Deposition Checklists and Strategies

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1 Deposition Checklists and Strategies T. EVAN SCHAEFFER Contact us at (800) or F-1 (Rev. 6, 11/12)

2 Deposition Checklists and Strategies F-2 Copyright 2012 James Publishing, Inc. ISBN: All rights reserved. This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher does not render legal, accounting, or other professional services. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publication and disclaim any warranties of merchantability or fitness for a particular purpose. We view the publication of this work as the beginning of a dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (714) or send your comments to: Managing Editor James Publishing, Inc Cadillac Ave., Suite H Costa Mesa, CA First Edition, 12/06 Revision 1, 12/07 Revision 2, 12/08 Revision 3, 11/09 Revision 4, 11/10 Revision 5, 12/11 Revision 6, 11/12

3 F-3 About the Author About the Author T. Evan Schaeffer is a 1990 magna cum laude graduate of St. Louis University School of Law, where he was the Managing Editor of the St. Louis University Law Journal and received American Jurisprudence Awards in Contracts, Property and Evidence. Mr. Schaeffer is a member of Phi Beta Kappa and the Order of the Woolsack. Mr. Schaeffer was admitted to the Missouri and Illinois bars in He began his career as a defense lawyer, but since 1996 has worked primarily on the plaintiffs side. Schaeffer s areas of practice include complex commercial and tort litigation, including mass torts and class actions, as well as general civil litigation. He is a principal of Schaeffer & Lamere, P.C., based in the metropolitan St. Louis area. Mr. Schaeffer s publications include articles and essays in many newspapers and magazines, including the Chicago Tribune, the Houston Chronicle, the St. Louis Post-Dispatch, and the Illinois Bar Journal. Mr. Schaeffer also publishes two weblogs, The Trial Practice Tips Weblog and Beyond the Underground, which together have received notice in many print publications, including the New York Times and The Economist. (Rev. 6, 11/12)

4 Deposition Checklists and Strategies F-4 Editorial Advisory Board Lee H. Ayres Cook Yancey King & Galloway Shreveport, Louisiana Larry Bendesky Saltz Mongeluzzi Barrett & Bendesky Philadelphia, Pennsylvania William H. Fallon Miller Johnson Grand Rapids, Michigan Leonard B. Gabbay Leonard B. Gabbay, PC Austin, Texas Joseph A. Gallo Wilson Elser Moskowitz Edelman & Dicker Newark, New Jersey Alan K. Goldstein Goldstein & Price St. Louis, Missouri Eric J. Holshouser Coffman Coleman Andrews & Grogan Jacksonville, Florida Derek R. Layser Layser & Freiwald Westmont, New Jersey Richard C. McCrea, Jr. Zinober & McCrea Tampa, Florida Eric D. Miller Miller & Markle Atlanta, Georgia Peter W. Riley Schwebel Goetz & Sieben Minneapolis, Minnesota Editorial Staff Managing Editor: Donna M. Cole Editor: Scilla Bennett Production: Amanda Winkler

5 F-5 Table of Contents Abbreviated Table of Contents Chapter 1 Deposition Procedures and Strategies Chapter 2 Vehicular Liability Chapter 3 Premises Liability Chapter 4 Products Liability Chapter 5 Medical Malpractice Chapter 6 Employment Discrimination and Termination Chapter 7 Insurance Coverage Disputes Chapter 8 Consumer Protection and Deceptive Trade Practices Chapter 9 Breach of Contract Appendix A Other Representative Depositions Index (Rev. 6, 11/12)

6 Deposition Checklists and Strategies F-6 Table of Contents I. HOW TO USE THIS BOOK Chapter 1 Deposition Procedures and Strategies A. Chapter Organization 1:01 Overview of Substantive Law 1:02 Sample Deposition Outlines 1:03 A Note on Scope B. Bonus Information 1:10 Practice Tips and Forms 1:11 Specialized Deposition Outlines 1:12 Practice Tips Relating to Trial II. PURPOSES AND USES OF DEPOSITIONS A. Depositions as a Discovery Tool 1:20 The Scope of Depositions 1:21 Purposes of Depositions 1:22 When You Shouldn t Take a Deposition B. Depositions as a Settlement Tool 1:30 Using Depositions to Encourage Settlement 1:31 Practice Tip: Stay on the Offensive C. Depositions as a Trial Tool 1:40 The Use of Depositions at Trial III. PREPARING FOR DEPOSITIONS A. Depositions as Part of an Overall Discovery Plan 1:50 Reviewing the Case 1:51 Establishing Goals 1:52 Preparing an Outline 1:52.1 Practice Tip: When Making a Deposition Outline, Should You Write Out Every Question? 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. Preparing the Documents 1:60 Choosing the Documents to Use 1:61 Preparing the Documents C. Other Pre-Deposition Tasks 1:70 Where to Conduct the Deposition 1:71 The Deposition Notice 1:72 The Court Reporter D. Some Special Situations 1:80 Telephone Depositions 1:81 Video Depositions 1:82 Second-Chairing Depositions 1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions 1:84 Practice Tip: Use Exhibits Regularly During Video Depositions

