September 18, 2008 by David Newdorf
Filed under Lit Tip Of The Week:™ Practical Advice For Litigators
This week’s litigation tip expands on my article, “The Top Ten Killer Deposition Questions,” to provide ideas for basic deposition questions in a personal injury matter.
The most popular articles on this website have to do with depositions, which shows how important this discovery procedure is in today’s civil litigation practice. Based on the most recent California court statistics, between 8 and 12 percent of civil cases filed go to trial. For the other roughly 90 percent of cases that settle or resolve through a dismissal or motion, the deposition might as well be considered the trial.
Defense lawyers typically ask these questions (at least I do when defending a case involving personal injuries), so plaintiff’s lawyers should review this list with their clients during preparation for deposition. Also check out my article on “Preparing Your Client For Deposition.”
- “When did you first realize there was going to be an accident? Tell me how you knew an accident was about to happen.” This is a good opening question to set the stage.
- For trip-and-falls:
- “How did the accident happen? What happened with your foot? Did you trip? Did you slip? Did your foot catch? Did some part of your body twist?”
- “Was there any foreign substance or article on the surface where you fell? Was there anything unusual about the surface where you fell?”
- “How did you land? On what part of your body? Were you face up or face down? Which direction was your head pointed? Which direction were your feet pointed?”
- For motor vehicle accidents:
- “What did you hear right before the accident?” If the police report, photos or accident reconstruction report shows skid marks left by any vehicle, that would produce a loud, shrill noise that could be heard for blocks around.
- “Describe how your body moved during the accident.” A detailed verbal description and/or the videotape of the deposition (if used) will be useful to a retained medical doctor, chiropractor, biomechanics expert or accident reconstructionist. Sometimes the plaintiff’s description may contradict the laws of physics (such as when plaintiff says he fell backwards following a sudden bus stop) or be inconsistent with other evidence.
- “What parts of your body made contact with what parts of the interior of the vehicle (or sidewalk or floor)?” You want to compare the purported points of impact with the medical evidence of the location of cuts or bruises.
- “When did you start to hurt?”
- “Did you have any swelling? Where? When did that occur?”
- “Did you have any cuts, bruises or scrapes? Where? When did those become visible?”
- “Did anyone take any photographs at the location of the accident? Who? When? When did you see these photographs?”
- “Did anyone take photographs of your injuries?” Ideally, you should have obtained these photos in response to document demands before the deposition. Sometimes the plaintiff’s lawyer hasn’t done his or her job in gathering responsive documents, so you should always ask the plaintiff.
- “When did you first seek any medical treatment? How did you get there?” I’m always amazed how many accident victims call a lawyer before a doctor. And there was the bus fall-on-board case I defended once where the plaintiff stood up, announced he had changed his mind and “wanted to get paid,” and laid back down on the floor to wait for the paramedics. Meanwhile, he got out his cell phone and started calling law firms.
- “How did you find your doctor?” Often the lawyer has referred the client to a favored treater, who will take a lien on the case instead of payment up front. Many plaintiffs’ attorneys, however, frown on this practice.
- “How long were you at the doctor’s office for treatment?”
- “Describe your treatment.”
- “When did you last see your doctor?”
- “Did your doctor prescribe any medication?”
- “Are you currently taking any medication as a result of this accident?”
- “How are you feeling today?”
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