I think we can start with this: everyone will develop his or her own style when learning to take an effective, and more effective, discovery deposition of a plaintiff. However, I think there are a several important topics, or areas, that must be discussed in a deposition.
Begin with this: listen more than you talk. The point of the discovery deposition is to learn as much information as possible that may be relevant to the case. This information may end up helping your case or hurting it. But, you would rather learn the information at the discovery deposition than learn about it for the first time when you are sitting in a doctor’s deposition or in trial.
I think there are at least five areas that need to be discussed in the discovery deposition of a plaintiff:
- Who are you?
- Prior medical history and prior (and post) accidents/injury events?
- What happened (in the accident)?
- Medical treatment post-accident?
- How has the accident impacted you and how are you now (basis for damages claim)?
I am not going to get into detail on each of these topics. That’s because there is no script for how this should be handled or even in a specific order. If you stick to a script, you’ll likely be thinking about the next question even before it’s time to ask. You may not know what all needs to be asked until you hear the response to any of the questions in the categories above, or other categories that may be relevant to the claim.
Learn about the plaintiff. It’s your only time to talk to the plaintiff. Where are they from? Where do they work? Who knows about the accident? What is the plaintiff involved in and is the plaintiff involved in more or less now? Do not just listen to answers to the questions. What does this mean? I was told several years ago in a body language interpretation class, “[l]isten with your eyes.” Pay attention to how the plaintiff presents himself or herself. Body language is one of the most truthful forms of expression.
The other areas above speak for themselves. There may be a lot to talk about in each area. Some areas more than others. Remember, you are not following a script, but, rather, asking about areas of concern or topics within each of the areas above.
One of the most common mistakes I see, and have made, in taking a plaintiff’s discovery deposition is when an attorney moves on to another question or topic before fully fleshing out a specific issue. An attorney may be embarrassed to ask a question. A party may be evading a question. Rather than “press” to get the information, the attorney accepts a partial answer and moves on for the sake of moving on. The attorney may not ask the one question that could change the evaluation of the case. One of the goals of the discovery deposition is to avoid a surprise at trial.
Ask the necessary questions at a discovery deposition. Discover the issues relevant to the case. To the extent possible, prevent surprise down the road. Get the information necessary to evaluate the claim and to be able to assist your client and/or carrier to determine whether the claim or case is one to settle or take to trial. I doubt any of us can ever learn it all. An attorney may leave the discovery deposition with the thought, “I meant to ask about __.” But, we can all prepare and be thorough and be much more informed about the case when the discovery deposition concludes.
Questions about discovery depositions? Can we help? Never hesitate to give us a call.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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