7 F-7 Table of Contents IV. TYPICAL DEPOSITION PROCEDURES A. Starting Depositions 1:90 How to Begin a Deposition 1:91 Practice Tip: The Usual Stipulations 1:92 The Role of the Court Reporter 1:93 Practice Tip: Treating Court Reporters Right B. Questioning During Deposition 1:100 Preliminary Questions 1:101 Practice Tip: Always Ask the Standard Preliminary Questions 1:102 Practice Tip: Mixing It Up 1:103 Basic Questioning Technique 1:103.1 Practice Tip: Watch Out for Negatives in Leading Questions 1:103.2 Practice Tip: The Anatomy of the Perfect Deposition Question 1:104 Questions by Opposing Counsel C. Ending Depositions 1:110 How to End a Deposition 1:111 Practice Tip: Can You Wing It at a Deposition? D. After the Deposition 1:120 Following Up on the Transcript 1:121 Practice Tip: Critiquing Your Own Performance 1:122 Practice Tip: Motions in Limine 1:123 Practice Tip: The Witness Can t Outsmart You at a Deposition 1:124 Trial-Planning Steps to Take After a Deposition Has Ended V. OTHER DEPOSITION TECHNIQUES A. Handling Documents 1:130 Handling Documents at a Deposition 1:131 Practice Tip: The Document Speaks for Itself B. Situations You Might Encounter 1:140 The Uncooperative Witness 1:141 Practice Tip: Impeachment Nuggets 1:142 The Forgetful Witness 1:142.1 Practice Tip: Assume the Witness Is Lying 1:143 The Witness Who Talks Too Much 1:144 Practice Tip: Asking Follow-Up Questions 1:145 The Witness Who Talks Too Little 1:145.1 The Witness Who Answers I Don t Know 1:146 The Difficult Opposing Counsel 1:147 Practice Tip: How to Spot Liars Ask for the Story in Reverse VI. OBJECTIONS AT DEPOSITIONS A. Handling Objections 1:160 Handling Objections: Overview 1:161 Ignoring the Objection 1:162 Asking for the Basis of an Objection 1:163 Rephrasing the Question 1:164 Seeking Judicial Intervention 1:165 How Deposition Objections Are Ruled on Before Trial (Rev. 6, 11/12)

8 Deposition Checklists and Strategies F-8 B. Types of Objections 1:170 Objections to Form 1:170.1 Practice Tip: Leading Questions in Federal-Court Depositions 1:171 Objections to Foundation 1:172 Objections Relating to Relevancy 1:173 Objections Based on Privilege 1:174 Other Objections 1:175 Practice Tip: Speaking Objections and How to Stop Them VII. EXPERT DEPOSITIONS A. Before the Deposition 1:180 Written Discovery of Defense Expert Opinions 1:181 Sample Outlines B. Goals of Expert Depositions 1:190 Overview 1:191 Discover Every Opinion of the Opposing Expert 1:192 Discover the Factual Basis for All Opinions 1:193 Practice Tip: Attempting to Strike the Expert 1:194 Learn About the Opposing Expert s Qualifications 1:195 Obtain Admissions to Use to Support Your Case 1:196 Explore All Sources of Bias 1:197 Lay a Foundation for Your Demonstrative Evidence C. How to Prepare for Expert Depositions 1:210 Overview 1:211 Reviewing the File 1:212 Practice Tip: Review the Pattern Jury Instructions 1:213 Gathering the Key Documents 1:214 Familiarize Yourself With Government Standards 1:215 Studying the Expert s CV and Report 1:216 Practice Tip: Five Ways to Hit Home Runs With an Expert s CV 1:216.1 Practice Tip: Pay Attention to the Dates on the Expert s CV 1:217 Conducting Other Research About the Expert 1:217.1 Practice Tip: Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial 1:218 Consult With Your Own Expert 1:219 Practice Tip: Privilege and Experts D. Expert Deposition Strategies 1:230 Using Texts in the Deposition 1:231 Questioning Techniques 1:232 Practice Tip: Why Is That? and Other Follow-Up Questions That Never Fail 1:232.1 Practice Tip: The Use in Depositions of Tone of Voice and Body Language 1:233 Should You Cross-Examine the Expert During His Deposition? 1:234 Caution: Time Limits on Depositions 1:235 Practice Tip: What to Do When You Arrive for an Expert s Deposition 1:236 Practice Tip: What to Do When the Defendant Buries You With Experts 1:237 Other Practice Tips Elsewhere in the Book

