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How to Avoid Bad Questions and Answers

Helping your client refresh their memory regarding facts pertinent to the case is just the beginning of your job in preparing your client to testify at their deposition. You also need prepare your client for problem areas of questioning.

20110903-043224.jpgThe following is a list of problem questions and how to deal with them during the course of a deposition of your client:

. 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?

. Summary Questions
Another classic approach to the compound question is to summarize a client’s prior testimony, and then ask at the tail end a yes or no question. Clients 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 client on these problems as well, in case you fall asleep at the switch.

. Questions in Absolute Terms
Questions cast in absolute terms can also be a problem. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your client 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 client 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 a client and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.

. 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 client 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.

. Exaggerations
Do not exaggerate: Don’t take a good case, try to make it a great case, and turn it into a bad case. The first rule I learned when I began doing defense work from the senior partner at the firm I was at was to let a Plaintiff exaggerate all they want. There is nothing that more quickly undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration. This is why reviewing a client’s medical records with the client in advance is imperative.

. Opinions
Be careful of giving opinions, as they are the doorway to guess and speculation on the part of a client. If a client starts to guess and speculate, the next thing you know, they are giving inconsistent answers or violating the rules of physics. As Sgt. Friday in Dragnet said, “Just the facts, ma’am, just the facts.” This should be your mantra to your client as well. Stay factual! Do not guess, and do not speculate. You do not have to have an answer to every question. Remember you are a “human being, not a computer.”

. “Would It Be Fair to Say…”
Usually when an attorney begins a question with, “would it be fair,” it is absolutely unfair to your client. Anytime a client hears a question prefaced with such a line, they should make sure they in fact agree with the proposition set forth in the question.

. Narrative Questions
Defense attorneys will often ask, “Tell me everything that’s still a problem.” The difficulty with this question is that a client can forget important details of their injuries or losses when asked to simply list everything under the sun without any other prompting. While you can object to the form of the question on the grounds that it calls for a narrative, your client ultimately will probably have to answer it. It is important to review in advance all areas of losses and damages with the client to ensure that that do not forget anything. Your client should be prepared to answer at the end of their list that that’s all they can recall at the moment. This allows you to clean the topic up on cross, or later through the signature process where your client is allowed to review their deposition before it is sealed.

. “How Much Is Your Case Worth?”
This is a question that I have used with Plaintiffs, and oftentimes catches them totally off guard. Ultimately, I think the best response is to say that I’m not an expert in evaluating these sort of things, and am trusting my attorney’s best judgment, as well as that of the jury. To actually provide a dollar amount can make your client appear greedy, and be used to prove motive for secondary gain.

. Other Trick Questions
Another classic question to unnerve a witness or a client that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a client will think that they’ve done something wrong by discussing their testimony in advance. The client 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 clients, as well as witnesses, in order to properly prepare for trial. Obviously, your client has talked to you, and such information is privileged. If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your client seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your client has discussed the case with other persons, you want to identify this well in advance of the deposition, so that you don’t have to deal with needless prior inconsistent statements. Registered & Protected

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

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