Introduction to Depositions:
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As
many practitioners know, and perhaps have learned the hard way, a deposition (or
as some New York attorneys call it, an “EBT”) can make or break your case. This
article will highlight the basic framework to be used in some common cases:
premises, motor-vehicle, products liability and, medical malpractice. Since
each case is fact-specific, this article is meant to be instructive, but not
necessarily all inclusive.
Before
arriving at the deposition, you must be intimately familiar with your case in
order to make the most of this critical pre-trial discovery tool. In addition
to being intimately familiar with all aspects of the file, including: the
summons, complaint, answers,
discovery demands, bill of particular(s), and medical records, it is equally
imperative to make sure your client, and any witnesses being deposed on your
client’s behalf, are adequately prepared. This seemingly obvious aspect is
often underestimated, or worse, overlooked by many lawyers.
I. Premises
Cases:
1. Background
Information:
a) Name, address,
age
b) Employment history, educational background, and owner
information (including the names of any tenants if a 2 or 3 family home, or any
managing agents or homeowners’ associations if an apartment or condominium, respectively), and length of
time owned
c) Training received, if so, when, how long, by whom,
and duties of witness
2. Residential/Commercial
Premises:
a) Detailed Description Of The Accident
Location:
i) Number
of floors
ii) Tenants
iii) Leases
in effect
b.
In Sidewalk Cases, Inquire About:
i) Responsibility
for maintenance of area in question
ii)
Obstructions
iii)
Defects, if so,
how long present, repairs
iv)
Ask about any
prior complaints, if so, to whom,
and when made
v)
Special Use
situations (driveways, outside dining, etc)
vi)
Poles, signs or
utility boxes
3. The
Accident:
i)
Date
of accident
ii)
Witnesses.
(Eye-witnesses or post accident)
iii)
Persons
with personal knowledge of the
accident or location
iv)
Post-accident
investigation and/or repairs, if so, by whom and when made? Any records
generated?
v)
Ascertain if any
pictures were taken before or after the accident
vi)
Insurance
information, including whether insurance was in effect on the accident date
vii)
Relevant
maintenance and repair history
viii)
Names and
address of any contractors and/or
subcontractors
ix)
Paperwork: Prior
written notice (complaints), work order and/or maintenance records relating to
pre-/post- accident repairs
II.
Motor-Vehicle
Cases:
1.
Witness
Pedigree Information:
i)
Name, address,
date of birth, social security number,
employment
history, and marital status (especially if there derivative claim)
ii)
Driver Training/Licensures:
a.
Valid License
b.
Specialized
training
c.
Employment
history relating to driver training
d.
Ownership information
e.
Maintenance/service
history
2.
Accident
Date:
i)
Where and when
did you first enter vehicle?
ii)
Where were you
coming from and going to?
iii)
Route taken/Familiar
with route?
iv)
How long in car
before accident (time, speed and distance)
v)
Problems with
vehicle before accident? ABS equipped brakes?
vi)
Distractions:
phone, texting, radio, using GPS, eating/drinking. smoking, talking to any
passengers, road condition, construction?
vii)
Any alcohol
drugs taken 24 hours before accident?
viii)
Weather: rain, snow, windshield wipers on,
headlights on (automatic/manual)
3.
Accident Scene:
i)
Generally describe
accident scene
ii)
Route taken, stops
along the way, where, and how long
iii)
When did you
first see the accident scene and other vehicle(s), [time and distance]
iv)
Rate of speed at
impact
v)
Highest rate of
speed before impact, and how long were you traveling at that rate before impact
vi)
Description of road:
curved, straight, uphill/downhill, obstructions, number of lanes in each direction, any traffic control
devices, roadway markings,
lighting?
vii)
Did you apply
brakes? How? When (time and distance), skid marks, did you hear screeching
brakes or horns?
viii)
Impact: soft,
medium, hard. Number of impacts, point of impact with other vehicle, where did
vehicle come to a rest? Did your body make contact with any portion of interior?