9 F-9 Table of Contents VIII. ADVANCED DEPOSITION TECHNIQUES A. Managing the Witness 1:250 Get the Witness Acting Like a Normal Person 1:251 Make the Witness Feel at Home 1:251.1 Practice Tip: Improve Your Deposition Technique by Reviewing Your Transcripts 1:252 Make Sure You Get the Real Answer 1:253 Know When to Give Up 1:254 Practice Tip: How to Cross-Examine at Trial With Inconsistent Statements B. Asserting Control Over the Witness 1:260 Assert Your Right to Ask Questions 1:261 Control the Order of the Questioning 1:262 Control the Speed of the Questioning 1:262.1 Practice Tip: Asserting Control With the Unresponsive Objection 1:263 Be Confident About Your Abilities 1:264 Practice Tip: Make Your Depositions Shorter IX. FURTHER AIDS FOR READING AND NAVIGATING THE BOOK A. Focusing on Particular Aspects of Deposition Practice 1:270 How to Personalize the Book to Improve Your Depositions B. Navigating the Book s Practice Tips 1:280 Practice Tips Organized by Theme Chapter 2 Vehicular Liability I. ELEMENTS OF THE PLAINTIFF S CAUSE OF ACTION A. Theories of Recovery 2:01 Overview 2:02 The Elements of Negligence, as Applied to Vehicular Liability 2:03 Practice Tip: Read Your State s Model Jury Instructions 2:04 Common Fact Patterns 2:05 Practice Tip: Don t Overlook Potential Defendants 2:06 Practice Tip: Know the Statutory Law of Your State B. Typical Defenses in a Vehicular-Liability Case 2:20 Contributory or Comparative Negligence 2:21 Other Negligence-Based Defenses 2:22 Practice Tip: Discover and Attack the Facts Upon Which the Defense Is Based II. THE DISCOVERY PLAN A. The Sequence and Timing of Discovery 2:30 The Initial Round of Written Discovery 2:31 Caution: Never Overlook the Importance of Insurance 2:32 Request for Admissions 2:33 Practice Tip: Inspect the Scene 2:34 Practice Tip: Secure the Automobile if It Is a Total Loss 2:35 Depositions 2:36 Written Discovery of the Opinions of Defendant s Experts 2:37 Practice Tip: Consult With Your Client s Doctor (Rev. 6, 11/12)

10 Deposition Checklists and Strategies F-10 B. Documents and Exhibits in a Vehicular-Liability Case 2:50 Documents and Exhibits: Overview 2:51 Liability Documents 2:52 Damage Documents 2:53 Practice Tip: Take Your Client to Depositions C. Typical Deponents in a Vehicular-Liability Case 2:60 Typical Deponents: Overview 2:61 Occurrence Witnesses 2:62 Practice Tip: Learn to Do Informal Discovery 2:63 Medical Witnesses 2:64 Other Witnesses Regarding Damages 2:65 Practice Tip: Abstract Depositions as You Go 2:66 Defendant s Expert Witnesses 2:67 The Depositions the Defendant Will Take 2:68 Practice Tip: How to Use Experts in an Auto Case III. DEPOSITION #1: DEFENDANT-DRIVER A. Setting the Stage 2:80 Overview 2:81 Timing B. Deposition Goals, Strategy, Preparation, and Exhibits 2:90 Deposition Goals 2:91 Deposition Strategy 2:92 Deposition Preparation 2:93 Deposition Exhibits C. The Deposition Outline 1. Background Facts and Thumbnail Outline 2:100 Background Facts 2:101 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 2:110 Standard Introductory Questions 2:111 The Witness s Background 2:112 The Witness s Preparation for the Deposition 2:113 The Witness s Relationship to Other Parties and Witnesses 2:114 Practice Tip: Putting the Witness at Ease 3. The Collision 2:120 Part I: Events Leading Up to the Collision 2:121 Part II: Central Events 2:122 Part III: After the Collision 2:123 Practice Tip: Driving Experience and Licensure 4. Defendant s Condition on Day of Collision 2:130 Defendant s Activities on the Day of the Collision 2:131 Practice Tip: Estimates of Times 2:132 Practice Tip: Establishing Fatigue 2:133 Alcohol and Drugs 5. The Vehicles 2:140 Condition of the Deponent s Vehicle Before the Collision 2:141 Condition of the Vehicles After the Collision 2:142 Practice Tip: Lack of Damage as Evidence of Negligible Force

