By T. Evan Schaeffer

Deposition Checklists and Strategies

Excerpted from Deposition Checklists and Strategies

Much of the difficulty in deposing the defendant-driver will depend on the personality of the witness: will he be straightforward and honest, knowing that the insurance company will take care of his liability at the end of the day, or will he be defensive and close-mouthed? Or will he be somewhere in between?

It’s your own ability to adapt your questioning style to match the witness’s personality that will determine the outcome of the deposition since the questions themselves are not difficult: there is a standard set of questions to ask the defendant that will apply to most vehicular-liability cases.

These standard questions are listed below. As you review them, imagine ways that you can vary the standard questions according to the particular personality of your witness.

§2:81   Timing

The best way to keep a case moving toward settlement is to stay on the offensive, which means that you will want to depose the defendant-driver as soon as possible. It probably won’t happen, though, at the beginning of the case. First, you will need to obtain answers to the initial round of discovery, as well as any other documents, such as police reports, that you might want to use at the deposition. It is also customary in many jurisdictions that the plaintiff is deposed before the defendant.

[§§2:82-2:89 Reserved]

B.   Deposition Goals, Strategy, and Preparation

§2:90   Deposition Goals

There are primarily three things you will want to accomplish at the deposition of the defendant-driver, as follows:

  • Find out what the defendant’s “story” is—in other words, what will the defendant testify to at trial, while thoroughly testing the story in any area in which it hurts your own case.
  • Get the witness committed to all key facts so that the witness cannot change his or her testimony later.
  • Seek admissions from the defendant that will bolster your own case.

You will be working on these goals simultaneously as you conduct the deposition.

§2:91   Deposition Strategy

Your deposition strategy will be determined by the witness’s personality and manner in answering questions. Typically, you should come across as friendly and non-confrontational, in the hope that this will encourage the witness to volunteer more information than he or she would otherwise.

If the witness reacts with hostility, change your manner accordingly. With the right tone, it will not take long for the witness to realize that you are in the driver’s seat: that you will be asking the questions and that he is duty-bound to answer.

Other general suggestions about deposition strategy can be found in Ch. 1 Deposition Procedures and Strategies.

§2:92   Deposition Preparation

The deposition of the defendant-driver is an important deposition, and you should prepare accordingly by reviewing the entire file. Pay special attention to the following:

  • The petition or complaint and answer.
  • The written discovery, especially the defendant’s answers to your interrogatories.
  • The documents that have been produced in the case.
  • Any other deposition that has been taken in the case.

Even though you may be preparing for the deposition by using the sample questions that follow, it is the unique facts of your particular case, as contained in your case file, that will allow you to modify the sample in a way that best suits your particular needs.

§2:93   Deposition Exhibits

As you prepare for the deposition, gather anything with the defendant’s name or signature that you obtained in discovery—accident reports, formal and informal statements, repair estimates, and the like. You will also need to gather all the photographs.

These are all important documents for preparing the deposition outline, but you may or may not need to actually use them at the deposition. Generally, your first task will be to find out what the witness remembers without refreshing his or her recollection or impeaching him or her with any other documents. In many situations, you will complete the deposition of the driver-defendant without the need to mark any exhibits. An exception is often photographs—you can use the deposition as an opportunity to authenticate the photographs. See §2:141 Condition of the Vehicles After the Collision.

[§§2:94-2:99 Reserved]

C.  The Deposition Outline

1.  Background Facts and Thumbnail Outline

§2:100  Background Facts

In this deposition, the plaintiff is Mrs. Smith, who was injured when her car was rear-ended on the highway on November 1, 2005. The driver who rear-ended her is the defendant in the case, and is being deposed in this deposition. The defendant-driver’s defense is that the car he hit was traveling below the speed limit without its lights on.

§2:101   Thumbnail Outline/Deposition Checklist

For the reader’s convenience, the deposition checklist is summarized in this section in the form of a “thumbnail outline.” Each of the topics is covered in more detail in the sections that follow this one.

