Video Class: How to Prepare Your Client for Deposition

I’ve written about and presented seminars and webinars on numerous deposition topics. One of the most useful subjects, both for lawyers and their clients, has been preparing to give testimony at a deposition. Proper preparation of the witness can reduce anxiety, improve performance and dramatically affect litigation outcomes.

Deposition today is often the closest a client will get to a “day in court,” as fewer and fewer cases go to trial. The deposition is usually the first time that the opposition will meet and evaluate your client – and formulate decisions about how to resolve the case.  The opposition will be looking to uncover and exploit any inconsistencies, improbabilities, weaknesses, and flaws present in your client’s testimony and your case.  One mistake at this crucial point in the litigation can break your client’s case.

For an in-depth look at how to prepare your witness, check out my one-hour video class: “How to Prepare Your Client for Deposition.” Now available in streaming video from AttorneyCredits.com. Although geared for lawyers,  if you are facing your own deposition, you may find the advice useful.

Lawyers Praise “How to Prepare Your Client for Deposition”

After almost one year on line, lawyers have given this video class high marks. Here are some comments.

• “Very helpful! I would say the substantive and procedural tips he provided are excellent for practising or trial attorney. ” – Margarita G. (Glendale, CA)
• “this was very thorough and clear. great presentation” – Joy (San Francisco, CA)
• “Succinct, clear & to the point.” – Jennille (Dana Point, CA)
• “Very informative.” – Joanne (Stamford, CT)
• “Excellent course from a really excellent attorney.” – Beverly (ALAMEDA, CA)
• “very thorough” – bruce
• “I liked the basic points to remember.” – Joseph
• “Excellent.” – Eric
• “Very practical, excellent tips and suggestions for truthful answers in a depo.” – Eric
• “Great course.” – Eric
• “Excellent and clear presentation.” – John
• “The content was excellent — comprehensive and practical — but the delivery was often slow or stilted. Better editing of the video presentation might help.” – Robert
• “It was very effective, Instructor was engaging” – Kaitlin
• “- excellent course” – Maura
• “Good course! My favorite so far!” – Eric
• “Outstanding. Thank you.” – Barbara
• “Hire this dude to do an advanced course!!!” – Leonard
• “Great real-world application” – Esah
• “Very effective presentation and practical.” – Randy
• “Excellent” – Gary
• “None. Very useful information.” – Amy
• “well presented–concise and informative” – Alvin
• “None. The instructor gave excellent tips for preparing a client for deposition!” – Brenda
• “Great lecture…” – Artin
• “good….” – Michael
• “Great speaker, great presentation” – Daniel
• “Extremely helpful. Thank you.” – Jessica
• “GOOD PROGRAM” – Joseph
• “overall I think the course was very helpful and provided information that I will definitely use in the future. ” – Natasha
• “Excellent presentation.” – Donald
• “A” – Abbie
• “Good job” – Gary
• “The best part was the “five appropriate answers” for a depo.” – Zachary
• “I loved the simple way he addressed the 5 “perfect” answers!” – Vianey
• “Thank you for the informative lecture on depos.” – James
• “Do nothing. Outstanding presentation.” – Jacqueline
• “It was informative. ” – Sascha
• “- it was excellent” – edward
• “I have taken depositions for years and Mr. Newdorf was excellent. Clear, concise, succinct. He drilled down to the most important issues necessary to protect a client.” – Diane
• “good presentation” – Mohinder
• “Very Helpful” – Gary
• “Altho I have been doing depositions for many many years the lecture contained many useful hints and cautions that were very helpful” – Murray
• “excellent, clear, intelligent speaker” – Beth
• “Don’t change anything.” – Arnold
• “Instructor did an excellent job!” – Robert
• “Thought the presentation and the presenter, as well as the supplemental written materials, were all excellent.” – Margaret
• “Excellent presentation” – Luther
• “Keep up the good work!” – TRIPOLI
• “Excellent advice and excellent presentation. ” – Lola
• “very good presentation very insightful!” – Tene
• “GOOD” – Lawrence
• “it was a good overview” – Judith

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Staying on the Cutting Edge

One of the ways that I stay current on the law — in addition to trying to shape new law — is by participating as an amicus curiae in appeals on issues that affect my clients. An amicus, or friend of the court, adds another perspective to the appeal in order to ensure that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.

