By Anthony H. Gair
Preparing the plaintiff for deposition in a personal injury action is perhaps the most neglected element in personal injury cases. Before the plaintiff’s deposition is conducted, the defendant’s counsel has been served with a Bill of Particulars, has obtained all available medical records and police reports and has visited the scene. That information will be used during the plaintiff’s deposition. How do you prepare your plaintiff. Some basic rules are worth remembering.
Rule 1. – Know Your Plaintiff
Your plaintiff’s knowledge and his ability to testify as to the occurrence will often be directly related to his status regarding the claim made. In the case of an automobile accident, the plaintiff will be either a driver, passenger or pedestrian.
Unless it is a case where proof of a prima facie case will come from other than the plaintiff (and, in most cases, even if it will), the plaintiff must be prepared to testify at least sufficiently to make out a prima facie case.
Your client must be as thoroughly prepared as possible. This means taking the plaintiff to the scene of the accident prior to his deposition if possible. It means making certain that the plaintiff knows the basic facts and has been ingrained to repeat them in response to any question concerning them. It means familiarizing your plaintiff with concepts of time, space and direction. Most importantly, it means preparing your plaintiff with the same degree of diligence and concern as you would if he or she were about to testify at trial rather than at deposition.
Do not try to create abilities to answer which simply are not there. Train, teach and educate on the essential elements of the case. Don’t worry about the minor details. If you concentrate on those, your plaintiff may get the minutiae correct and blow the case out of the water by not responding properly to the important questions.
Rule 2. – “I Don’t Know”/”I Don’t Remember”
For reasons most likely inbred in us during our elementary school education, most people, including injured plaintiffs, seem to have an overwhelming desire to answer whatever questions might be asked of them, whether they know the answer or not. You must teach the plaintiff the concept of being able to respond “I don’t know” when such is the case or “I don’t remember”, when such is the case. Of course, this does not mean that the client should be asserting that he or she does not know or remember if he or she were injured. It does, however, mean that the plaintiff should be trained not to throw out an answer simply because a question is asked. And the plaintiff must be taught the difference between not remembering and not knowing. This is particularly important in cases where memory might be refreshed following a deposition. Memory can be refreshed; knowledge cannot be. The basic rule is that the plaintiff must be told not to guess if he doesn’t know the answer to a question. It must be explained to the plaintiff that the deposition will be used to impeach him at the time of trial.
Rule 3. – An Adversary Is Not A Buddy
Explain to the plaintiff that the attorney who is doing the questioning is not his best friend. That smiling amicable, nice man or woman on the other side of the table, regardless of the charm and warmth shown during the deposition, will not invite your client to dinner that night and is there only to destroy his case. You know that. Remind your client of it. Also, we work in a small community and know many of our adversaries. If you want to have a friendly chat with an old friend do it after the deposition and never in front of the plaintiff.
Rule 4. – Do Not Have Memory Overly Refined
Juries are inherently suspicious of the plaintiff who recalls with specificity the number of feet between the place of the accident and the crosswalk; the day and dates of each visit to each doctor before and after events in question. Testimony that is simply too precise becomes unbelievable. The classic example is that of the cross-examination by Max Steur, one of the great trial lawyers of a key prosecution witness, Kate Alterman, in the Triangle Factory Shirtwaist Factory Fire Trial. Steuer asked Alterman on cross to repeat over and over her testimony. Each time it was, her words were similar, giving the impression she had been coached to memorize her story. A defense verdict resulted.
Rule 5. – Beat Your Plaintiff On The Head Until He Behaves
Nothing is worse – from either the plaintiff’s or defendant’s point of view – than having a client who becomes a wise guy at deposition. We have all been there when the plaintiff being deposed as to what happened on a particular eventful day responds “hey man, I can’t remember what I ate for breakfast yesterday.” You are entitled to have this happen to you only once. If it happens twice, it’s your own fault. The client must be prepared to not do this prior to the deposition. Many people answer stating “to tell you the truth” or “to be honest with you” as if all else they say is a lie. Teach your plaintiff not to answer in this manner.
Rule 6. – Try Not To Show The Plaintiff Anything
Keep in mind that virtually anything that you show a plaintiff in preparation for deposition might be discoverable. Thus, if your plaintiff has, prior to retaining you, written out a lengthy description of the events and occurrences about which he is bringing suit, and he reviews that document to refresh his recollection in preparation for his deposition, it will very likely be discoverable by the defendant. It is difficult to imagine any excuse for permitting this to occur. Similarly, you should be reluctant to show the injured plaintiff any document which will elicit an affirmative response to the inevitable question of “Did you look at anything or review any documents or were you shown anything in preparation for your deposition? If you must use photographs, or if you anticipate that the defendant will be utilizing photographs during the examination of your plaintiff, make sure that you go through the photographs with him very carefully prior to deposition.