  • Preliminary Questions
  • The Witness’s Background
  • The Witness’s Preparation for the Deposition
  • The Witness’s Relationship to Other Parties and Witnesses
  • The Collision:
  • Events Leading Up to the Collision
  • Central Events
  • After the Collision
  • Miscellaneous Matters, If Not Covered Above
  • Defendant’s Activities on the Day of the Collision
  • Fatigue
  • Alcohol and Drugs
  • Driving Experience and Licensure Status
  • Condition of the Deponent’s Vehicle Before the Collision
  • Condition of the Vehicles After the Collision
  • Tickets
  • Plaintiff’s Contributory Negligence
  • Admissions
  • Other Witnesses to the Occurrence
  • Knowledge of Conversations
  • Formal Statements
  • Informal Statements and Interviews
  • Conversations About the Accident or the Lawsuit
  • Photographs and Diagrams
  • Closing Questions

[§§2:102-2:109 Reserved]

2.   Preliminary Questions

§2:110   Standard Introductory Questions

Traditionally, depositions begin by asking the witness to “state his name for the record.” Most lawyers then move on to a standard set of preliminary questions like those in this section. For more about the purposes of the standard preliminary questions in a deposition, see §1:100 Preliminary Questions. In some cases you might want to ask the preliminary questions a little later in the deposition, see §1:102 Practice Tip: Mixing It Up.

Q:   Please state your name for the record.

Q:   Where do you live?

Q:   What is your date of birth?

COMMENT: Asking the witness’s age might help you to recall the witness’s age and appearance later when you or others are reading the deposition without being able to look at the witness.

Q:   Have you given a deposition before?

Q:   On how many occasions?

COMMENT: In this deposition, the primary reason for asking whether the witness has been deposed before is to find out whether he is familiar with deposition procedures. For most witnesses, a deposition is a rare occurrence. If it turns out the witness has past deposition experience, you can preface some of the questions that follow with, “As you know from your past experience . . . .” As explained in §1:100 Preliminary Questions, this will make it easier for you to impeach the witness at trial with his deposition testimony.

If the witness has had prior deposition experience, you should find out the reason. This might reveal past depositions in cases similar to yours. If so, follow up with questions about the name of the case, the court, and the lawyers, so that you can find out more about the case in later discovery.

Q:   I want to tell you some ground rules for this deposition. Is that okay?

Q:   The court reporter is taking down everything we say, so it is important that you answer with words, rather than with a nod or shake of the head. Do you understand?

Q:   To make it easier for the court reporter to record what we say accurately, it’s important that we not talk over one another. For this reason, I ask that you please wait until I have finished my question before answering. Is that okay?

Q:   You understand that you are under oath today?

Q:   And sworn to tell the truth?

Q:   You understand that even though we’re in an informal setting, your testimony has the same force and effect as if we were in front of a judge and jury?

Q:   If you don’t understand one of my questions, please let me know, and I’ll rephrase it. Is that okay?

Q:   If you need to take a break, let me know, and we can take a break. Okay?

Q:   Are you prepared to answer my questions today?

Q:   Is there any reason you won’t be able to give me full, complete and truthful answers to my questions today?

COMMENT: The preceding two questions are designed to prevent the witness from changing his testimony later and claiming, by way of explanation, that he wasn’t fully prepared to give his deposition. The last question also seeks to prevent another convenient excuse for changing deposition testimony: that the witness was taking medication that confused him or impaired his memory. To get right to the point, you can vary the question by asking, “Are you taking any medications or suffering from any illness today that will prevent you from understanding my questions or answering them fully?

The last question is technically objectionable as a “compound question.” You will save time by asking the question in the way that it is printed, but if the opposing lawyer objects, simply break the question into its component parts. If the lawyer does not object to form, the objection to the compound nature of the question will be deemed to be waived.

§2:111   The Witness’s Background

Lawyers taking depositions in vehicular-liability cases often don’t ask witnesses a lot of background questions. But there is no need to speed through a deposition. You need to know something about the witness’s background both as a quick check on the witness’s veracity and as a way of sizing up what sort of person the witness is and how he or she will come across to the jury.

Q:   Please tell me briefly about your education.

Q:   What is the highest level of education you have completed?

Q:  Where did you grow up?

COMMENT: This question will allow you to learn well in advance how the jurors might respond to the witness. For example, if the witness grew up in the county where the matter will be tried, the jurors might warm up to the witness because he is “local.”

Q:   Are you employed?

Q:   Who do you work for?

Q:   What is your title?

Q:   What other jobs have you held in your life?

Q:   Have you ever pled guilty or been convicted of any crime other than a minor traffic violation?