Last week (March 13, 2013), I was in Los Angeles arguing in the California Court of Appeal in the case of Corenbaum v. Lampkin, Docket No. B236227. I represented two groups, the League of California Cities and the California State Association of Counties. The appeal is from a trial verdict in an auto collision case. The issue is whether the amount of medical bills above and beyond what the insurance company has paid are admissible into evidence.

The Corenbaum case concerns an issue of determining medical expense damages that is a question in almost every tort case. With the advent of managed health care over the past few decades, insurance companies have been negotiating larger and larger discounts for medical services. But hospitals and doctors for the most part have not lowered the charges listed on medical bills to reflect the lower amounts actually accepted as payment in full. Hospitals and medical groups have kept their billing rates at higher levels while agreeing that they would accept significantly lower amounts as payment in full – often two-thirds lower. These days, the full medical bills are rarely paid by anyone, which has led one legal commentator to call medical bills “illusory.”

I have been litigating this issue since 2001, when I was appellate counsel in the case Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298. Nishihama was one of the earliest California cases holding that a tort plaintiff cannot recover more in past medical damages than the amount the doctors and hospitals accepted as full payment from medical insurance.

This issue made its way to the California Supreme Court, which agreed with Nishihama in the case of Howell v. Hamilton Meats & Provisions (2011) 52 Cal. 4th 541. In the Howell opinion, the Supreme Court cited a hypothetical case I used to argue the issue in the amicus brief I wrote. One issue left open by the Supreme Court in Howell is whether the full, unpaid medical bills might be admissible for a purpose other than determining the award for past medical expenses. Plaintiffs have argued that the bills are evidence of the amount of pain and suffering (also called non-economic damages) on the theory that the full medical bills are a better indication of the extent of injuries than the lower amounts paid. This would seem to be contrary to the Supreme Court’s reasoning in Howell, which held that the billed amounts are arbitrary, unreliable and inadmissible to prove medical damages.

My amicus brief in Corenbaum v. Lampkin on behalf of the cities and counties is available by clicking the link here. In the Corenbaum case, in addition to my argument in support of defendants, the Consumer Attorneys of California argued as an amicus in support of plaintiffs. You can read the Consumer Attorneys’ brief on the group’s website.

The argument last week was especially exciting for me because I was arguing along side a partner from Horvitz & Levy, the pre-eminent appellate law firm in California. That was also the firm that gave me my first job in the law, a summer associate position while I was in law school in 1992. In the audience was David Ettinger, the partner at Horvitz who hired me for that summer job. (Also in the audience were my parents, Arnold and Lois Newdorf, who had never before seen me in court.)

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the third year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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Writing a Winning Motion

I’ve compiled a selective (and somewhat subjective) collection of tips for better legal writing. Follow these informal rules and you’re more likely to convince both your boss and the judge that you know what you are doing.

  1. Don’t file worthless motions.
  2. The Statement of Facts should be persuasive but not argumentative
  3. Outline your motion before writing it
  4. Don’t tell the judge the legal standard for granting summary judgment
  5. Don’t overload your motion
  6. Vary your style of reciting the authorities
  7. Revise, edit and shorten
  8. Don’t set your hearing for a Friday
  9. Rules are made to be broken

I know, this list of do’s and don’ts doesn’t explain much. If you want to know more, check out my article in The Recorder, which is available online (subscription required).
Or if you prefer to watch my one-hour lecture (and get free MCLE credit), go to lexvid.com.

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The Jury Is Watching: How to Lose a Trial by Jaywalking and Other Bad Behavior

The star of one of my favorite trial stories isn’t a lawyer.

The star of this story is my wife, Shoey Sindel, a Berkeley wedding and portrait photographer. She was seated on a jury in a personal injury case. The case was tough for plaintiff, who admitted to being drunk and jaywalking when a motorist hit him on a dark street at night. Liability wasn’t the only tough sell. Damages were iffy because plaintiff had been unemployed for several years.

Plaintiff’s counsel played the sympathy card, hoping that a showing of pain and suffering would sway the jury. When the plaintiff took the stand, he walked tentatively, leaning on a cane. He grimaced with each step. Either the plaintiff was in a lot of pain or he was a good actor.

The next morning, as my wife was driving to the courthouse, who do you suppose she saw running across the street, jaywalking and holding a cane like he was going to hand it off in an Olympic relay race? That’s right. The plaintiff.