11 F-11 Table of Contents 6. Traffic Tickets and Plaintiff s Negligence 2:150 Traffic Tickets 2:151 Plaintiff s Contributory Negligence 7. Admissions, Witnesses, and Statements 2:160 Admissions 2:161 All Witnesses to the Occurrence 2:162 Knowledge of Conversations 2:163 Formal Statements 2:164 Informal Statements and Interviews 2:165 Conversations About the Accident or the Lawsuit 8. Closing 2:170 Photographs and Diagrams 2:171 Closing Questions IV. DEPOSITION #2: POLICE OFFICER WHO DID THE ACCIDENT REPORT A. Setting the Stage 2:180 Overview 2:181 Timing B. Deposition Goals, Preparation, and Exhibits 2:190 Deposition Goals 2:191 Deposition Preparation 2:192 Deposition Exhibits C. The Deposition Outline 1. Background Facts and Thumbnail Outline 2:200 Background Facts 2:201 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 2:210 Standard Introductory Questions 2:211 The Witness s Background 2:212 Relationship to the Parties and Witnesses 2:213 Practice Tip: The Importance of Law Enforcement Witnesses 2:214 Preparation for the Deposition 3. The Occurrence 2:220 The Witness s Involvement in the Occurrence 2:221 The Witness s Involvement in the Occurrence, Continued 2:221.1 Practice Tip: The Four W's 2:222 The Accident Report 4. Witnesses and Statements 2:230 Knowledge of Other Witnesses 2:231 Statements at the Scene by the Parties 2:232 Other Conversations About the Occurrence V. DEPOSITION #3: THE DEFENDANT S ACCIDENT RECONSTRUCTION EXPERT A. Setting the Stage 2:240 Overview B. Deposition Goals, Preparation, and Exhibits 2:250 Deposition Goals 2:251 Deposition Preparation 2:252 Deposition Exhibits (Rev. 6, 11/12)

12 Deposition Checklists and Strategies F-12 C. The Deposition Outline 1. Background Facts and Thumbnail Outline 2:260 Background Facts 2:261 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 2:270 Standard Preliminary Questions 2:271 Past Deposition and Trial Testimony 2:272 Practice Tip: At Expert Depositions, Set the Trap, Don't Spring It 3. Expert s File 2:280 The Expert s File Materials 2:281 Identifying the Expert s File Materials, Part 2 2:282 Cross-Reference: Practice Tips From the Products-Liability Chapter 4. Expert s Background and Qualifications 2:290 The Expert s CV 2:290.1 Practice Tip: What Is Your Role in This Litigation? 2:291 The Expert s Preparation for the Deposition 2:292 The Expert s Professional Background: Occupation and Education 2:293 The Expert s Professional Background: Publications 2:294 Past Testimony as an Expert 2:295 Other Work as an Expert, Including Income From Testifying 2:296 Past Work for the Lawyer Who Is Your Opponent 2:297 Practice Tip: The Time, Speed, Distance Formula 2:298 Practice Tip: Challenging Black Box Reports 5. Expert s Work on the Case 2:310 Overview 2:311 What the Expert Is Charging 2:312 The Expert s Preparations to Render an Opinion 2:313 Conversations and Correspondence With Lawyers About the Case 2:314 Conversations and Correspondence With Others About the Case 2:315 Practice Tip: The Expert s Knowledge and Understanding of Case-Related Facts 6. Expert s Report and Opinions 2:320 The Reports Prepared by the Expert 2:321 The Process by Which the Report Was Prepared 2:322 Discovering the Expert s Testimony: Opinions Contained in the Report 2:323 Discovering the Expert s Testimony: Opinions Not Contained in the Report 2:323.1 Practice Tip: Planning Your Trial Cross-Examination 2:324 The Opinions and Factual Basis for the Opinions 2:325 Did the Plaintiff Cause or Contribute to the Collision? 2:326 Knowledge of and Disagreements With Other Experts 2:327 Practice Tip: Testimony From the Expert Supporting Your Theory of the Case 7. Closing 2:340 Closing Questions VI. DEPOSITIONS #4 - #6: THREE MORE THUMBNAIL OUTLINES 2:350 Passenger in the Vehicle of the Driver-Defendant 2:351 Witness at the Scene of an Accident 2:352 Ambulance Driver VII. FORMS Form 2:01 Complaint in a Vehicular-Liability Case (With Reference to Illinois Rules) Form 2:02 Interrogatories in a Vehicular-Liability Case (With Reference to Illinois Rules)