COMMENT: Some lawyers are hesitant to ask this question, which is one of the key questions covered in §1:53 Practice Tip: Ten Things to Cover In Every Deposition. Why is the question important? Depending on the date of the conviction or plea, you might be able to get evidence of past conviction in front of a jury in order to impeach the credibility of the witness. If you are concerned about alienating the witness, you can preface it with something like, “I apologize for asking, but I need to and the rules allow it: Have you ever been convicted or pled guilty to . . . . ”

§2:112   The Witness’s Preparation for the Deposition

You can learn a lot about a witness by finding out how he prepared for a deposition: how seriously the witness took his obligation to testify, whether he was worried about some issues more than others, what documents he considered important enough to look at before the deposition started. In many cases, you will learn that a witness did not do anything at all to prepare for a deposition. If not, you have not wasted any time by asking.

Q:   When did you first learn of this deposition?

Q:   How did you learn about it?

Q:   What did you do to prepare for the deposition today?

Q:   Did you review any documents in preparation for the deposition today?

Q:   What documents did you review?

Q:   Did you have any communications with anyone about your deposition today, other than your lawyers?

COMMENT: If the witness says yes, find out who the witness communicated with and the subject and purpose of the communication. If the witness had conversations with a lawyer who does not represent the witness, ask about those conversations too.

§2:113   The Witness’s Relationship to Other Parties and Witnesses

If the deponent knows any of the witnesses to the collision or any of the parties to the case, their views and later testimony might be colored by their relationship. To uncover such potential biases, you should ask about the deponent’s relationship to witnesses and parties.

Q:   The Plaintiff in this case is Mrs. Smith. Did you know her before the day of the collision?

COMMENT: If the answer is yes, find out how the nature and extent of the relationship before moving on to the other questions in this section. Later in the deposition, you will ask the deponent whether he had any conversations with others about the collision. See §2:165 Conversations About the Accident or the Lawsuit. If the deponent admits to knowing any of the parties or witnesses, you can skip to that section now or save those questions for later.

Q:   The defendants in this case, other than yourself, are Mr. Danis and Mr. Lowe. Did you know either of them before the day of the collision?

Q:   Prior to the day of the collision, did you know anyone who claims to be a witness to the collision?

§2:114   Practice Tip: Putting the Witness at Ease

As you move into the “meat” of the deposition, you might find the driver-defendant is suspicious, defensive, and reluctant to open up to you. If so, it will be easy to understand why: the witness, angry about being sued, has finally come face to face with the lawyer who he blames for the lawsuit. In addition to this, he’s nervous about the way the lawsuit will turn out, and is afraid of making a bad situation worse by saying the wrong thing.

At this point of the deposition, your job is to put the witness at ease. You want to get a detailed, accurate factual account of the collision that you can then translate into short questions and answers in order to pin the witness down. You also need to know the witness’s version of events so that later, after the deposition, you can work at picking it apart piece by piece—that is, if it’s harmful to your client.

How can you get the witness to relax? First, remember to smile. This seems like an obvious point, but many lawyers, a little nervous themselves about having to ask the questions, tense up and come across as being gruff. Second, slow down. Third, think about reciting a canned speech such as this: “Mr. Witness, my goal today is to find out whatever you know about the collision. It’s my only chance to ask you questions, which is why I want to be complete and take my time. I’m not trying to trick you. As I said at the beginning of the deposition, if there’s a question that you don’t understand, let me know and I’ll rephrase it. Okay?”

Since you are only repeating what the defending lawyer has already told the witness, it is unlikely that the defending lawyer will object. If so, work the other lawyer’s objection into the speech: “Your lawyer is right. What I’m saying right now is not technically a question. But I want you to feel at ease. I want you to know I’ll go as slowly as possible to make sure you understand my questions. Okay?”

Of course, every witness is different, and some won’t find you very charming no matter how much you try to sweet-talk them. You will ask a simple question about the collision, and they won’t want to answer it. Instead, they will want to tell you why the collision was not their fault. Don’t resist these answers. You will rarely go wrong in letting a witness volunteer in a discovery deposition. Surprise the witness by telling the witness that you want to hear what he or she has to say about who was at fault. Then let the witness talk. Take careful notes as he or she does, because you will want to follow up later.

