then establishing the rules of engagement. What are the obligations of the person who is asking the questions? What are the obligations of the people who prepare? And then what is the net effect of the deposition to lockdown the information you need and get the summary judgements, the directed verdict, or the jury verdict you need.
Mark: Well Pat’s DVD series is great. My piece of the DVD series was an overview of 30(b)(6) kind of a tickler to let you know what you’re getting into and how powerful this tool is. But, the book takes that one-hour overview lecture, and it covers every single aspect of it. Everything you’d need for a deposition, and more importantly, everything you’d need for the motions you will invariably face to compel those depositions and get sanctions for noncompliance with the rules of the deposition.
Trial Guides: Does the new book contain examples from specific practice areas?
Mark: There will be covering medical malpractice, products liability, nursing home litigation, document depositions, employment cases. The book will be generally philosophical and technical, to learn the theories of 30(b)(6). At the same time there will be techniques and examples from specific cases.
Trial Guides: How is this book different from other books on the same topic?
Mark: Well, the way this book is different from any book on the same topic is it’s the most comprehensive book on the planet of this topic because it’s the only one.
Trial Guides: Who is this book written for and who would benefit the most from buying it, such as new lawyers experienced lawyers, or specific practice areas?
Mark: This book is written for trial lawyers and litigators. F.R.C.P. 30(b)(6) is the most misunderstood and underused rule out of the entire arsenal of civil procedure discovery tools. New lawyers coming into this topic are going to discover how much power they have. Lawyers are going to discover they can’t be pushed around by the government. Lawyers are going to discover they can’t be pushed around by corporations. Experienced lawyers are going to discover that there’s a whole world out there, a whole arsenal more that’s than a quiver, it’s a nuclear option. The government of the United States can also force the biggest corporations on the planet to divest information to them they wouldn’t get in their ordinary discovery techniques. And they’re also going to discover how to expose the obstruction their adversaries keep throwing at them and how to build a record to get sanctions to establish that they are entitled to that information.
Trial Guides: How can this book be used in law schools to build their practical curriculum.
Mark: Law schools in America are great on legal theory, but they’ve got a long ways to on teaching practical application of the law. I’m not aware of any law school that’s got a course on 30(b)(6) depositions. There are few which even have a course on depositions. This would be one of the most powerful tools a new lawyer could have going out into the field and marketing themselves. They know information that most of the lawyers in small and large firms wouldn’t know. A new lawyer could sell themselves by saying I know something, and I can bring something to the table to turn your discovery practice around.
Trial Guides: What tough problems does this book help the reader solve?
Mark: One of the saddest things that I’ve discovered in litigation is we live in a society of winning at all costs. We see it in sporting events, we see it in politics. No one ever talks about the fact that someone’s cheating. What they talk about is they spin, “Oh look what they could do, what they could get away with. How they charge that line, how they didn’t get the foul.” And they get to win. I was taught that you win by winning, if you cheat to win that’s not winning. What I’m frustrated by is in the legal community, people think that zealous advocacy means withholding information, misrepresenting facts, hiding documents so they can win. And I think that’s wrong. But this book gives you the tools to expose the cheaters, to flip their own obstruction on them. It’s litigation jiujitsu. And by doing that, you can come out wearing the white hat and winning at the same time.
Trial Guides: How did you end up in a career practicing trial law?
Mark: I was genetically bred to be a fighter. My parents were Polish immigrants. My mother fought in the Polish underground. She lived in sewers, she dropped molotov cocktails into Nazi tanks, was ultimately captured and went to a concentration camp. My father was swept up by the Russians and sent to a gulag in Siberia. They survived it all. They ended up going to Italy where they met in medical school, graduated the top of their class. Emigrated to America with nothing other than what was in their head. And I was taught from birth that you stand up for what’s right, you don’t let people push you around, and you’ve got to use your head. And you’ve got to use ingenuity to solve any problem. And I ended up in law school, I ended up in litigation, I ended up standing up to the corporations. I figured if my mom can stand up to the Nazis, I can stand up to anybody.
Trial Guides: What personal qualities make up a successful trial lawyer?
Mark: You need perseverance. You need to think outside of the box. You have to be able to take bullets, bleed, and still keep working. You got to be able to take frustration and then you have to know you’re doing the right thing. You have to use your ind. You’ve got to use your guts and you always have to do it on high ground.
Trial Guides: To what do you attribute your success in winning big verdicts and settlements?
Mark: I’m not smarter than anyone else, but what I’m willing to do is look at things and understand them for what they really are. What’s the real story, what’s really happening, and how does that fit into the way the world works and the way people view the world. And work very hard, diligently looking for information what the other side. I think what drives verdicts more than anything is not what happened but why it happened.
Trial Guides: What do you find most rewarding in trial law?
Mark: You know, you can win big, you can win small. You can lose big and lose small, but when you’ve finished a case and someone’s child’s been killed or their mother’s been abused or their life has been destroyed, and you’ve given it everything you’ve got in that courtroom and the jury hasn’t even come back yet and your client comes back to you with tears in their eyes and hugs you and says, “You understand, you understand what we’ve been through. I love you.” There’s nothing like it.
Trial Guides: What do you find most frustrating in trial law and how do you deal with it?
Mark: I find obstruction absolutely infuriating. Adversaries...
Working With Other Lawyers
Trial Guides: What do you find most frustrating in trial law and how do you deal with it?