Photographs can be deceptive. They are two-dimensional. Perspective is not shown properly. Scenes change. Marking the location where an impact occurred or where the plaintiff first observed the defendant’s vehicle can be fatal. It is your responsibility to go over the scene photographs in detail with the plaintiff and question him as the defense attorney will and as you will question the defendant.
Rule 7. – Review All Documents
Merely because you do not show the plaintiff a document does not mean that you may not read from it or discuss it or go through its contents with the injured plaintiff. This is particularly so with any accident reports prepared or filed by your plaintiff, any histories given by your plaintiff to ambulance drivers, physicians or emergency rooms or after admission to a hospital, statements which the police have indicated to you were made by your plaintiff and statements which any witnesses have indicated may have been made by him. In this regard it is mandatory that you review the hospital records in detail for statements made by the plaintiff as well as indications of expression of pain.
Rule 8. – Visit The Scene
Unless the scene has disappeared or changed so drastically as to make a visit useless, again, if possible, visit the scene to refresh his recollection and to get a better bearing on time, distances, car lengths, etc.
Plaintiffs who do not visit scenes have themselves driving west on a street which is one way east, they have themselves passing a broken white line when the street indicates a double yellow line that has been there for 25 years; they have themselves able to see only sixty feet ahead because of a “curve” when visibility is almost unimpeded. If you can’t visit the scene go over scene photos in detail with the plaintiff.
Rule 9. – Teach Your Client Times and Distances
“I can’t believe my plaintiff just said that it was forty-five seconds from the time he saw the other car approaching the intersection to the time of the impact.” Sound familiar? Most people have absolutely no idea how long a second is or two seconds is or five seconds. Most people have no idea how wide or long or high a car is. Most people have no idea that a car traveling 30 miles per hour travels 45 feet per second and are stunned when you tell them that a vehicle travels one and one-half times its speed in one second.
Rule 10. – Remind Your Client That People Are Charged With Seeing That Which Was There To Be Seen.
“I never saw the other guy” is one of the most damaging statements that comes from the mouth of the injured plaintiff during the deposition. Unless “the other guy” dropped out of the sky, it is almost impossible to imagine a situation in which your client, had he been looking, would not have seen something – even if for a split second – before the incident giving rise to the occurrence happened.
Rule 11. – Know The Injuries and Their Permanent Effects
Every experienced defendant’s lawyer will ask the plaintiff to set forth all complaints of injury which the plaintiff claims arose from the defendant’s actions. The plaintiff must be prepared to testify as to all physical, emotional, mental pain and suffering and financial loss. Since the last question will be “Is their anything else which you can tell us is bothering you today or has bothered you in the past as a result of the incident which you are suing the defendant for here”, anything which is thought about after the deposition has been signed and returned is not going to look wonderful at trial. Preparation here is the key. Learn from the client that which he used to do and can no longer do, that which he wished to do and now cannot do, and that which bothers him even on a relatively infrequent basis.
In death actions, where pecuniary loss and contribution to the household are essential items of recovery, the widow or child who testifies must be prepared to testify as to the decedent’s spending habits, his or her contributions to the household, both financially and by way of care and guidance and support, and should be prepared to explain how the decedent kept little for himself or herself while devoting most of his or her income, time and efforts to the maintenance of the household.
Rule 12. – Know The Plaintiff’s Background
If your plaintiff was in the Armed Services, find out about it and find out the circumstances of the separation from service and whether there is any medical background. If your plaintiff had any prior hospitalizations or made any prior claims for personal injury, you must know this. The defendant will learn it. If your client has any records of convictions of crime, or has otherwise been found guilty of some publicly known incident involving moral turpitude, you must know this as well.
Ingrain in your plaintiff the concept of pausing and thinking before answering, never volunteering, listening carefully to the question and never, never, lying. These are self-explanatory. Plaintiffs should not volunteer more than they are asked. You must teach the plaintiff to listen to the question and give only that information called for by the question. Explain that long unnecessary answers not responsive to the question will only lead to more questions. Plaintiffs should listen carefully to the questions. Plaintiffs should pause before blurting out an answer. And plaintiffs must be taught that perjury is a crime. Explain to the plaintiff that they may have been under surveillance and that such will be of no consequence as long as they tell the truth.
Rule 14. – When to Prepare the Plaintiff
The time to prepare the plaintiff, or the defendant, for that matter, is not an hour before the deposition. To properly prepare a plaintiff for deposition can and should take hours. If you were preparing a plaintiff to testify at trial, you would never do so an hour before he took the stand. The same is true for his deposition. You should meet with the plaintiff at least a day or two prior to the deposition. Before the meeting you must have thoroughly reviewed your file. Be prepared to speak with the plaintiff about two areas; (1) The deposition process itself including the above rules and (2) question the plaintiff as if you were the defendant’s attorney.
This article is adopted from one by my former partner, David Miller who taught me so much.