[§§2:115-2:119 Reserved]

3.   The Collision

§2:120   Part I: Events Leading Up to the Collision

Your attempt to get the witness’s story of the collision will be much more effective if you remember to ask open-ended questions. This will allow the witness to narrate the story of the collision without the danger that your questions will keep him or her from volunteering information. For more on this point, see §3:161 Practice Tip: Open-Ended Questions to Set the Stage. In the following sections, some of the basic facts of the events leading up to the collision are pinned down. An open-ended question follows at the end of the section.

Q:   You understand we’re here today to talk about a collision that happened on November 1, 2005?

Q:   What were the weather conditions on November 1, 2005, in the area of the collision?

A:   “Clear and dry.”

Q:   Where were you going that day?

A:   “I was driving from my home in Peoria, Nebraska, and my ultimate destination was Springfield, Missouri.”

Q:   What was the purpose of the trip?

A:   “A quick getaway to see some relatives.”

Q:   Who else was with you?

A:   “My wife.”

Q:   There was a mention in the police report of a dog. Did you have a dog in the car?

A:   “Yes, we had our dog with us.”

Q:   At the time of the collision, where was the dog?

A:   “Sitting on my wife’s lap in the front seat.”

Q:   You set out that morning from your home?

A:   “Yes.”

Q:   What time did you leave that morning?

A:   “About 9:30 a.m.”

Q:   How long had you been driving at the time when the collision happened?

A:   “About an hour.”

Q:   Tell me what you recall about the collision?

A:   “Everything from the start to the end?”

Q:   That would be great. Then I’ll go back and ask you some more questions.

A:   “We were driving along in the center lane of the interstate at about 65 miles an hour and happened to notice a fire engine in the prairie over to the right. I glanced over there. It couldn’t have been longer than a second, just glanced over, and then I looked back up to the rearview mirror and then forward and that quick—there was nobody in front of me before, now there was this car right in front of me, probably about 10 or 12 car lengths ahead of me. I remember distinctly saying, ‘Oh, shit,’ slammed on the brakes and was able to slow down substantially before hitting the rear end square. And I remember—probably I had got my car down to 25 or 30 miles per hour. And I remember upon hitting the vehicle in front of me, it just like jumped forward a couple of feet and then it pulled over to the left and I pulled over to the right.”

§2:121   Part II: Central Events

In this section, you will follow up on the witness’s answer to the open-ended question that concluded the last section.

Q:   At the point that you looked up and noticed the car in front of you, were the lights on, if you know?

A:   “I didn’t see any lights.”

Q:   But you did see the car?

A:   “Yes.”

Q:   At the scene, you told a police officer that you thought that the car you hit was only going 5 miles an hour?

A:   “It was damn near stopped.”

Q:   You know that others have testified that it was going at least 45 miles per hour?

A:   “Yes.”

Q:   In light of that, is it still your testimony that the car you hit was only going 5 miles per hour?

A:   “Yes.”

Q:   That’s your estimate made from the driver seat of your car just before the collision?

A:   “Yes.”

Q:   At the time of the impact you think you were going between 25 and 30 miles per hour?

A:   “Yes.”

Q:   Why do you think that?

Q:   What kind of damage was done to your car?

Q:   Did your air bags deploy at the time of the collision?

Q:   Were you wearing your seat belt?

Q:   Was your wife wearing her seat belt?

Q:   Were either of you injured?

Q:   What happened to the dog at the time of the impact?

A:   “The dog ended up on the floor of the front seat in front of my wife.”

Q:   Now, you said that to your right just before the collision, you noticed there was a fire?

A:   “I noticed there was a fire engine.”

Q:   Did you see a fire?

Q:   Did you see smoke?

Q:   How far away was the fire engine?

COMMENT: The more information the witness recalls about the fire, the less likely it makes his testimony that he merely “glanced” to his right.

Q:   Did you see any people?

Q:   What was happening over there on your right.

A:   “It was just a quick glance. I saw a fire truck and that was it.”

Q:   Was it parked or moving?

A:   “It appeared to be parked.”

Q:   Why did it appear to be parked?

Q:   Did you have any conversation with your wife about the fire truck before the impact of the collision?

Q:   How much time passed between the time you glanced over and the point of impact?

Q:   Why didn’t you go to the right or to the left to get around the car in front of you?

§2:122   Part III: After the Collision

In the following questions, the chronological questioning about the collision continues.

Q:   What did you do after the impact?

Q:   What did you do with the dog?

