MAJ’s Trial Reporter Committee asked various MAJ members to share their discovery tips, strategies, and considerations to be included in this issue of Trial Reporter. This is what they had to share.
Berman | Sobin | Gross LLP
I have gone through my recollection of over 40 years of litigating cases attempting to come up with the best golden nugget about discovery. After an internal debate, the advice I offer is – DON'T!! Not don’t ever, but don’t automatically, or at least slow the roll.
As trial attorneys we develop habits that we rely upon because of their familiarity and, well, because that is how someone before us did it. I have learned, after many years, that the practice I had for the first half of my career - attaching discovery, especially interrogatories with my Complaint - was not serving me well. All it did was give defense counsel, who is often overworked/inattentive/lazy, an opportunity to prepare their client as to a well thought out defense. There have been times where the defendant has said something in a deposition that his attorney did not prepare him for or did not adequately spend time on (e.g. distance of the other vehicle, symptom of a condition, etc.) If the written discovery been propounded, defense counsel and defendant would have answered, reviewed, reviewed before signing. Why give them that opportunity?
Inasmuch as none of us can completely give up our security blanket, I set up depositions first and then actually bring the written discovery to the deposition (asking about opinions of experts, policy limits, others with personal knowledge, etc.) and hand it to defense attorney at the conclusion of the deposition.
Tangentially, I always leave myself several interrogatories given that every case takes a turn that you did not expect when it began. I like to keep at least 3 or 4 questions in my arsenal (yes, you can ask the Court for leave to ask more than the maximum but why go through that process). Of course, there are cases where you might need documents and I am not suggesting you never request those, although often those too can be requested after the deposition or at worst brought to the Defendant’s deposition. If you have investigated your case (police reports, carefully reviewed medical records, documents available from sources other than from Defendant) discovery can be used to sharpen your case as a well-honed discovery device rather than buckshot spread out everywhere, including questions that have no relevance to the facts of the case.
Law Offices of Markey & Orsi
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Take the deposition of important witnesses even when they are “your witness.” There is no rule that prevents you from taking the deposition of witnesses that are favorable to your position. Example: Collision occurs in neighborhood and is witnessed by your friend/neighbor. You identify the witness as someone that witnessed or has personal knowledge. Often the Plaintiff names but doesn’t depose the witness leaving it up to the defense to note the deposition. That allows the defense to control the initial questioning. When Plaintiff immediately notes the deposition, you get the first crack at questions which often results in the best answers. The same can apply to Plaintiff’s treating doctor, passenger in car, police officers…
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Videotape important witnesses such as corporate designee, the Defendant… Videotaping tends to keep defense counsel more under control and provides clips for focus groups or trial. With non-professional witnesses it can intimidate and sometimes keep them honest.
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When the defense claims to be quoting from a medical record, make them identify the record and give you an opportunity to look at the actual quote. When the defense who claims or implies they are reading from a record refuses, he/she is probably not quoting or at least taking it out of context. I instruct my experts before the start of a deposition to be aware of the defense claiming or implying they are quoting and to ask to see the document. I tell them when the defense refuses their request or mine to assume the defense is misquoting or taking it out of context.
Plaxen Adler Muncy, PA
Always depose the Defendant. Often attorneys will think they do not need to do this in a case where liability is clear, and from that perspective it may not be necessary when liability is clear. However, there are many other reasons I want to depose the Defendant. First and foremost, I want to know if they are going to testify about something my client said or did, or if they are going to try to make an observation like, "she wasn't hurt" - I would then try to keep that out in a Motion in Limine. I'd rather not find that out after they say it on the stand. Yes, we ask about conversations with the Plaintiff in our Interrogatories, but I do not trust everything responsive will be in that answer. I also want to assess how they come across, if they seem contrite or not, and if they will appear sympathetic (or unsympathetic) for some reason to the jury. You also find out things that can help your case. For example, I just took a deposition where my client was rear-ended and found out that the Defendant was not looking up because she was trying to change her shoes while driving. I can tell you that fact was not in her answers to interrogatories.
