Trial Lawyer Resource Center

     Too many personal injury lawyers view properly preparing their clients for their depositions as an unskilled part of their work. In terms of both future settlement opportunities and likelihood of success at trial, your client’s deposition is the single biggest event. This blog post is meant to give some thoughts on thorough preparation of clients for their depositions. I’m going to save the obvious, ‘listen to the question’, ‘answer the question posed’, ‘don’t guess’, etc., type of advice. Instead, I’m going to offer some random thoughts on what I believe personal injury lawyers need to place more focus on in getting their clients ready for deposition

1. Remember the goals of the deposition. These are twofold: (1) do no harm, and (2) make a good impression on the defense lawyer. The most important goal is clearly to make sure your client will not give testimony that will render the client ineffective at trial. The secondary, but also important goal, is to make a quality impression. Many defense personal attorneys believe that this presents a real opportunity to better appreciate who the Plaintiff really is and whether the Plaintiff will make a quality impression in front of the jury as a person entitled to significant compensation for their injuries. If the injury victim does not appear honest and sympathetic at his/her deposition, most defense lawyers realize the same will hold true at trial. Rarely does a client present a better impression at trial. Conversely, if the client is good, honest and sympathetic, the case often becomes a lawsuit, because computer programs (like Colossus), which are used to calculate damages, cannot measure real human suffering. Good defense lawyers know that juries can and do appreciate human suffering, and they include this in the evaluation to the insurance adjuster.

2. Articulate the goals. Explain the goals of the deposition to your client and underscore the importance of the deposition to them. Certainly, it might make the client more nervous, and I’ll touch in on that in a moment. But clients should be made to feel that they have some control over their case, and those who do will take the process seriously.

3. The defense lawyer is not your friend. Remind your client of this. Clients come in to depositions feeling nervous, expecting the defense lawyer to be a monster. When they find the lawyer is a decent man/woman, they often overreact and a lovefest can ensue. You make the problem worse when you are genuinely friends with opposing counsel, and start asking how little Molly’s softball game went the week before.

4. Conversely, while remembering the defense lawyer is not on the client’s side, the client should also know that it is important to be courteous to the insurance company's accident attorney or medical malpractice defense lawyer. Besides their mothers’ motto that it is always a good time for good manners, it is also important because the insurance company's lawyer knows that juries award compensation to injury victims who are good people who are hurt, not angry people who are bitter about their injuries.

5. Tell you clients it is okay to be nervous. Remind them that the defense lawyers (and jurors) see past how nervous the client is, and past all of the distractions, and do get a decent sense of what happened. Tell them not to fight it. (Paradoxically, of course, this relaxes the client anyway.)

6. Equivocate. Tell you client to skip words like “never” and “always.” Make sure the client avoids absolutes when there are really not absolutes. Absolutes just box in the client at trial.

     These are my thoughts. Click on the links if you want to see sample depositions, or other sample discovery.

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Why take a deposition?  To find out what the witness is going to say?  Sure.  But it is just as important to find out what the witness is not going to say, particularly with a witness that is likely to be adverse.  Accordingly, in an auto accident case, you need to establish what the eyewitness saw and heard, what they did not see or hear, and what they think they saw or heard but do not have the factual predicate to draw the conclusions they have drawn.

In auto accident cases, the deposition tactics often revolve around the issue of speed.  In Maryland, Virginia, the District of Columbia, Alabama, and North Carolina, where the draconian contributory negligence laws remain on the books (we are fighting in the legislature this year for comparative negligence in Maryland), speed is always the last resort of defense attorneys who (1) have nothing to argue, or (2) want to argue everything.

If you have an adverse witness on the issue of speed, you obviously have to ask how fast the witness thinks your client was driving and find out what foundation they have for their estimation of speed.  Make sure you conduct complete speed and distance questioning as well.  By complete, I mean full questioning as to how long the witness observed the vehicles traveling, how long it took, and what was the distance covered.  Ask the question in miles, yards, feet, car lengths, etc.  It is rare that anyone other than a well trained police officer can answer consistently time and distance calculations in the first place, much less when they are required to make the same distance measurements using different standards.  If an adverse fact witness offers conflicting testimony as to the speed, it may negate the impact of his/her testimony or give the personal injury attorney grounds to exclude the witness' testimony at trial. 

To see sample depositions in auto accident and truck accident cases, click here.

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Over the years we have crafted/borrowed from/added to the spoliation letter my offices sends out in cases involving  tractor trailers. Here you go:

Dear Mr. XXX:

    As you may be aware, my law firm represents XXXXXXXX as a result of personal injuries resulting from an accident which occurred on XXX in XXXX.  We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any matter:

    1.    The tractor and trailer involved in this accident.
   
    2.    Bills of lading for any shipments transported.

    3.    Any oversized permits or other applicable permits or licenses covering the vehicle or load on the day of the accident.

    4.    The daily logs for the day of the accident and the eight day period preceding the accident.

    5.    The daily inspection reports for the day of the accident and the eight day period preceding the accident.

    6.    Daily inspection reports for the tractor and trailer involved in this accident for the day of the accident and the eight day period preceding this accident. 

    7.    Maintenance, inspection, and repair records or work orders on the tractor and the trailer for the day of the accident and for the six month period preceding the accident.