13 F-13 Table of Contents Form 2:03 Requests to Produce in a Vehicular-Liability Case (With Reference to Illinois Rules) Form 2:04 Deposition Notice for an Expert in a Vehicular-Liability Case (With Reference to Illinois Rules) Chapter 3 Premises Liability I. ELEMENTS OF THE PLAINTIFF S CAUSE OF ACTION A. Theories of Recovery 1. General Points 3:01 Premises Liability Is a Form of Negligence 3:02 Caution: Consider the Law of Your Own Jurisdiction 3:03 Practice Tip: Identify the Proper Defendants 2. The Plaintiff s Status 3:10 General Points 3:11 The Invitee 3:12 The Licensee 3:13 The Trespasser 3:14 Children 3. Special Rules 3:20 Special Places 3:21 The Defendant s Status 3:22 Landlord/Tenant 3:23 Municipal Liability 3:24 Actions of Third Parties 4. Evaluating Premises-Liability Cases 3:30 Evaluating Slip-and-Fall Cases 3:31 Caution: Not Every High-Damage Case Is a Good One B. Typical Defenses in a Premises-Liability Case 3:40 Negligence Defenses 3:41 Disproving Plaintiff s Case 3:42 Statutory Limitations and Immunities II. THE DISCOVERY PLAN A. Sequence and Timing 3:50 The Initial Round 3:51 Practice Tip: Photographs 3:52 Requests for Admissions 3:53 Depositions 3:54 Opinions of Defendant s Experts 3:55 Practice Tip: Visit the Scene B. Documents and Exhibits 3:60 General Categories 3:61 Liability Documents 3:62 Practice Tip: Carefully Plan Your Written Discovery 3:63 Damage Documents C. Typical Deponents 1. General Points 3:70 Depositions the Plaintiff Will Take (Rev. 6, 11/12)

14 Deposition Checklists and Strategies F-14 3:71 The Depositions the Defendant Will Take 2. Occurrence Witnesses 3:80 General Points 3:81 Practice Tip: Not Every Potential Witness Needs to Be Deposed 3. Medical Witnesses 3:90 General Points 3:91 Practice Tip: Supporting Your Claim for Damages 4. Experts 3:100 Defendant s Expert Witnesses 3:101 Practice Tip: The Human Factors Expert 3:102 Practice Tip: Two More Experts for Slip-and-Fall Cases III. SAMPLE DEPOSITION: STORE MANAGER IN A SLIP-AND-FALL CASE A. Planning 3:110 Deponents 3:111 Timing B. Goals, Strategy, and Preparation 3:120 Deposition Goals 3:121 Deposition Strategy 3:122 Deposition Preparation 3:123 Deposition Exhibits C. The Deposition Outline 1. Background and Thumbnail Outline 3:130 Background Facts 3:131 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 3:140 Standard Introductory Questions 3:141 The Witness s Background, Including His Employment History With the Defendant 3:142 Practice Tip: Know Why You Are Asking Each Question 3:143 The Witness s Preparation for the Deposition 3. Inspection Program and Practices 3:150 Store Inspection Program 3:151 Practice Tip: Industry Practice 3:152 Store Inspection Practices at Other Stores 3:153 Caution: Laying the Proper Foundation 4. The Occurrence 3:160 Preliminary Questions 3:161 Practice Tip: Open-Ended Questions to Set the Stage 3:162 The Condition of the Store 3:163 Whether Inspections Procedures Were Followed 3:163.1 Practice Tip: Weather Reports in Ice and Snow Cases 3:164 Facts About the Spill 3:165 The Plaintiff s Fall; What the Witness Saw 3:166 The Scene After the Fall 3:167 The Witness s Actions to Aid the Plaintiff 3:168 Practice Tip: Always Be on the Lookout for Facts With Jury Appeal