Q:   Could you see what happened to the people in the car that you hit?

Q:   Did you talk to those people?

Q:   Who did you talk to on the scene after the collision?

A:   “The only person I talked to was a police officer.”

Q:   Which police officer?

Q:   Tell me about your conversation with the police officer?

Q:   Have you read his report?

Q:   Is his summary of your conversation accurate?

Q:   Did your wife talk to anyone at the scene of the collision?

Q:   How long were you at the scene?

Q:   What else did you do there, other than what you have already told me about?

Q:   How did you leave the scene of the collision?

§2:123   Practice Tip: Driving Experience and Licensure

Don’t assume that the driver-defendant you are deposing has years of experience as a driver. Find out. If the driver-defendant is a young person, for example, establish that he or she has not had a license for very long or does not have a lot of experience behind the wheel. If you can get this fact admitted into evidence, it will give the jury something else to mull over.

Also make it a habit to find out whether the driver-defendant has ever had any law-related problems with his or her license to drive.

[§§2:124-2:129 Reserved]

4.   Defendant’s Condition on Day of Collision

§2:130   Defendant’s Activities on the Day of the Collision

In §2:120 Part I: Events Leading Up to the Collision, you might have already questioned the witness about the defendant’s activities on the day of the collision. If not, these issues can be covered by the following questions. You will be interested in any facts that indicate the witness was in a hurry at the time of the collision, was under the influence of alcohol or other drugs, or any other facts that would serve as a background for proving negligence.

Q:   What was your destination at the time the collision happened on November 1, 2005?

Q:   Do you remember when you woke up on November 1, 2005?

Q:   Tell me all the other places you went on November 1, 2005, before the collision occurred?

Q:   Did you speak to anyone on November 1, 2005, before the collision?

§2:131   Practice Tip: Estimates of Times

In vehicular-liability depositions, witnesses will frequently testify about how long certain events took to happen. If this testimony hurts your position, ask questions like the following:

Q:   You’ve told us how long you think it took for certain events concerning the collision to happen, is that right?

Q:   You weren’t looking at the second hand of a watch as the events were occurring?

Q:   Those were your estimates of the time that passed?

COMMENT: You can deal similarly with estimates of the speed of the vehicles, e.g., “You couldn’t see the speedometer in the other car? In fact, you’re just guessing about its speed,” and so on.

§2:132   Practice Tip: Establishing Fatigue

It is obviously important to know whether the defendant was fatigued at the time of the collision. But how can you establish that fact? If you ask the witness directly whether he was feeling tired at the time of the collision, he will almost always answer “no.” It is better to elicit testimony about facts that would lead a reasonable person to believe that the defendant was tired. In this way, you will raise an inference of fatigue without having to ask the question directly.

What sort of facts would raise an inference of fatigue? Did the collision happen late at night? Did it happen at a time when the witness was going to work much earlier than was his normal routine? Was there something going on in the witness’s life that made him short of sleep?

You get the idea. In a discovery deposition, you can dig around for facts that will be helpful to your case without having to worry that you are wasting time.

§2:133   Alcohol and Drugs

In section §2:120 Part I: Events Leading Up to the Collision, you might have already questioned the witness about the defendant’s activities on the day of the collision. If not, these issues can be covered by the following questions.

Q:   Did you consume any sort of alcoholic drink within 24 hours of the collision?

COMMENT: If the answer to this question is “yes,” find out what drinks were consumed, in what amount, at what time, and who else was present at the time.

Q:   Did you take any type of medication within 24 hours of the collision?

COMMENT: If the answer to this question is “yes,” find out what medications were consumed, in what amount, at what time, and who else was present at the time.

Q:   Was there a reason your ability to operate a motor vehicle was impaired on November 1, 2005?

[§§2:134-2:139 Reserved]

5.   The Vehicles

§2:140   Condition of the Deponent’s Vehicle Before the Collision

Questions about the condition of the vehicle before the collision will enable you to determine whether the driver’s vehicle had any mechanical problems that might have contributed to the collision. The following can be inserted before this point in the deposition, especially if the issue arises naturally during your questioning about the collision itself.

Q:   Do you service your automobile regularly?

Q:   Where do you service it?

Q:   When was the last time before the collision that you had your automobile serviced?

