Defendant Malpractice Deposition Advice

Enhance the Defense

Enhance the Defense

Early Planning

The defendant may prepare and present the following agenda upon meeting with defense counsel.

The defendant should review the elements of torts, and their defenses as they apply to the case. The lawyer knows the law. The defendant knows the facts. If the defendant can learn a little law, the defense is enhanced by active preparation. What will be the defenses and the theory of the case?

The theories of the case, the burden of proofs, and their cases are reviewed.

Once these are listed, then the written questioning (interrogatory) may go beyond the routine form questions. What information does the defense want from the plaintiff to support the defenses and the theory of the defense case?

What documents will the defense be demanding, including all medical records of the suicide victim, the records of the family members in the case (for reliable family history, to contradict minimization by the family), any relevant business records, criminal records, employment files, photographs, videos, computer drives, computer accounts and their activities, disks, disk drives. The discovery process is liberal at the beginning of the case as to what is relevant. Fishing expeditions are encouraged by the plaintiff attorney, why not by the defense? This is a review of electronic discovery rules at the Federal level.

The defense should demand admissions of undisputed facts. If there is resistance to admission of settled facts, the defense should seek sanctions against the plaintiff attorney for any costs to establish these.

The defense should demand personal inspection of any objects in the case, weapons, bottles of pills, notes, etc.

The defendant doctor is an expert. The defense should use that advantage to come up with a series of questions about what has to be shown in the defense. The defense should go from big, the policy implications of the case, to little, facts very specific to only this case. These questions may also inspire more demands for records, interrogatory questions, and start preparation for the depositions. The defense should list the questions for any likely witness, fact and opinion witnesses. The expert checklist may help. The failure to produce a "smoking gun" document during discovery may result in a default judgment. Qantum Comm. Corp. v. Star Broad., Inc., 2007 WL 445307 (S.D. Fla. Feb. 9, 2007).

The defense should determine the order of depositions. If someone will reveal something that may be used in someone else's deposition, then the defense should schedule that person first. For example, the defense deposes the family members. The experts may then read the family depositions prior to their testimony. The defense should know what you want to hear from the witness, and seek it out from a list of questions prepared with the help of the expert.

When writing questions for fact witnesses, the defense should use open ended, chatty questions, not knowing what will emerge. For opposing expert witness, should list leading questions to make a specific point. The defense should not allow the expert to lecture about the errors of the defendant. The defense expert should read the writings and prior testimony of the opposing expert, and list opposing expert utterances in support of the defense for the defense attorney. What can be done to disqualify and exclude the expert from the case? If the opposing expert cannot be disqualified, what can be done to impeach this expert?

If is defendant is to be videotaped, the defense should demand that a second camera be placed on the plaintiff attorney. If he gets verbally abusive, starts to bully, to try to embarrass the doctor, or to waste time, the defendant should make the defense attorney send the recording to the judge with a demand for disqualification. Failing disqualification, the defense should demand sanctions for such violation of the Rules of Evidence (FRE 611 (a) or the state equivalent). The aim of the recording is to keep the deposition civil.

As information comes in, the defense should revise this plan.

Deposition Preparation

Please, read the best article on the subject several times prior to any deposition, and bring it to a preparation session with the attorney. Simply Positive: Preparing Witnesses for Deposition, by Sidney K. Kanazawa and Sabina A. Helton.

The most important, new point to me? You are dictating a permanent document open to use by the world. You are not in a conversation.

This article reviews deposition practices at the lawyer level.

Plaintiff attorney tactics that cross the line of unfairness, abuse, and intimidation merit a letter to the judge of the case from either expert or defendant or both. Request such a letter be written by defense counsel. The latter may refuse since the relationship with the client is temporary, that with the plaintiff counsel and judge more ongoing.

1) The lawyers carry very few cases, and have them memorized. They will use trivial facts to embarrass the witness, carrying 1000's of patients with no time to memorize big records. They seek to show, the witness does not know the facts, is not prepared. "You are trying to embarrass me. I will not tolerate that without seeking relief from the judge." For example, they may ask for dates, sequences of events, the names of the parties to the claim. Those facts have not really influenced the expert's opinion.

2) You will not know why they will repeat a question about important, relevant facts, after getting an extra piece of qualification from the witness. If you give the simple, yes, without the qualifying remark on the second request, you have contradicted yourself, and may be impeachable as changing the answer.

3) The plaintiff lawyer will ask leading questions with simple, yes or no answers. He is trying to get the opposing expert to agree to facts supporting his case. These should be listed and prepared for prior to the deposition or testimony with the defense lawyer. One should admit facts, even if they do not support one's side.

Deposition Advice

Here.

Authentication of E-Mail in E-Discovery

Authenticate emails before admission into evidence. On the other, seek to exclude adverse email by arguing against their authenticity, or about their being hearsay, so says the review.