Category Archives: dos and don’ts
I never take on a new client without sharing the quote above with them. The most valuable component of any personal injury case is the client’s credibility… period, end of case. If you exaggerate or stretch your claim beyond the bounds of your evidence, then your client will lose credibility, devalue your client’s claim and lose their case.
The number one tactic most defense attorneys use to undermine a personal injury case, is to encourage the injured client to overstate or exaggerate their claim while under oath in a deposition or to omit their history of a past injury to the same portion of the body or to hide a prior collision or claim. The client thinks, “Why tell them, they may never find out.” However, they almost always do. The defense argues, “Why did your client do these things (they said they couldn’t do)? Simple… because they don’t have a legitimate claim.”
Honesty is not just the best moral policy, it is also the best economic policy when it comes to the value of a personal injury case.
So don’t forget the quote and don’t let your client forget it either.
1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.
2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.
3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial
4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before you ever hired your expert.
5. 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.
6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding past illnesses and injuries, and avoid making misstatements at the time of the deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your expert, you can address responses to the resolution of prior symptoms and/or problems.
7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. 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 expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.
8. Compound Questions – Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your expert can identify an undisclosed predicate to a question which makes it compound in case you fail to object.
9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.
10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the expert needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving an expert and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your expert avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.
13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their behavior and demeanor. By emphasizing this point with your expert, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert to remain calm and composed. By doing this, the deposition will typically be shorter. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be cautioned to avoid any sarcasm or insincere solicitous comments.
14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a witness will think that they’ve done something wrong by discussing their testimony in advance. The expert should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their witnesses, in order to properly prepare for trial or a deposition. Discussions with counsel are privileged as work product because they are communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your expert has discussed the case with other persons, you want to identify this well in advance of the deposition. Some experts, especially teaching experts, will discuss pending cases during their lectures. I can recall one case where this occurred and the expert was impeached at trial with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.
15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
17. Reliance on materials outside of the court record. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485, 487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332, 335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury. Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).
19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation!
Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”
Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:
Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which objections must be made or waived:
(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition. [Emphasis Added].
The Rules should be abided by during the course of the deposition.
Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.
Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):
1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.
2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).
3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hall, supra.
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.
8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere, 182 F.R.D. 614 (D. Nev. 1998).
10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.
There are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility. Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable. A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:
1. Review any relevant documents, especially statements or depositions.
2. Review any exhibits with the witness and make sure they can authenticate them properly.
3.G o back to the scene of the incident at issue and take in all the details. The witness should try to visualize what occurred.
4. Dress appropriately in business attire or a suit if proper. Do not dress in a flashy manner.
5. The witness should be advised of any exclusion/separation orders or motions in limine which have been granted. Regardless the witness should stay outside of the courtroom until called to testify and should refrain from speaking with other witnesses or strangers who might be a potential juror or witness. Tell the witness they are not allowed to talk with anyone about what has happened in the courtroom.
6. If asked if you spoke to anyone, be honest and say yes. Advise the witness that there is nothing wrong with speaking with you before testifying and if he is asked about it there is nothing to fear. This is part of the preparation process so that the jury’s time is not wasted and evidence can come in an orderly fashion. Emphasize the need to be truthful and accurate and tell the witness if they are asked that this is the primary purpose in meeting with them in advance.
7. Always be a lady or gentlemen no matter how rude the other attorney might be.
8. Conduct yourself in a dignified manner. No chewing gum or tobacco in the courtroom. Be mindful that once on the grounds you never know who might be watching. This includes attorneys, jurors or the judge.
9. Take the stand and clearly accept your oath in a calm fashion.
10. Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.
11. Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.
12. Stay factual and avoid exaggerating, guessing or giving opinions where facts will do the job. Stay away from terms such as “I believe” or “I think” as they indicate that you are guessing. These terms create “milk toast” answers of little evidentiary value and are dangerous. If you don’t know the answer or cannot recall then simply say so. Again, don’t guess or speculate.