15 F-15 Table of Contents 5. Admissions 3:180 Use of Marketing Displays 3:181 Practice Tip: Admissions 3:182 Admission: Plaintiff s Status as Invitee 6. Other Witnesses 3:190 Other Witnesses to the Occurrence 3:191 Practice Tip: Offer to Pay Medical Bills 7. Defendant s Response to the Occurrence 3:200 Subsequent Remedial Measures 3:201 Practice Tip: Evidence of Subsequent Remedial Measures 3:202 Discipline of Employees 3:203 Conversations About the Accident or the Lawsuit 8. Defenses 3:210 Practice Tip: Always Ask About Defenses 3:211 Plaintiff s Contributory Negligence 9. Similar Incidents 3:220 Other Similar Incidents 3:221 Practice Tip: Admissibility of Other Incidents 10. Closing 3:230 Closing Questions 3:231 Practice Tip: What to Do at the End of the Deposition IV. SAMPLE DEPOSITION: PLAINTIFF S TREATING PHYSICIAN (PRESERVATION DEPOSITION) A. Planning 3:240 Overview 3:241 Timing B. Goals, Strategy and Preparation 3:250 Deposition Goals 3:250.1 Practice Tip: Motivating Yourself for Trial: Start a Trial Notebook Early 3:251 Deposition Strategy 3:252 Deposition Preparation 3:253 Deposition Exhibits 3:254 Practice Tip: Are You Ready for Trial? A Checklist C. The Deposition Outline 1. Background and Thumbnail Outline 3:260 Background Facts 3:261 Thumbnail Outline/Deposition Checklist 3:262 Practice Tip: Who Should Read the Deposition at Trial? 2. Preliminary Questions 3:270 Standard Introductory Questions 3:271 Practice Tip: Stipulations to Get Before the Deposition Begins 3:272 Educational Background and Licensure 3:273 Practice Tip: Impress the Jury, But Do it Quickly 3:274 Work History 3:275 Professional Publications, Activities, Awards, Etc. 3. Plaintiff s Treatment 3:280 Practice Tip: Reasonable Degree of Medical Certainty 3:281 First Visit 3:282 Practice Tip: How the Plaintiff Chose the Treating Physician (Rev. 6, 11/12)

16 Deposition Checklists and Strategies F-16 3:283 More About Adhesive Capsulitis 3:284 Practice Tip: Proceed Chronologically 3:285 Second Visit 3:286 Third Visit 3:287 Practice Tip: Introduce Scientific Terms Slowly 4. Opinion Testimony 3:300 Causation 3:301 Caution: Magic Words for Opinion Testimony 3:302 Defendant s Contentions as to Causation 5. Damage Testimony 3:310 Past Medical Costs 3:311 Prognosis and the Need for Future Medical Care 3:312 Practice Tip: What if the Doctor Is No Longer Treating the Plaintiff? 3:313 Pain and Suffering, Past and Future 3:314 Disability, Past and Future 3:315 Caution: Make an Emotional Connection 6. Closing 3:320 Closing Questions 3:321 Defendant s Cross-Examination; Plaintiff s Re-Direct 3:322 Practice Tip: Know Your Opponent V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES 3:330 Owner of Laundromat Where Plaintiff Slipped on Ice 3:331 Defendant s Human Factors Expert 3:332 Witness to a Fall in a Store Parking Lot VI. FORMS Form 3:01 Complaint in a Trip-and-Fall Case [Illinois Rules] Form 3:02 Interrogatories to a Corporate Landowner in a Slip-and-Fall Case [Illinois Rules] Form 3:03 Requests for Production to a Corporate Landowner in a Slip-and-Fall Case [Illinois Rules] Form 3:04 Deposition Notice for a Corporate Representative in a Slip-and-Fall Case [Illinois Rules] Form 3:05 Notice to Take Deposition of Defendant s Engineering Expert in a Premises-Liability Case Chapter 4 Products Liability I. THE PRODUCTS LIABILITY CAUSE OF ACTION A. Theories of Recovery 4:01 Definition and General Points 4:02 Strict Liability: General Principles 4:03 Strict Liability: Defective Product 4:04 Strict Liability: Failure to Warn 4:05 Negligence 4:06 Warranty Theories: General Principles 4:07 Express Warranty 4:08 Practice Tip: Don t Neglect an Express Warranty Claim 4:09 Implied Warranty B. Typical Defenses 4:20 Contributory Negligence/Comparative Fault 4:21 Assumption of Risk 4:22 Misuse