    8.    Annual inspection report for the tractor and trailer covering the date of the accident.

    9.    The complete driver’s qualification file, including but not limited to:
           
        a.    application for employment
        b.     CDL license
        c.    driver’s certification of prior traffic violations
        d.    driver’s certification of prior accidents
        e.    driver’s employment history
        f.    inquiry into driver’s employment history
        g.    pre-employment MVR
        h.    annual MVR
        i.    annual review of driver history
        j.    certification of road test
        k.    medical examiner’s certificate
        l.    drug testing records
        m.    HAZMAT or other training documents

    10.    Photographs of the vehicles involved in this accident or the accident scene.

    11.    Any post-accident alcohol and drug testing results

    12.    Any lease contracts or agreements covering the tractor or trailer involved in this accident.

    13.    Any interchange agreements regarding the tractor or trailer involved in this accident.

    14.    Any data or printout from on-board recording devices, including but not limited to ECM (electronic control module), any on-board computer, tachograph, trip monitor, trip recorder, trip master, or other recording device for the day of the accident and the six month period preceding the accident.

    15.    Any post-accident maintenance, inspection, or repair records or invoices in regard to the tractor and trailer.

    16.    Any weight tickets, fuel receipts, hotel bills, or other records of expenses regarding the driver or the tractor or trailer involved in the collision for the day of the accident and the eight day period preceding the accident.

    17.     Any trip reports or dispatch records regarding the driver or the tractor or trailer involved in this collision for the day of the accident and the eight day period preceding this accident.

    18.    Any e-mails, electronic messages, letters, memos, or other documents concerning this accident. 

    19.    The accident register maintained by the motor carrier as required by federal law for the one year period preceding this accident.

    20.    Any drivers manuals, guidelines, rules or regulations given to drivers. 

    21.    Any reports, memos, notes, logs or other documents evidencing complaints about the driver. 

    22.    Any DOT or PSC reports, memos, notes or correspondence concerning Chip P. Bledsoe or the tractor or trailer involved in this accident.

    In regard to the tractor and trailer involved in this incident, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit.  We specifically request that you make no repairs or adjustments to the tractor or trailer until this inspection is completed.  I must have a response within the next ten (10) days. 

                           

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Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue.

In Cangelosi v. Capasso, No. 03--L--392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation.  She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition,  the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff's care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. "

The court ordered production of the notes, saying that they were not protected by the attorney - client privilege because they were not a communication to an attorney for purposes of securing legal advice.  Nor were they protected by the work product doctrine, because " they do not 'contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.'"

I have been in cases where a nurse or other fact witness went home after the event and made personal notes about what occurred.  The information contained in those notes is often very helpful to the case.

Read the decision here.

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Every now and then, a book comes along that is better than good and just spot on terrific. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability is one of them. I was hearing good things about this book and saw this plug by David Ball:

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Last Summer at the ATLA Convention I met Adam Rosen of JuryTest. Adam  has an interesting business in that he conducts on-line focus groups. I was giving a presentation on in-house focus groups a month later and had a case coming up for mediation, so Adam offered to give me a sample focus group on the same case if I shared the information from our live focus group for him to compare. We had a case with strong damages, but we were concerned about liability. The results were rather interesting. The ‘live’ and ‘online’ focus groups tracked each other much closer than I thought they would. Here are my thoughts regarding on-line focus groups:

Pros

• Fast and Easy to Set up – It took about 5–10 minutes to set up the presentation. I e-mailed Adam two or three pictures and one or two scanned pages of medical records. I then gave a 3–5 minute presentation on the phone.  That’s all it took.
• Fast Results – JuryTest can get the results within 24 hours of when you give them the information.
• Tremendous Breakdown of Results – The results are online in a spreadsheet / pie chart. You can very easily sort by age, income, gender or other demographic considerations. I had never been a big fan of demographics until I saw the breakdown on our case. We had a nearly unanimous consensus on liability except for men over 40 years old making over $50,000 a year, who were only 50/50 for us. Good stuff to know before picking a jury (especially in South Carolina with our limited voir dire).
• Inexpensive – The cost is scaleable based on the number of  jurors you have, but I think you can get 8–12 jurors for about $500. Additional jurors don’t cost that much extra. Call Adam for pricing, I don’t want to put words in his mouth, but it is a very modest fee.

Continue Reading...

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Imagine being able to sit down with one of the best lawyers in the state for 10 minutes of advice. Now multiply that by 100. That’s what the Texas Young Lawyer’s Association did. They took a video production crew around the state for several months, videotaping 10 minute presentations from some of the best lawyers in Texas. Robert Ambrogi describes the project well:

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You once heard that requests for admission are a severely
underutilized tool.  So you tried using them and filed detailed requests in a
case.  Yet you accomplished absolutely nothing because the defendant's
attorney categorically denied virtually every request for admission.  

There are two good tactics to consider when faced with this
typical obstruction.  The first is to propound an alternative interrogatory
upon the defendant which asks the defendant's lawyer to set forth all facts
and evidence upon which the defendant intends to rely upon at trial to
support the defense lawyer's denial of the request for admission.   This
type of interrogatory helps to put defendant's case into a tighter box.
This box tends to be even tighter if you are propounding your discovery at
the beginning of the case.  Most lawyers begin to look creatively at their
case just before trial. Forcing the defendant to take early positions gives you a competitive advantage.

The second tactic to use when faced with nonsensical denials is
to do absolutely nothing at all.  At trial, read the request for
admissions to the jury. The most typical denial used is defendant's denial that the hospital bills and treatment were causally related to the accident. The message the jury gets loud and clear is that Mr./Ms. Defense Counsel is acting very reasonable now but defendant’s lawyers have fought the injured plaintiff at every single turn on every single issue, regardless of the merits of that issue.  This gives the defense attorney an edge in the most critical fight between lawyers in a jury trial: the battle for credibility.

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