13. Do not memorize your testimony. Pat answers lack the ring of authenticity and candor.
14. Listen carefully to the question and do not answer a question that you do not understand or which has more than one correct answer.
15. Do not quarrel or argue with the other attorney no matter what.
16. Give a direct answer to a direct question. If it can be answered yes or no, then answer it in that fashion. Do not try and explain the answer if an explanation is not asked for by the other attorney unless an explanation is truly required. Before doing so ask the attorney politely, “May I explain my answer?” If he or the judge says no move on and wait for the next question to be asked.
17. Be careful of absolute terms and questions to “box” you in as a witness. This includes question that use language such as “So that is all that happened?”, “You are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ”That is all I can recall,” if you forgot something. The answer, “I don’t know” means it has never been in your brain, while “I don’t recall” means the information sought has been in your consciousness, but you are unable to retrieve the information at the moment.
18. Cover with the witness the foundation for “refreshing recollection” under IRE 612 and “past recollection recorded” under IRE 803(5)
19. Don’t try to sneak in answer. If there is an objection stop immediately until the Court has ruled and you have been either instructed to move ahead or a different question is asked.
20. Don’t play attorney and object to questions yourself. That is the role of the attorneys, not the witness. That being said, you always have the right to understand the question being asked.
21. If you have received a subpoena and witness fee, know that this is perfectly appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I received a witness fee for my time. My honesty is not for sale.”
22. If you are on the stand for an extended period and are tired or need to use the restroom, ask for a break. However, do not speak with anyone during the break. This is inappropriate and could lead to claims or arguments that you were being coached.
23. Most importantly: always testify truthfully and accurately.
What are some common “Dos” and “Don’ts” when it comes to closing argument? Here is a list I put together:
- Speak loud and clearly.
- Be confident.
- Vary your tone and location as you move from point to point.
- Be organized.
- Begin and end on a high note so your points will be remembered.
- Help the Jury with the instructions and form of verdicts.
- Keep track of your time.
- Try out your arguments on non-lawyers to insure your arguments are persuasive and understandable.
- Begin working on your closing argument on day one. It will inform your discovery, preparation and instructions allowing you to develop a cohesive theme from day one.
- Be yourself.
- Be sincere and honest and the jury will trust you as a guide.
- Deal with your problems head-on before your opponent has a chance to address them.
- Use your exhibits and excerpts of key testimony from the witnesses.
- Use PowerPoint, blowups of testimony, or charts to assist the jury.
- Use analogies, quotes and vivid descriptions to keep them interested.
- Save your best “zingers” and analogies for rebuttal if you know the defense will have to address the matter in their argument.
- Judiciously use repetition as tool for emphasizing significant points.
- Have a clear call to action at the very end of your closing.
- Don’t state your own personal opinion about the justness of your cause.
- Don’t misstate the evidence or law.
- Don’t mention evidence outside of the record.
- Don’t berate or personally attack the other lawyer to the Court.
- Don’t tell the jury to ignore the law.
- Don’t make a “Golden Rule” appeal to the jury and ask them to decide the case like they would want to be treated if they were in your client’s position.
- Don’t exceed the time allotted by the Court.
- Don’t personally vouch for a witness or your client.
- Don’t appeal to bias or prejudice.
- Don’t complain about the Court’s rulings or its treatment of you and your client.
- Don’t attempt to shift the burden of proof to the other side when you have the burden of persuasion on a legal claim or defense.
- Don’t implicate a defendant’s right to remain silent in a criminal case.
- Don’t insinuate that it is a lawyer made case without first obtaining approval of the Court.
- Don’t violate any orders granting motions in limine. (Can you say mistrial?)
- Don’t bore the jury or beat a dead horse.
- Don’t ask the jury to send a message with their verdict unless you have a punitive damage claim. The purpose of the verdict in the typical tort case is to fairly compensate, not send a message.
- Don’t wear any distracting clothing or jewelry.