Plaintiff did not appear to be in pain or suffering from any injuries. Shoey sat through the morning testimony until a break. She pondered what to do. Wait until jury deliberations and tell the jury what she saw? She expected that would lead to a swift verdict against this shifty plaintiff. She decided to tell the bailiff she needed to talk to the judge. The judge along with the attorneys met with Shoey in chambers. Shoey told the judge what she had seen that morning and that she couldn’t be an impartial juror. That was true. Shoey had become the star witness for the defense. Defendant would be entitled to call her as a witness to impeach plaintiff’s claims of pain, suffering and injury.

The judge had no alternative. He declared a mistrial. The matter settled, and Shoey never had to testify as to what she saw.

Lesson for Lawyers: You Are Always On Stage

There is an important lesson here for lawyers and their clients during jury trials. The jury is scrutinizing you at all times, not just when you are on the stand or at the lectern. Late to court? Don’t cut off that car in the parking lot or cut to the head of the line at the courthouse entrance. That’s right — the jurors are watching.

Taking a break in the hall? Not the best place to share a joke and laugh with your client. Mirth may not convey the message you would choose as to the seriousness of the trial proceedings.

Sitting at counsel’s table when the other side’s witness has just delivered a surprise zinger? Now’s not the time to jump up straight in your chair, start scribbling notes furiously or lean over to whisper to each other with an agitated expression. Such a sudden burst of activity is the best way to signal the jury to pay attention to damaging testimony. Best reaction? A yawn. Trials are long and boring. At any one time, most jurors are drifting or daydreaming. No need to break the reverie when you’d rather they kept snoozing.

Prepare your clients and witnesses as to courtroom etiquette before trial. They are to conduct themselves politely and with proper decorum from the time they get near the courthouse until the they have left the neighborhood at the end of the day. You can’t speak with jurors, but you can be polite. Hold the elevator or door. Let the juror go first.

The jawywalking plaintiff with his phony injuries is an extreme example. Most lapses of decorum won’t lead to a mistrial. Just remember — the jurors are watching.

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the second year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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Recovering Past Medical Expenses In California Personal Injury Lawsuits

The California Supreme Court in Howell v. Hamilton Meats clarified the rules for recovering past medical expenses in personal injury lawsuits.

As in the past, accident victims are permitted to recover from the defendant medical expenses that were paid by the plaintiff’s insurance. This exception to the rule against double recoveries (that is, plaintiff recovers the same damages from two sources) is permitted under California’s collateral source rule. Following earlier Court of Appeal decisions such as Nishihama v. City and County of San Francisco, the Howell rule limits damage awards for past medical expenses to lesser of (1) the reasonable value of the services or (2) the amount paid and accepted by the medical care provider as full payment.

In most cases, this means that a plaintiff can recover the amount paid by their medical insurance, but not the higher amount shown on the providers’ medical bills. Most medical care is paid for by private insurance or government plans such as Medicare, and these plans have negotiated or statutory rates that are significantly lower than the charged rates as stated on bills. When care is provided under an insurance or government plan, the patient is not responsible for charges beyond what the plan pays.

Plaintiffs battled insurance companies over this issue because the difference between the paid and charged rates on medical bills is significant — the plans sometimes pay less than 30 cents on the dollar. That can be a significant reduction in the potential recovery for an accident victim.

Here are practical tips for litigating medical damages in your case.

The California Supreme Court in Howell empowered the trial courts to reduce medical expense awards after the verdict if they exceeded the amounts paid for the medical care. Here is a checklist of requirements for such a reduction:

  • Defendants must provide evidence of the amount of the bills that was paid by insurance or a government plan. This is usually obtained from the hospital’s or doctor’s billing records.
  • Defendants must provide evidence that (except for co-payments or deductibles) the plaintiff is not liable for any amount beyond what was paid by insurance/government plan. Caution: the bills alone generally will not suffice to establish this requirement, even if they reflect amounts “written off.” You may have to provide testimony from a representative of the medical care provider’s billing office.
  • The verdict form must have a separate damages line for past medical expenses. Lumping this category in with future medical expenses or other economic damages will most likely waive the right to a post-verdict reduction.

Evidence of insurance remains inadmissable at trial. Defendants must raise the issue initially as a motion in limine to establish the amount of bills paid, which will be admissible at trial. The issue of a reduction must be raised after verdict within the time allowed for a motion for a new trial or motion for judgment notwithstanding the verdict.

How does this affect award of past medical expenses to uninsured plaintiffs?