COMMENT: If you suspect that mechanical problems with the driver-defendant’s vehicle contributed to cause the collision, you can explore those issues at this point. For example, if there is a question as to whether the brakes worked in the defendant-driver’s car, ask about brake servicing, paying special attention to learning where the brakes were serviced, since you can get those records.

§2:141   Condition of the Vehicles After the Collision

The damage done to the vehicles as a result of the collision can be relevant to determining the force of the collision. This damage can be established by repair bills, photographs, and questions posed to the owner of the car—in this case, the defendant-driver. Your questions about the damage to the vehicles, which are set out below, can also be inserted into §2:122 Part III: After the Collision.

Q:   Following the collision, did you look at the Plaintiff’s car?

A:   “I just saw it from the back.”

Q:   What did you see?

Q:   How far away were you?

Q:   You didn’t inspect the Plaintiff’s vehicle closely?

A:   “No.”

COMMENT: This question and answer will make it difficult for the defendant to contradict your own evidence about the damage to the plaintiff’s vehicle later—at least by his own testimony. He has been removed as a witness on the issue of the damage to the plaintiff’s vehicle.

Q:   Are you familiar with the damage to your own vehicle?

Q:   What damage did your car sustain in the collision?

Q:   Did you have the damage repaired?

Q:   Let me hand you what I’ve marked Exhibit 1. Is that a copy of your repair bill?

Q:   On page 2 of that document, does it list the damage your car sustained in the collision?

Q:   The total bill for the repair was $4,234.50?

Q:   What other damage did you car sustain in the collision other than what is listed on page 2 of Exhibit 1?

Q:   I’m handing you what’s been marked Exhibit 2. Is that a photograph of the way your car looked after the collision?

Q:   When was the photograph taken?

A:   A day after the collision.

Q:   Is Exhibit 2 a fair and accurate representation of the way your car looked the day after the collision?

Q:   What damage does it show to your vehicle?

§2:142   Practice Tip: Lack of Damage as Evidence of Negligible Force

When one or both vehicles were not damaged badly in a collision, defense counsel might try to use this lack of damage as evidence that the collision was not severe. You will have to be ready for this argument so that you can counter it at trial. In fact, it is well-established that serious physical injuries can occur even when the vehicles involved in the collision were not seriously damaged. See, e.g., Miller, “Low Velocity Impact, Vehicular Damage and Passenger Injury, “Cranio: The Journal of Craniomandibular Practice,” October 1998. In some jurisdictions, you might be able to find case law that prevents defense counsel from making this argument.

[§§2:143-2:149 Reserved]

6.   Traffic Tickets and Plaintiff’s Negligence

§2:150   Traffic Tickets

In your written discovery, you will have already asked for information about traffic tickets. At the deposition, you can ask about traffic tickets anyway for two reasons. First, it will allow you to double-check the information you received in written discovery. Second, it will allow you to find out what the witness thinks about receiving a ticket. After all, one of the goals of the deposition is to find out the “story” that the defendant-driver might relate at trial, whether it is good or bad for your client. The defendant who has received a traffic ticket often feels the need to point the finger somewhere else, and you can use questions about the traffic ticket as a jumping-off point to further questions about who was at fault. If the defendant-driver blames your client, it is best to find out as soon as possible, so you can find ways of disproving or limiting the driver’s story before trial.

Q:   Did anyone receive traffic tickets stemming from the collision?

Q:   Who received tickets?

A:   “I did.”

Q:   Who gave you the ticket?

Q:   What did the officer say to you about the ticket?

Q:   What did you say in response?

Q:   What was the ticket for?

A:   “Failure to slow.”

Q:   What was the disposition of the ticket?

A:   “What do you mean by that?”

Q:   Did you plead guilty and pay a fine?

A:   “Yes.”

Q:   Do you think you should have received the ticket?

A:   “No. I didn’t do anything wrong.”

COMMENT: The other lawyer might object to this question on the grounds that it presents a hypothetical, calls for a legal conclusion, or calls for speculation, but you can ask the witness to answer anyway. As stated, you are using the answer as a jumping off point to ask questions designed to elicit facts that the witness might have tried to avoid giving you in an earlier part of the deposition. This line of questioning continues in the next section.

Q:   Why not?

§2:151   Plaintiff’s Contributory Negligence

Since one of the goals of the defendant’s deposition is to find out what the defendant’s story will be at trial, you should make sure you find out everything the defendant contends that the plaintiff did wrong. By this point in the deposition, you might already know the answer to this question. In this section, you’ll follow up to make sure, and then close the door to additional contentions of contributory negligence.

