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Depositions


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Goals It should be obvious that, while deposing the tortfeasor, DrGaber.com


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GAB00409_Trial Reporter Ad2.indd 1


3. If your client is providing information that is non- responsive, don’t be afraid -- while the deposition is in progress -- to firmly tell your client: “Focus on the question Ms. Defense Counsel has asked.”


you will attempt to nail down key facts for trial. In addition, you want to mitigate potential harmful testimony or, at least learn about it so that you can find out before trial whether there is a reasonable explanation for the tortfeasor’s harmful allegations. Of course, anything admissible you can unearth to show that the tortfeasor was not a good driver or isn’t truthful will also help.


Liability Related Topics


1. Consider what “Rules of the Road” apply to your case and ask the tortfeasor questions related to them.13


12/15/09 3:24 PM


4. Don’t instruct your client not to answer unless it is necessary to preserve a privilege, to enforce a limitation directed by the court, to present certain motions, or to memorialize that your client is being harassed.11


5. Objections. Be mindful of the rules and guidelines concerning them. See fn. 6, but do object where appropriate.


II. Deposing the Tortfeasor12 Preparation


1. Review the file materials relating to the collision, including but not limited to, any police reports, photographs of the scene, intake sheets, and witness statements.


2.


If liability is at issue, use Google Maps satellite street view or Bing bird’s eye view to examine the scene of the


11 For more information on this topic,see "Te Multi-Jurisdictional Practitioner Looks at Depositions in the District of Columbia," Maryland and Virginia, DC Trial, Volume IX, No. 4 (Fall 2009).


12 At the risk of stating the obvious, many of the topics listed for client preparation can also be turned into questions for the tortfeasor’s deposition.


22 Trial Reporter / Winter 2011


2. Driving Experience a. How long has he had a license? In what jurisdiction? Has it ever been suspended or revoked (this could lead to evidence of a mental or physical defect)? Any restrictions on it? Does he have handicapped plates? If so, what is his disability? I also like to make the tortfeasor produce license at deposition to confirm.


b. Extent of experience vehicle involved in collision? Did he own it? If not, did he have permission to drive it?


c. Stick v. automatic. If driving a stick, find out how long he has been driving stick.


3. Ask about driving purpose. Establish the time of the collision. Ten find out if the tortfeasor was going to work or any place involving a specific time he was expected to arrive? Was the tortfeasor rushing?


4. Ask about route. How well did he know it? If he didn’t know it, was he working from written directions, a GPS, a map, a live phone call? Was he or she due at the final destination at a particular time? If so, why? Any consequences for being late?


5. Explore potential distractions. a. Did he have passengers? Where were they seated? What were they doing? Was any music playing? If so, what music? How loudly?


b. Were there any roadside distractions (e.g., other


13 See Pat Malone’s and Rick Friedman’s essential reading for Plaintiff ’s lawyers: Rules of the Road, 2nd Ed.


collision. If you think it is sufficient you may not need to go to the scene yourself. (I once tried to personally visit the scene of every contested liability auto tort case I handled; with the advent of Google Maps, I no longer think this is necessary in all cases.) However you do it, make sure you understand the dynamics of the collision in relation to the scene.


3. Google the tortfeasor. Consider running him through Accurint or another database.


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