17 F-17 Table of Contents 4:23 Statute of Limitations 4:24 Statute of Repose 4:25 Caution: The Changing Nature of the Law of Products Liability II. THE DISCOVERY PLAN A. Sequence and Timing 4:30 Practice Tip: Think About Experts From the Beginning 4:31 The Initial Round of Written Discovery 4:32 Practice Tip: Stay on the Offensive 4:33 Requests for Admissions 4:34 Written Discovery of the Opinions of the Defendant s Experts 4:35 Depositions of Corporate Representatives 4:36 Practice Tip: Testing the Knowledge of Corporate Designees B. Documents and Exhibits 4:50 Liability Documents 4:51 Damage Documents C. Typical Deponents 1. General Points 4:60 Typical Deponents 4:61 The Depositions the Defendant Will Take 2. Liability Witnesses 4:70 Plaintiff s Liability Witnesses 4:71 Defendant s Liability Experts 4:72 Corporate Designee Design and Testing/Marketing 4:73 Marketing Executive 4:74 Sales Representative 4:75 Product Engineer/Designer 3. Defendant s Expert Witnesses 4:80 General Points 4:81 The Government-Standards Expert 4:82 The Engineering Expert 4. Defendant s Expert Medical Witnesses 4:90 Causation 4:91 Damages 5. Defendant s Expert Damage Witnesses 4:100 General Points 4:101 The Defendant s Economist 4:102 The Defendant s Vocational Rehabilitation Expert 4:103 The Defendant s Life Care Planner III. SAMPLE DEPOSITION: CORPORATE DESIGNEE DESIGN AND TESTING A. Noticing the Deposition 4:110 Authority for a Corporate Designee Deposition 4:111 Defendant s Duty to Select the Corporate Representative 4:112 Timing B. Goals, Strategy and Preparation 4:120 Deposition Goals 4:121 Deposition Strategy 4:122 Deposition Preparation (Rev. 6, 11/12)

18 Deposition Checklists and Strategies F-18 C. The Deposition Outline 1. Background and Thumbnail Outline 4:130 Background Facts 4:131 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 4:140 Standard Introductory Questions 4:141 The Witness s Background, Including His Background With the Defendant 3. The Notice and Witness s Preparation 4:150 The Deposition Notice and Areas of the Witness s Knowledge 4:151 The Witness s Preparation for the Deposition 4. Specific Topics 4:160 Design 4:161 Testing 4:162 Practice Tip: Who Does Know? 4:163 Manufacturing 4:164 The Warning Label 4:165 Similar Accidents IV. SAMPLE DEPOSITION: DEFENDANT S CAUSATION EXPERT IN A DEFECTIVE DRUG CASE A. Overview of Defendant s Experts 4:170 Defendant s Experts Are Experienced 4:171 Generic and Specific Liability Experts 4:172 Medical Experts 4:173 Non-Medical Damage Experts B. Goals, Strategy and Preparation 4:180 Deposition Goals 4:181 Practice Tip: Five Keys for Deposing Experts in Products-Liability Cases 4:182 Deposition Preparation C. The Use of Epidemiology in Defective Drug Cases 4:190 Plaintiff s Use of Epidemiology 4:191 Defendant s Use of Epidemiology D. The Deposition Outline 1. Background and Thumbnail Outline 4:200 Background Facts: Fen-Phen Litigation 4:201 Background Facts: This Sample Deposition 4:202 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 4:210 Standard Introductory Questions 4:211 Past Deposition and Trial Testimony 3. The Expert s File Materials 4:220 Identifying the Expert s File Materials 4:221 Identifying the Expert s File Materials, Part 2 4:222 Practice Tip: Establish the Role the Defendant s Lawyer Played in Assisting the Defendant s Expert 4:223 Practice Tip: How to Move Quickly Through the Expert s File 4:224 Practice Tip: Catch the Expert Unprepared (by Finding Out What He Hasn t Read) 4. The Expert s Background and Trial Preparation 4:230 The Expert s CV and Rule 26 List