Q:   Earlier in the deposition, you said that the Plaintiff was driving too slowly on the highway and didn’t have his lights on. Do you remember that testimony?

Q:   What else did my client do wrong, if anything?

A:   “The accident happened in the center lane. The Plaintiff was driving slowly. He should have been in the far right lane.”

Q:   So you’re saying that the Plaintiff was driving in the wrong lane?

A:   “Yes.”

Q:   Other than driving too slowly, failing to have his lights on, and driving in the wrong lane, is there anything else that the Plaintiff did that you think contributed to the collision?

Q:   Other than driving too slowly, failing to have his lights on, and driving in the wrong lane, do you have any other criticisms of the Plaintiff?

[§§2:152-2:159 Reserved]

7.   Admissions, Witnesses, and Statements

§2:160   Admissions

Think of an admission as testimony from the defendant that you will want to use in your opening statement or closing argument. As used here, “admissions” can be testimony from the defendant that will help you prove the facts on which your case rests, will put your case in a better light, or will help you to flesh out the “story” of your case.

You will become aware of potential admissions as you look through the file to prepare for the deposition. Imagine, for example, that the notes of your conversations with your client reveal that the defendant apologized to your client shortly after the accident. This is a helpful admission. Or imagine that the police report contains a statement from the defendant that the impact was severe and did extensive damage to your client’s car.

You might cover these sorts of helpful admissions at many points in the deposition. However, if they don’t come up naturally, I like to wait to ask about admissions until the end of the deposition. The reason is because in the process of trying to pin the witness down on admissions, you will often put the witness on the defensive. When the witness is on the defensive, he or she will be less receptive to your questions. It is better that this happens at the end of the deposition.

In the case on which this deposition is based, the defendant is claiming that he did not see the car he rear-ended because it did not have its lights on. Testimony by the witness that the collision occurred at dusk before many other drivers had turned on their lights is an admission that is helpful to the case.

Q:   When the collision occurred, was other traffic on the highway?

Q:   The traffic was moving in both directions?

Q:   You observed traffic in the five minutes before the collision?

Q:   Many of the vehicles that you observed did not have their lights turned on?

COMMENT: From the testimony of others, including you client, your know that the sun had not yet set and that many cars did not have their headlights on. At this point, the witness might know where you are heading with the question. He will want to answer that all of the other vehicles had their headlights on, but then he is obviously exaggerating. Every possible answer might be good for you: that he specifically recalls that all the traffic had the lights turned on (you can show this is an obvious exaggeration), or that much of the traffic did not have its lights on (which undercuts his testimony that he hit your plaintiff’s vehicle because the lights were off), or that he does not recall one way or the other (which takes him out as a witness on this point, allowing your client to testify that it was not dark enough to require lights, although he had his on anyway).

§2:161   All Witnesses to the Occurrence

Eyewitnesses are critical to vehicular-liability cases. Although you will already know about most or all of the witnesses by the time you depose the defendant-driver, you should question the witness about other witnesses to make sure your information is correct and up-to-date.

Q:   Who are the witnesses to the collision, to your knowledge?

A:   “Just me, my wife, the Plaintiff, and the guy who was listed in the police report.”

Q:   That was Mr. Simon?

A:   “Yes.”

Q:   Other than you, the Plaintiff, and Mr. Simon, are you aware of any other witnesses to the collision?

A:   “No.”

§2:162   Knowledge of Conversations

If the defendant heard your client make comments about the collision or the lawsuit, those comments might be admissible at trial against your client as a statement of a party-opponent. At this point in the deposition, you might know what these statements are, but it always advisable to ask a catch-all question to make sure.

Q:   A little earlier, you said that you did not speak to my client at the scene of the collision?

A:   “That’s right.”

Q:   Have you spoken to my client at any other time?

A:   “No.”

Q:   On the day of the collision, did you overhear my client say anything?

A:  “I saw him speaking to the police officer.”

Q:   Did you hear anything that he said?

A:   “No.”

Q:   Is it correct that you’ve never heard any comments made by my client?

A:   “That’s correct.”

§2:163   Formal Statements

A formal statement is one which can be used later to impeach a witness. It might take the form of a transcription of a recorded interview. It might also be a written summary of an interview that the witness then reviews and signs as being true and correct. In any event, there is always a record of a formal statement.