(for plaintiff’s)
ix)
Did you exit
vehicle? Speak to other drivers,
witnesses, police, EMS?
x)
Police reports
taken? What agency(s) created them?
xi)
Did you observe
the plaintiff after the accident? If so, what did you observe?
III Products
Labiality Cases:
As in premises liability and motor vehicle cases, the
deposition(s) in a products liability case are also the most important part of
the case. As such, it is critical that a knowledgeable witness be
produced for the deposition, Generally, many companies usually produce a person
who often testifies in these cases such as a safety or consulting engineer. Often
times these witnesses are not the witness produced at trial, therefore it is
imperative to make the most of the deposition since you may be afforded another chance to depose the
witness or question him/her at trial.
1.
Papers/Documentary
Evidence:
i)
Question witness
regarding design and testing procedures
ii)
Get details as
to test samples; random or universal testing
iii)
Research and
development procedures
iv)
Prior complaints
with product to establish prior notice
v)
Any operation or
other manuals prepared?
vi)
Documentation
regarding any alternatives tested
vii)
Details on
patent application process (goes to notice)
viii)
Details
regarding safety procedures at facility
ix)
Try to obtain
information from defendant’s competitors regarding defendant’s methods/procedures
x)
Contact other
plaintiff’s counsel to obtain information necessary for the deposition
xi)
Question witness regarding prior lawsuits, recalls, prior
complaints, and warnings on machine/device in question
IV. Medical
Malpractice:
Initially,
this is a very basic outline, which needs to be modified on a case-by-case
basis. Also note, that the
direction of each case will be dictated by the records themselves and the
advice of your expert witness. The heart of any medical malpractice case is the
plaintiff’s medical records, and the hospital and doctor records/notes. Know
them cold!
1.
Background
Information:
a)
Name
b)
Age
c)
Address
d)
Date of birth
e)
Social Security
number
f)
Maiden name.
Alias
g)
Employment history, and marital status
(especially if there derivative claim)
2.
Office Visits: (repeat as necessary for each visit):
a.
Any prior
dealings with plaintiff?
b.
First visit to
doctor
c.
First course of
treatment
d.
How did you come
to see the plaintiff initially?
e.
Did you have
material available for the first visit?
f.
Did you obtain the
patient’s History?
g.
Did you review
the plaintiff’s History/chart?
h.
Would it be good
and accepted practice NOT to review the patient’s History?
i.
What was your
clinical impression at the first meeting?
j.
Did your
impression change, if so, based on?
3.
Did You Do
Anything For The Plaintiff?
a.
Diagnostic
testing ordered, x rays etc
b.
Where and how
taken
c.
Did you interpret
them?
d.
Diagnosis
e.
Factors in
formulating diagnosis
f.
Was there a differential
diagnosis?
g.
Did anything
influence your diagnosis?
h.
Did you rule
anything out?
i.
Did your
prescribe a course of treatment?
j.
What is your current
clinical impression?
k.
Was a consultation
considered? If no, why not?
l.
Were your
impressions discussed with plaintiff’s treating physicians?
m. Sum and substance of any conversations, with whom and
when?
n.
Course of
treatment discussed, what was decided?
o.
Did you play a
role in follow up treatment?
If no diagnosis, was follow-up testing indicated?
If no diagnosis, was follow-up testing indicated?
p.
Next contact
with the plaintiff
4.
Education
a.
College
b.
Medical School
c.
Residency
d.
Internship
e.
Continuing
Medical Education (CME)
f.
Degrees earned
g.
Board
Certifications
h.
Publications
i.
Special
positions; chief of any departments
j.
Hospital
affiliations
If you suffered an injury in
the Bronx, Brooklyn, Westchester, or Long Island, give our accident lawyers a
call at 800-893-9645 to set up your confidential consultation.
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