The holding of the Howell case is broad enough to cover damage awards to plaintiffs who are uninsured. Where the bill has not been paid by anyone, damage awards for past medical expenses are still capped at the reasonable value of the services provided. In that case, both plaintiff and defendant will have to offer expert evidence at trial as to the reasonable value of the services. Plaintiffs will contend the billed amounts are reasonable. Defendants will counter that the full billed amounts are not paid by anyone. These days, hospitals provide “uninsured patient” write-offs comparable to the discounts given to insurance company payors, and the amounts generally accepted by the hospital or doctor as full payment establish the actual value of the services.

About California Litigation Firm Newdorf Legal

David Newdorf has been litigating medical damage issues in trial and appellate courts since 2001, when he was appellate counsel in one of the seminal cases on medical damages, Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298. The California Supreme Court decision in Howell affirmed the earlier decision in Nishihama and quoted from Mr. Newdorf’s amicus brief for the League of California Cities.

Mr. Newdorf is managing attorney of San Francisco-based Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law. Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed in the 2011 Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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Where You Sue (or Get Sued) Matters

You may have a choice of courts in which to file your California personal injury or business claim.

Should you choose state or federal court? Which county or state or judicial district? These choices matter because of differing procedural rules, local procedures, and jury demographics. For example, federal court requires a unanimous jury to reach a verdict (even in a civil case), but only 9 jurors out of 12 are needed to reach a verdict in California state courts. Next to an outright defense verdict, a hung jury is generally the civil defendant’s next best outcome. Since hung juries are more likely in federal court (you only need one hold out juror), a defendant may have a good reason to remove a case from state to federal court.

Defendants benefit from federal court summary judgment procedures.

In U.S. District Court, the shorter notice periods for bringing summary judgment motions generally favor defendants. With four to five weeks from filing to hearing in federal court, plaintiffs may not have a chance to conduct discovery directed at issues and points raised in the motion. In California courts, the opposing party will have at least 60 days before its opposition is due. During this time, the plaintiff may serve written discovery requests and take depositions if needed to shore up the evidence in support of an essential element of plaintiff’s claim. Finally, federal judges have more latitude to grant partial summary judgment concerning discrete issues compared to the narrow grounds for summary adjudication under the California Code of Civil Procedure.

Choosing your jury pool

In state court, jury pools vary from county to county. Rural counties tend to provide more conservative jury pools, which often is reflected in defense verdicts or lower plaintiff’s verdicts. Urban counties generally are more plaintiff-friendly venues. But even within a metropolitan area, jury pools differ from county to county and courthouse to courthouse.

Lawsuit venue rules vary depending on the case

You may have little choice about where to file your action. For example, consumer collection actions can only be filed in the county where the contract was signed or the county where the defendant currently resides. A defendant may have the option to remove a lawsuit to federal court, but the removal petition must be filed within 30 days of service of the complaint. Where there’s a choice, the decision where to file can have a large effect on the ultimate outcome of litigation. Consult with an experienced business or personal injury attorney concerning these strategic decisions. If you are a transactional lawyer, you would be well advised to consult with (or refer your client to) a litigator regarding these strategic litigation calls.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 (or e-mail to info(at)newdorf.com) for all of your California complex litigation questions.

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The “Fine Print” In Contracts Does Matter

Few clients care about the contractual boilerplates – until their business dispute hinges on these terms and conditions. Transactional lawyers, businesses and individuals should consider what standard terms are appropriate before a dispute arises. Post-dispute, you need to read the contract closely.

Common Contract Terms That Will Affect Your Dispute

Some examples of terms that will affect your contract dispute:

  • The forum selection clause may dictate where you need to hire litigation counsel.
  • Look for remedy-related terms such as “limitations of remedies,” “waiver of damages” and “indemnification.”
  • Did the parties waive a jury or court trial, and if so, what will that do for the prospect of recovering significant compensatory damages?
  • Attorney’s Fees Provisions in Contracts

    If there is an attorney’s fee provision, think carefully how that will affect the lawsuit. Often an attorney’s fee provision will cause a party to become entrenched in its position and make it difficult to settle a relatively low-value dispute. The party who is convinced he’s right may not mind spending $100,000 in fees on a $50,000 dispute because he expects to recoup them.

    Also pay attention to contractual procedures for notice. Many contracts require written notice and an opportunity to cure any claimed breach. Failure to follow these procedures may jeopardize the claim.