19 F-19 Table of Contents 4:231 Preparation for the Deposition 4:232 The Expert s Occupation and Work 4:233 The Expert s Areas of Research 4:234 Practice Tip: Asserting Control Over the Witness 4:235 The Expert s Publications 4:236 Practice Tip: Find Out About the Authorities the Expert Consults 5. Past Work as an Expert 4:240 Past Testimony 4:241 Other Expert Work 4:242 Past Work for the Opposing Lawyer 4:243 Past Work for the Defendant 4:244 Practice Tip: Stock Ownership 6. Experience With the Product 4:250 Personal Experience 4:251 Work on the Case 4:252 Practice Tip: When and How Was the Expert Retained 4:253 What the Expert Is Charging 4:254 Preparations to Render an Opinion 4:255 Practice Tip: What the Expert Did Not Do 4:256 Communication With Lawyers About the Case 4:257 Communication With Others About the Case 4:258 Practice Tip: s 7. Terminology and Knowledge of Facts 4:270 Agreement as to Terminology 4:271 Expert s Knowledge of Case-Related Facts 8. The Expert s Opinions 4:280 Report Prepared by the Expert 4:281 Process by Which the Report Was Prepared 4:282 Opinions Contained in the Report 4:283 Opinions Not Contained in the Report 4:284 Practice Tip: Pinning Down the Expert 4:285 Factual Basis for the Opinions 4:286 Caution: You Don t Need to Be Smarter Than the Expert 9. Admissions 4:300 Did the Plaintiff Cause or Contribute to the Injury? 4:301 Questions to Support Damages 4:302 Knowledge of Other Experts 4:303 Practice Tip: Obtain Assent to Learned Treatises 4:304 Other Admissions Supporting Your Theory of the Case 10. Closing and Use of Deposition 4:310 Closing Questions 4:311 Practice Tip: Using the Deposition to Cross-Examine at Trial V. SAMPLE DEPOSITION: DEFENDANT S EXPERT ECONOMIST IN A PRODUCT LIABILITY LAWSUIT A. Setting the Stage 4:320 Overview 4:321 Timing B. Goals, Strategy and Preparation 4:330 Deposition Goals (Rev. 6, 11/12)

20 Deposition Checklists and Strategies F-20 4:331 Deposition Preparation 4:332 Deposition Exhibits C. The Deposition Outline 1. Background and Thumbnail Outline 4:340 Background Facts 4:341 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions 4:350 Standard Introductory Questions 4:351 Past Deposition and Trial Testimony 3. The Expert s File Materials and CV 4:360 The Expert s File Materials 4:361 The Expert s CV 4. The Expert s Professional Background 4:370 The Expert s Educational Background 4:371 The Expert s Work History 4:372 The Expert s Current Job 5. Past Work as an Expert 4:380 Consulting Work as an Expert 4:381 Income From Work as an Expert 4:382 Past Work for the Opposing Lawyer 4:383 Practice Tip: Always Check the Web 6. Work on the Present Case 4:390 What the Expert Is Charging 4:391 When and How the Expert Was Retained 4:392 Overview of the Expert s Work on the Case 4:393 Communication With Lawyers About the Case 4:394 Communication With Others About the Case 4:395 Cross-Reference: Practice Tips From Earlier in This Chapter 4:396 The Expert s Knowledge and Understanding of Case-Related Facts 4:397 Preparation for the Deposition 7. The Expert s Opinions 4:410 Report Prepared by the Expert 4:411 Practice Tip: Videotaping Expert Depositions 4:412 Process by Which the Report Was Prepared 4:413 Opinions Contained in the Report 4:414 Opinions Not Contained in the Report 4:415 Practice Tip: Using Economic Experts in Conjunction With Rehabilitation Experts 4:416 Factual Basis for the Opinions 4:417 Practice Tip: Key Areas to Explore With a Defense Economist 8. Testimony That Supports the Plaintiff s Case 4:430 Questions to Lend Support to Your Own Legal and Factual Theories 4:431 Knowledge of and Disagreement With Other Experts 9. Closing 4:440 Closing Questions VI. SAMPLE DEPOSITION: PHARMACEUTICAL REPRESENTATIVE IN A PRODUCT LIABILITY CASE A. Setting the Stage 4:450 Overview

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