Potter Law
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Be the first to schedule deposition dates. If you wait for “house counsel” to schedule, you might be waiting a long, long time. Clients want to feel as if their cases are moving forward, not stalled.
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Send a lack of good faith upon the conclusions of depositions. Task to resend the letter and edit the letter to note that there was no response to the last letter. You should have several of these letters in your file before the trial date, so when there is an excess, you can back up the lack of good faith claim.
Saltzberg & Schloss
I am increasingly noticing that some defense attorneys are either not promptly turning over, or altogether failing to turn over, documents obtained by subpoena during discovery. Therefore, I do the following in my Circuit Court cases:
Include the following in Request for Production of Documents: Any documents received pursuant to any subpoena requests.
Every time a defense attorney issues a subpoena/Notice of Duces Tecum, I email the following to opposing counsel: I am in receipt of Notice to Take Depositions Duces Tecum directed to ABC Medical Center, XYZ NeuroTrauma Institute, ABC Healthcare and XYZ Injury Care regarding the Plaintiff. Please promptly provide me with a copy of any documents received by your office pursuant to the subpoenas. Thank you for your anticipated cooperation.
Weeks before the deposition of the Plaintiff, I send the following to defense counsel: On mm/dd/yy, you issued subpoenas/Notice of Deposition Duces Tecum to different healthcare providers regarding the Plaintiff. I never received any records from you pursuant to those subpoenas so I will presume you never received any documents pursuant to the Notice of Deposition Duces Tecum unless you advise me otherwise. Thank you for your anticipated cooperation.
Weeks before the trial, I send the following to defense counsel: On mm/dd/yy, you issued subpoenas/Notice of Deposition Duces Tecum to different healthcare providers regarding the Plaintiff. I never received any records from you pursuant to those subpoenas so I will presume you never received any documents pursuant to the Notice of Deposition Duces Tecum unless you advise me otherwise. Thank you for your anticipated cooperation.
If defense counsel attempts to use documents obtained by subpoena at the deposition of the Plaintiff and/or at trial, then I object to the use of those documents.
Irwin E. Weiss, Esq.
Let’s say an adverse fact witness says at deposition that the defendant had a green light, and your client ran a red light. I’ll ask many fact questions relating to provable matters, like the number of lanes of traffic, the colors of the vehicles, the day of the week of the collision, the speed limit, and so forth. Invariably, the witness will get something wrong. Let’s say it is the number of lanes of traffic on the roadway. When a witness in a deposition said something which I knew to be provably wrong, I liked to ask as my next question, “Are you sure?” Typically, the witness will say “I am sure.” Now he’s really sunk.
The next question……..possibly not until trial or, if it is a case that I really want to settle for some reason, after confronting the witness with a photo showing that there are more or fewer lanes of traffic than the prior testimony, I’d ask, “When you said you were sure about the number of lanes, are you as sure about that as you were when you testified about the color of the traffic light?”
Speed, time and distance: I like to ask many questions relating to these factors. How much time went by between the time you saw the vehicle and the collision took place? How many feet did the other vehicle travel from the time you first saw it until the collision took place? What was the speed of that vehicle?
Most witnesses have no conception of the relationship of speed, time and distance. They will say provably unreliable things like: “Ten seconds went by, the vehicle traveled 100 feet, and it was going 50 miles per hour.” Well, at 50 miles per hour, a vehicle travels 73 feet per second. So, if it was really going 50 miles per hour and 10 seconds went by, the vehicle would travel 730 feet, not 100. Or, if 10 seconds went by and it traveled 100 feet, it was going much slower than 50 miles per hour.
When a witness says that another person has knowledge of the event, say John Smith, but no one seems to know where John Smith lives or works, I ask the witness this question: “If John Smith owed you $10,000, how would you find him?” More often than not, the witness knows a relative of Smith’s, or that Smith has moved to Delaware, or that Smith has a boat and keeps it at a certain marina or gives you some other valuable information to help you track down Mr. Smith.
My MAJ
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