Mark: Obstructionists, they drive me crazy. They say things that aren’t true. They’re bullies. And they get really frustrated when you stand up to them. One of the things I learned as a child when I was small and kids would beat me up, the best way to stand up to a bully is to stand up to them. If you stand up to them they’ll back off.
Trial Guides: How do you decide you need help and how do you choose a lawyer to partner with.
Mark: Every lawsuit could use a different trial team. Look at the NBA and how they pick their players. It’s not always the best of every slot, it’s a combination of who fits together. We put together trial strategies. We partner with firms. Firms ask us to join their trial team. We try to figure out the dynamic of who’s got strengths at every single piece that’s important for this given case. And then we work together and collaborate. And by using the best talents of each person for the litigation process, trial is only as good as the facts you generate, by using the best talents of the best people you get the best results.
What it takes to be a trial lawyer
Trial Guides: When you hire a new lawyer or consultant what are you looking for?
Mark: Well you start with a baseline of raw intellect. You have to have that. But there’s an awful lot of smart people who haven’t succeeded. What you need is someone whose got grit. Someone whose smart, willing to put in the work, and think outside the box. And not be afraid to stay after 5 o’clock at night or 9 o’clock or 10 o’clock because litigation practice isn’t a 9 to 5 job. So if you start with someone whose got raw intellect, who can think outside the box and whose got grit and can stand up to the bullies that’s the combination you’re looking for.
Trial Guides: How do you deal with the stress of a contingency fee-based practice when you’re starting out?
Mark: When you’re just starting everything is stressful. It can be a phone call from a client, it can be trying to get the cashflow to work. It’s trying to understand whether or not you you’ve got a real case. Until you’ve taken the bullets and have been in the mine fields it’s really hard to know what you’re getting into. Good new lawyers coming out of school get it. They get that there are mine fields out there and what they do is find the people they trust and talk to them. The nest way to handle the stress is find out that you are not alone and learn the tools, the weapons. That’s the key to the 30(b)(6) book. There is a weapon there that is been tried, it’s been true and it can get you through that landmine you didn’t’ think you could get through.
Trial Guides: Do you have any advice on growing a law firm?
Mark: Be careful. You have to make some early decisions on do you want a large firm, a small firm, or a medium firm. The larger the firm you have, the more you spread the cost and the risk over a number of people. At the same time the larger the firm, the more personalities you have to deal with, the more HR issues, the more cash flow issues. So you have to dig deep into your own heart and decide what is it you want. Do you want an army that’s all part of your team? Do you want to partner with people just on cases? Or are you a lone wolf? All of these are right, you just have to find what’s right for you.
Trial Guides: How do you pickup and regroup after an unsuccessful case?
Mark: Any lawyers who says they’ve never lost a case either doesn’t try cases or are liars. I’ve lost cases that never dreamed in a million years I could lose. I’ve won cases that it was shocking to me that the jury believed in my cause. A lot of lawyers learn a case and all they want to do is complain about the judge or the jury or the media. I don’t see it that way. I look back and say what is it that I could have done different. Why is it that they didn’t understand what I was saying. There’s a piece missing here and what role did I play in it and how am I going to do it differently. So, after more trials than I even care to think about I’ve learned a lot of things along the way. And you learn a lot more from your losses than your wins and that what makes you great.
Trial Guides: What advice would you give new trial lawyers?
Mark: Believe in yourself. Above anything, work hard, trust your instincts, don’t be afraid, you may get bloody, but you will survive.
Trial Guides: Which Trial Guides products have you used and you’d recommend?
Mark: There are a lot of great Trial Guides products and I’ve read most of them. I make everyone in my office read Advanced Deposition Strategies and Practice at least once a year, myself included. Rules of the Road is a great book to start thinking in terms of what are the constructs, what are the rules of our society what does a jury expect people to do. When we focus group people always say, “What were the rules, did they break the rules.” Carl Bettinger’s book Twelve Heroes spectacular. It gives you this whole philosophical approach to storytelling with the hero centric story and understanding you are not that important. In the scheme of things, it’s not the defendant or the client, it’s the jurors. The jurors are the heroes who’ve been asked to save the day and make the world a better place for everyone else.
Trial Guides: How did you choose Trial Guides as a publisher for your work
Mark: Trial Guides has done an extraordinary job of assembling some really innovative minds. People who think outside of the box and at the same time look at what reality is What is happening when people communicate. Communication is what litigation in trial is all about. I was moved by Trial Guides drawing together all of these really brilliant people and writing the books in a way that everyone can understand and getting them out to them. They’re a smaller publisher, their customers aren’t just statistics. They’re all people just like the authors, out there trying to fight it out in the trench every day sometimes winning big, sometimes licking their wounds. And they all seem to hang together. I’m a David versus Goliath kind of guy.
Trial Guides: Would you recommend Trial Guides as a publisher to other authors?
Mark: Yeah, I would recommend Trial Guides as a publisher to other authors. They take the time to work with you, allow you your space to develop your own ideas. And at the same time, help you keep your eye on the ball. If you want to deal with a smaller company rather than a giant publishing house, it’s worth looking at.
Trial Guides: Do you have any final thoughts?
Mark: One of the things that really gets me is the obstruction of litigation. It made me feel helpless as a new lawyer and even as a seasoned lawyer. When I was a younger lawyer, some of the great took the time to talk to me and share their thoughts and helped empower me to move forward and I want to recognize all of them for standing with a young lawyer, helping me to be strong. Helped me understand that you can do it and what you’re doing is the right thing. What I’m trying to do with this book is give back some of the power I learned from some of the greats.