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Tips to Steer Clear of the Lackluster Depo

Author: Kathryn Lee Colgan

Guest Editor: Alla Policastro

March 4, 2019 9:00am

After taking a certain number of plaintiffs’ depositions in one’s career, it can be easy to just coast and go through the motions; getting in and getting out after you have the main information you need. However, once trial comes around, you may be kicking yourself for not asking a few crucial questions that could help support and shape the defense of your case. While the questions posed below are not necessarily commonplace or appropriate in every case, they can help to illuminate certain key issues plaintiffs are would like to avoid.

On what date did you retain your attorney?

This question will get an objection from plaintiff’s counsel almost every time. However, as long as you are simply asking for the date of retention, and not the content of their communications, this is fair game. Further, depending on the response, this could be critical information to present to a jury and certainly could raise a few eyebrows.

Why did you feel the need to retain your counsel?

Do not let plaintiff off easy. If you find out plaintiff retained counsel within days or weeks of the incident, ask plaintiff why they felt the need to hire an attorney. You may get a blank face or, you may get a response you can use to your advantage.

How did you find your lawyer?

In some instances, the response will be mundane… “I found them on Yelp.” Other times however, you may find out the same counsel previously represented plaintiff in a prior matter, which could open the door to a number of key follow up questions.

Why did you feel the need to take a picture of your injury?

If plaintiff took a picture of their injuries shortly after the incident or accident, ask them why they felt the need to photograph their injuries?  The answer just might be “because my attorney told me to.”  This always leads to some interesting follow up questions.

Do you take any responsibility for this incident/event or accident?

While this question is certainly case/fact specific, it tends to catch plaintiffs off guard. A witness’s response can be crucial when it comes to allocating some portion of liability to plaintiff in any given case.

When was your last vacation was and what did you do?

Again, the last thing plaintiff is expecting you to ask about is their last vacation. Sometimes you will hear the, “I have not gone on vacation since the incident” response. However, you may find out plaintiff just got back from a cruise or skiing vacation, which could assist you in numerous ways if further discovery and theme creation moving forward.

While these questions may be a bit out of the ordinary, they tend to elicit some solid testimony for the defense, not to mention keeps plaintiffs on their toes.

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