    California Breach of Contract Law Firm

    Newdorf Legal is a California-based law firm with extensive experience litigating breach of contract lawsuits, interference with contract, breach of the implied covenant of good faith and fair dealing, and many other types of business lawsuits. For more information, contact David Newdorf at 415-357-1234 or info(at)newdorf.com.

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San Francisco Superior Court Law & Motion Tips

Judges Peter Busch and Loretta Giorgi, who preside over the Law and Motion Departments at San Francisco Superior Court, provided useful tips and insights into the working of their courtrooms at a recent seminar. The take-away message: make it easy for the judge to rule in your favor. Be concise; avoid repetition; organize your brief with logical headings; organize the evidence with tabs; provide courtesy copies to chambers; if attacking the pleadings, attach those to your motion.

This is always sound advice, and even more so with the conslidation of courtrooms and judicial staff layoffs.

Here are some noteworthy tidbits from the Bar Association of San Francisco event:

  • Demurrers to answers, although permitted, seldom advance a case. Both judges discouraged them.
  • There is a backlog of unsorted mail in the clerk’s office. If you want or need the order on your motion filed, bring it to the hearing or bring it in ex parte.
  • Don’t file pro forma objections to every sentence of every declaration. Save evidentiary objections for points that matter. According to Judge Busch, parties are not entitled to rulings on every objection. Interestingly, Judge Giorgi said she reviews the objections — not the research attorneys.
  • The Court does not have West’s California Reporter — cite to the Official Reporter (Cal. and Cal. App.). Parellel cites are unnecessary.

“We will rule on more summary judgment motions in a month than you will write in a career.” Judge Peter Busch.

  • Unless your motion turns on an aspect of the legal standard for a motion — e.g., the shifting burden on summary judgment — you don’t need to recite the standard. The judges can recite that in their sleep.
  • The judges need your courtesy copies and will continue the hearing if any courtesy copy is missing. If you want to make sure the hearing goes forward, lodge both your briefs and the other sides briefs.
  • Judge Giorgi will often give a pro per litigant a break and continue the hearing if the unrepresented party did not give proper notice to opposing counsel of their intent to appear and contest the tentative ruling. Judge Busch generally will enforce the rule and adopt the tentative if proper notice was not given.
  • The judges used to have a bench memo from their clerks for every motion. With staff reductions and conslidation, the judges now handle approximately one-third of the motions from start to finish without a bench memo.

ABOUT NEWDORF LEGAL – A BUSINESS LITIGATION FIRM

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 for all of your California complex litigation questions.

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Sample Deposition Questions In Personal Injury Cases

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?”

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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Preparing Your Client For Deposition

Preparing your client to testify at deposition can make or break a lawsuit.

Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience.At the end of the day, a weak performance or just one poor answer can sink a case.  But even with stakes this high, most lawyers do not spend enough time preparing the client to testify.  While the demands of your practice, your client’s calendar, or the legal budget for the case may not allow it, ideally you should spend at least two hours of  preparation with the client for each anticipated hour of deposition.  And sending your client home with a stack of documents to review is no substitute for the face-to-face prep session.

San Francisco Business Litigation Law Firm

Here is a basic outline and some tips for your deposition preparation session with your client.