Since your initial round of discovery will have been completed by the time you take the defendant’s deposition, you should know whether or not the witness gave any formal statements. Even so, to be thorough, you should ask again at the deposition about formal interviews. If the witness gave a statement that you have in your possession that contains the witness’s signature, you can ask the witness to authenticate the signature.

Q:   On November 25, 2005, you gave a statement to an insurance investigator, is that right?

A:   “I’m not sure what the date was.”

Q:   Let me hand you what’s been marked as Exhibit 3. Can you tell me what that is?

A:   “It’s a copy of a statement I gave.”

Q:   And you signed it on what date?

A:   “November 25, 2005.”

Q:   Is that your signature on that document?

A:   “Yes.”

Q:   When you gave that statement, were you being truthful?

A:   “Yes.”

Q:   Did you at any time other than November 25, 2005, give someone an account of what happened on the day of the collision?

A:   “No.”

Q:   You haven’t given any statements other than the one we’ve marked Exhibit 3?

A:   “No.”

§2:164   Informal Statements and Interviews

You should follow up your questions about formal statements with questions about informal statements and interviews. If the defendant testifies about any, get enough details that you can follow up with written discovery.

Q:   Setting aside questions from your own lawyer, and other than the formal statement you told me about, has anyone interviewed you about what happened on the day of the collision?

A:   “Yes, the police officer at the scene.”

Q:   That’s the police officer who wrote the accident report?

A:   “Yes.”

Q:   Other than your own lawyer, the investigator from the insurance company who took your statement, and the police officer at the scene, has anyone else interviewed you about what happened on the day of the collision?

A:   “No.”

§2:165   Conversations About the Accident or the Lawsuit

Why ask the defendant-driver about casual conversations about the accident or the lawsuit? It’s another step in taking a thorough deposition—in asking the question, you might turn up facts that you did not know before. It might turn out, for example, that the defendant-driver has spoken with witnesses to the collision. If so, you will want to find out the reason for the conversation, when it took place, and what was discussed. This sort of evidence creates the impression that the defendant-driver is attempting to control the outcome of the litigation behind the scenes, an impression that might be useful to you at trial.

Q:   Other than the people you have already told me about in the deposition today, have you had any conversations with anyone else about the collision or this lawsuit?

A:   “Yes, I talked about the accident with my wife.”

Q:   What was it about the accident you discussed with your wife?

A:   “Just what happened, same as I told you. The sorts of things a husband tells his wife.”

Q:   Other than your wife and the other people you’ve told me about today, is there anyone else with whom you’ve discussed the collision or the lawsuit?

A:   “No.”

Q:   Have you talked to anyone who claims to be a witness to the collision?

A:   “No.”

[§§2:166-2:169 Reserved]

8.   Closing

§2:170   Photographs and Diagrams

The following questions are designed to discover the existence of photographs or diagrams relating to the collision or its aftermath. If you have covered these issues sufficiently in your written discovery, you can omit these questions.

Q:   Your attorney has given me 14 photographs that were taken of your car after the collision. Let me hand you these to look at. Have you seen them before?

A:   “Yes.”

COMMENT: Unless the case involves a number of photographs and you think there might be some confusion later about which ones the witness is identifying, it is not necessary to mark the photographs, since all you are doing is laying a foundation to find out whether other photographs exist.

Q:   Other than the fourteen photographs that I just handed you, are you aware of any other photographs relating to the collision of November 1, 2005?

A:   “No.”

Q:  Other than the diagram contained in the police report, have you seen or reviewed any other diagrams relating to the collision of November 1, 2005?

A:   “No.”

§2:171   Closing Questions

At this point in the deposition, you should review your notes, as well as any notes you made while the witness was answering, and make sure that you have followed up on all the answers that the defendant gave in response to your questions. Ask to take a break and do not rush yourself. This will be your last opportunity to question the defendant before trial.


T. Evan Schaeffer 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. Mr. Schaeffer’s publications include articles and essays in many newspapers and magazines, including the Chicago Tribune, the Houston Chronicle, theSt. Louis Post-Dispatch, and theIllinois Bar Journal. Mr. Schaeffer also publishes two weblogs, The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.  Mr. Schaeffer is the author of Deposition Checklists and Strategies, from which this article is excerpted.