Deposition Preparation Begins Long Before the Deposition

An important aspect of your case is your client’s deposition. A case’s value turns on the credibility and likeability of your client. As a former insurance defense attorney, the most important aspect to the evaluation of a case’s value was the deposition of the Plaintiff. Oftentimes, insurance companies are reluctant to make any significant offers of settlement prior to the client being deposed. Your client’s credibility impacts what value, if any, a jury will attribute to subjective complaints. Preparation is not something that should be overlooked or left to chance.


. Obtain Historical Medical Records
The prior medical history of a Plaintiff can seriously undermine a case’s value and the client’s credibility. It is important to obtain all significant prior medical history from a client. If you don’t, the defense attorney will. Without a full medical history, a client is prone to make misstatements and create fertile ground for purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to address and deal with any potential weaknesses you might have as a result of any pre-existing medical condition or prior injury. While it is tempting to limit your pretrial production of records to those postdating the injury, it is better to do the investigation yourself ahead of time.

. Prepare a Medical Chronology
Clients are often ill-equipped based upon education and background to review and analyze their own medical records. By providing your client with a detailed medical chronology ahead of their deposition, they have an opportunity to refresh their memory regarding past illnesses and injuries, and avoid making misstatements at the time of their deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your client, you can address responses to the resolution of prior symptoms and/or problems.

. Review Criminal and Traffic Citation History
As the credibility of your client is a paramount concern, it is important to investigate your client’s own criminal and/or traffic citation history. Under Indiana Rule of Evidence 609, crimes of dishonesty or those which are inherently dangerous can be used for purposes of impeachment at trial. Likewise, evidence of prior traffic citations can help identify prior auto accidents and other relevant information. The failure to truthfully admit such information leads to easy impeachment material, which can undermine your case’s value.

. Prior Lawsuits and Claims
It is important to promptly identify any prior litigation your client may have been involved in as a litigant. The prior proceedings can create a ready resource of impeachment through the use of pleadings, discovery responses and depositions. Failure to identify such easily verifiable information can also make it appear as if your client is a liar. The prior litigation also provides background information on your client, as well as claims of pre-existing injuries.

. Prior Motor Vehicle Accidents
This is another area which is easily verified and can provide fertile grounds for purposes of impeachment, as well as help a defense attorney develop alternative causes for your client’s injury. Oftentimes, clients will forget more minor injuries and motor vehicle accidents, to their detriment. This lack of recollection by your client will be interpreted as an outright obfuscation of the truth. There is nothing worse or more expensive than finding out for the first time at trial that your client has failed to disclose that which is undeniable. A source that can be utilized to find prior accident in the Indianapolis metropolitan area is:

. Review Your Client’s Answers to Interrogatories and Discovery Responses for Accuracy and Completeness Prior to the Deposition

Assuming you have followed through on the other matters outlined above, you want to double-check your client’s answers to Interrogatories prior to the deposition so that you can identify and correct any mistakes prior to the time your client is deposed. If there are any inconsistencies or mistakes, and you bring them forward, it takes the sting out of the incorrect answer prior to the deposition and verifies that your client is interested in the truth. Two inconsistent statements under oath as to any material matter is arguably perjury.

. Witness Statements
Review any other witness’ statements with your client to avoid needless inconsistencies. If there are inconsistencies, identify those, and make sure that you have a plausible explanation for the discrepancies.

. Don’t Violate the Laws of Physics
A favorite tactic of a defense attorney is to detail a client and show that their version of the events is physically impossible for one reason or another. Everyone has probably heard the story of how Abraham Lincoln won an acquittal as a result of having a witness for the state indicate that they were able to see the defendant in the moonlight, only to later learn that there was a new moon that night.

Likewise, in an auto accident, defense attorneys will often ask how far away a vehicle was when the Plaintiff began some maneuver. They will then ask the Plaintiff how long it took them to do the maneuver, and see if the answers are plausible and can be consistent. For example, if your client says that the other vehicle was ¼ mile away when they began their turn, and that they completed their turn in 1-2 seconds when the collision occurred, they now have made the offending driver the fastest qualifier in Indy race car history. It is important to go through the details with your client ahead of time, and make sure their estimates of time, speed and distance are internally consistent. In this regard, it is important to remember a basic formula: Miles per hour x 1.47 = feet per second

Other areas to check which are readily verifiable are things such as the weather conditions at the time of the accident, the physical locations of objects and buildings, and when applicable, the duration of traffic lights.

. Have Your Client Revisit the Scene of the Accident
As noted above, it is important to make sure that both you and your client have a clear understanding of the physical layout of the accident scene. If at all possible, you should travel to the scene of the accident with your client and review the events and location where the events unfolded. If this is not possible, an acceptable substitute is to conduct a virtual tour of the accident scene utilizing Google Maps and its aerial and street views.

I will dicuss other aspects of deposition preparation in upcoming posts. Registered & Protected

About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on September 3, 2011, in Trial Advocacy and tagged , . Bookmark the permalink. Leave a comment.

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