  • Start with the basic procedure.  Let the client know the who, what, when and where of the deposition.  Who will be present?  Explain the role of the court reporter.  Tell the client whether the deposition will be videotaped.  Explain the oath.  Go over the Q & A format.  Explain that you may be stating objections for the record, but that the client will have to answer the question except in the rare cases when you instruct him or her not to answer.  If this is the witness’s first depo, he or she will appreciate learning about the basics.  The client will likely have some anxiety and letting hime or her know what to expect will lessen the unease.
  • Give a sample admonishment.  Come deposition day, it is likely that the lawyer who noticed the depo will start with a standard list of “ground rules.”  Explain these and let your client hear a sample admonishment during the prep session.  When the client hears these same standard instructions from the opposing lawyer at the beginning of the actual deposition, she or he will think “I’m prepared for this.”  That will calm any jitters and allow the client to focus on what’s important.  Don’t forget to ask your client during prep about medication he or she takes.  Medical conditions can be a sensitive issue, and if your client is taking prescription medication, you don’t want to the client to be surprised and embarrassed by this common question.
  • Explain how the deposition fits into the end goal of “winning.”  Remember:  the deposition is opposing counsel’s opportunity to learn about your case.  If he doesn’t do a good job, is that our problem?  Of course not.  At the deposition of our clients, our strategy is defensive.  I often use the analogy that the depo is like a game of “20 Questions.”  If the questioner doesn’t ask the right questions, he loses.  But the first instinct of the client — especially if this is her first encounter with the other side — may be to attempt to:  (1) persuade the other side; (2) charm the other side; (3) argue with the other side; or (4) tell her entire story.  It is your job in prepping the client to get her to resist any of these common traps.  Cases are not won at the client’s depo, but they can be lost.  Let the client know that this isn’t the time to “tell her story.”  There will be other opportunities — including arbitration, mediation or trial.
  • Keep answers short.  The best deposition answers — from the point-of-view of the defending side of the table — are the shortest, truthful answers.  Tell your client:  Don’t explain.  Don’t speculate.  Don’t help the opposing counsel.  Explain the difference between a “guess” and an “estimate.”  I use the example of the conference table:  “You may not know the exact dimensions of the table in this room, but you could give an estimate.  But if I asked you ‘How big is the conference table on the floor below?’ — your answer would be a guess because you’ve never been in that conference room.”  (If anyone one has another favorite example, let me know.  I’m always looking for fresh material.)
  • The best deposition answers are the ones that answer the question directly and briefly.  For example, the proper answer to the question:  “Do you know what time it is?” is either “Yes” or “No” — but not “10 a.m.”  Why?  Because the latter answer volunteered information that was not called for by the question — a basic depo mistake.  Your client may protest that the deposition will take longer that way.  No one wants to spend any longer than necessary in a depo, and your client may think:  “I have nothing to hide. If I just tell the lawyer everything I know, we can all get out of here sooner.”  Wrong!  Every volunteered tid-bit will be written down by the opposing counsel and lead to another line of questioning.  Though counter intuitive to most clients, you must emphasize that shorter answers lead to shorter, better depos. 
  • The “perfect” answers.  I tell clients that the only “perfect” depo answers (if they are truthful ones) are the following:
    “Yes.”
    “No.”
    “I don’t know.”
    “I don’t recall.”
    “Can you rephrase your question?”

As for the last answer — “please rephrase” — tell the client to never answer a question he doesn’t understand. It’s the questioner’s job to ask understandable questions, and it’s dangerous to answer a question if one doesn’t know what it means. Explain the difference between “I don’t know” and “I don’t recall.” Some witnesses will overuse these two answers because they are easy. That mistake will come come back to haunt you at trial when the client’s memory and knowledge has been miraculously restored.

  • Review important documents and all prior statements.  During prep, you and your client should go over all of the witness’s own prior taped or written statements on the subject of the lawsuit.  Deposition testimony that is inconsistent with prior statements can lead to uncomfortable cross-examination at trial.  And in prepping for the depo, don’t just give your client a stack of documents to review in his office or at home.  Having the client read them on his own — if he actually does it — is better than nothing, but not much.  You need to read and discuss the important documents with your client.
  • Practice Q & A.  This is useful and should be done.  But if you anticipate that your client will be vigorously cross-examined at depo, get another lawyer to deliver the tough practice grilling.  For example, O.J. Simpson’s dream team — not lacking in cross-examination skills — brought in Berkeley criminal defense maven Cris Arguedas to do the deed.  Why?  Because being subjected to cross-examination isn’t fun.  Even knowing that this is “practice” and you’re really on his side, your client could easily resent getting the third-degree from his own lawyer.
  • Don’t forget to review the “Top 10 Killer Deposition Questions” with your client.  Read my list of “killer” deposition questions in last week’s Lit Tip Of The Week.  And prepare for other expected tough questions.
  • Videotaped depositions.  If you know the deposition will be videotaped, tell your client.  Instruct your client to dress in trial attire.  For men, that usually means suit or jacket and tie.  For women, a dress suit.  If your client has any distracting mannerisms (such as resting chin on hand or not looking at the questioner), tell her what they are and to resist them while on camera.  Also, if the depo will be videotaped, warn your client not to turn and look at you before answering.  This gesture makes the witness look like she is looking to her lawyer to tell her what to say.

Know your case before deposition prep

Every case is different, so consider these rules as guidelines.  If you have a good reason to deviate from these suggestions — go ahead.  But you should at least know and understand the conventional wisdom before altering it.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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