Auto accidents, premises liability, medical malpractice, product liability, residential mold, land use, and damages.

By Daniel P. Dain

How to Prepare for, Take and Use a Deposition

Excerpted from How to Prepare for, Take and Use a Deposition

To this point, your preparation has included a review of the pleadings and applicable law, a review of prior discovery, both formal and informal, and discussions with your client and cooperative witnesses. You are now in a position to prepare your inquiry.

There is no single approach to preparing an examination. Depending upon your nature, style and experience, your approach will vary. Some lawyers carefully write out many of their questions and others write little or nothing at all. Most will at least outline subject areas to cover in the examination. Experience shows that notes are crucial for the beginning examiner, if not for every examiner.

Here are a few generalizations about your preparation of notes for a deposition: first, your notes should help you organize your thoughts and provide a checklist for your questions. Do not write out your questions unless the deposition or the wording of a particular question is critical. Second, do not become tied to your notes. Too often, an inexperienced examiner fails to hear what the witness has said and fails to ask follow-up questions. Third, use your notes to provide you with additional security, so that you will feel free to take detours as new possibilities arise during your examination. Knowing that you have a checklist of points which must be covered frees you to focus your attention on the witness and to take advantage of unexpected testimony. You can return to your notes when you exhaust a particular avenue of questioning.

§472   Order of the Deposition Proceedings

Generally, the deposition process occurs as follows:

  • Notice of deposition is provided to the reporter so that he will have the caption of the case for the transcript, and the identity of the lawyers for the parties.

  • Exhibits are given to the reporter for marking, if exhibits are going to be marked in advance rather than as used.

  • The reporter swears in the witness.

  • If the deposition is taken pursuant to a court order, the order may be marked as an exhibit and made part of the record. Similarly, some lawyers like the notice of deposition or subpoena marked and made a part of the record.

  • Any stipulations concerning the deposition that have been agreed upon by the parties are stated for the record. Discussion of proposed stipulations normally should be off the record. At last, the examination can begin.

A deposition, in most instances, is not a rigidly defined procedure—and you should not allow it to become rigid. As earlier discussed, notes are not a road map, but rather a checklist. Nevertheless, you should have a pre-defined organization for the deposition, subject to being continuously redefined and reorganized throughout the deposition.

The most common organization of questions for a deposition are:

  • Chronological—examination of the witness in chronological order of events and occurrences.

  • Subject matter—examination of the witness as to each relevant subject matter. Within each subject matter, the organization is usually chronological.

  • Allegations of the complaint—some examiners representing defendants like to approach depositions in terms of the complaint—exhaust the knowledge of the witness concerning each allegation, in order thereof.

  • Documents—Some depositions can be effectively organized by the documents. Documents in turn can be organized chronologically; by plaintiff, defendant or witness file, or by subject matter.

  • Persons—Some depositions lend themselves to organization by person—question the witness as to relevant knowledge or activities of each person involved in the subject matter.

Of course, some examiners prefer a disorganized approach, with the hope that the witness will not be able to anticipate where the questions are going or what his prior answers were.

Again, the primary importance of organization is: (1) to create a clear deposition, in case you need to use it at trial; and (2) to cover everything that you desire to cover.

§473   Sample Outlines: Checklist

For substantive areas of the examination, your outline will have to fit the facts of your case. The level of specificity or detail required will depend upon many factors including your own experience, personal preferences and the complexity of the case. Sample outlines for examinations on a few very select topics follow.

Obviously, these examples are not meant to be exhaustive either in detail or in subject area. They do, however, illustrate the type of organization and comprehensiveness with which you should approach all depositions. You will have to break down the major subject areas above even further, depending upon the facts of a given case. For example, in a breach of contract action, one meeting may be of critical importance. That one meeting may warrant a detailed examination and, therefore, a detailed checklist in your outline, such as:

A.      Where held

B.      When

1)        Exact location

C.      Who present

1)        Meetings conducted the entire time

2)        Meeting conducted by phone

3)        Positions of each person

D.      Who called the meeting

E.       Purpose of meeting

1)        Why each person present was in attendance

F.       Chronologically, what each person said and did

G.      Who took notes

H.      What documents did you and others have

I.       Conclusions of the meeting

Often, you will be involved in cases in which your outline or checklist must include elements of the case. Certain cases, such as trade secret appropriation, RICO, defamation, or interference with contract, have distinct and technical legal requirements which must be proven or disproven and must, therefore, be covered in the depositions. If you do not fully explore the legal requirements for such cases in the salient depositions, you will neither be able to withstand nor support any dispositive pretrial motions. In those cases, you must weave into your outline not only the facts and documents, but also the legal issues.

For example, in a case involving inducement of breach of contract, you will not only want to fully explore all of the facts and documents giving rise to the dispute, but you will want to cover the following legal points in your deposition:

  • The admission or proof of the preexistence of a valid contract;

  • Defendant’s knowledge of or assumption of the existence of a valid contract;

  • Defendant’s intention to induce a breach of contract;

  • Defendant’s knowledge of contract breach;

  • Defendant’s causal connection with contract’s breach.

§473.1   Outline for Deposing the Plaintiff —Automobile Case

A.   Liability

I.   Scene of the Occurrence

Description of roads involved

—   direction, i.e. east, west

—   number of lanes

—   curbs, driveways

—   pavement markings, i.e. centerlines, turn arrows

—   composition, i.e. asphalt, concrete

—   artificial lighting

Signage

—   posted speed limit signs

—   posted traffic control signs, i.e. stop, yield,

—   traffic control devices, i.e. stop lights, flashing red light

Post-occurrence changes to scene

—   new lights, signs or pavement, etc.

II.   Road Conditions

Weather

—   temperature

—   raining, snowing, sunny

Road surface

—   wet, damp, dry

Visibility

—   clear

—   foggy, snowy, rainy

Distractions

—   construction activities

—   detours

Traffic volume

—   light, heavy

—   congested

III.   Vehicles Involved

Description of vehicles

—   make, model

—   color

Mechanical condition

—   recent maintenance or repair

—  brakes functioning

—   headlights

—   turn signals

—   tires, i.e. old, new

Ownership

—   registration

—   owned by plaintiff

—   if non-owned, identify owner

—   insurance

IV.   Description of Occurrence

Pre-impact conduct of plaintiff

—   road traveling

—   direction traveling

—   general speed

—   traffic conditions

First observation of defendant’s vehicle

—   distance away of defendant vehicle

—   direction of travel of defendant vehicle

—   estimate of speed of defendant vehicle

—   traffic control light color

Point of impact

—   portion of defendant vehicle which struck plaintiff’s vehicle

—   portion of plaintiff vehicle which was struck

—   location of impact on the pavement, i.e. lane

V.   Post Occurrence Physical Evidence

Resting points

—   location of defendant vehicle

—   location of plaintiff vehicle

—   location of debris

Damage to vehicles

—   location and type of damage

—   skid marks

Subsequent plaintiff vehicle repairs

—   location

—   cost

VI.   Witnesses

Occurrence

—   passengers of vehicles involved

—   third party vehicle operators or passengers

—   third party bystanders

Post-occurrence

—   police officers

—   paramedics

—   third party vehicle operators or pedestrians

VII.   Conversations

Between plaintiff and defendant

—   statements made by each person

—   who present

—   where said

By defendant to others

—   statement made

—   to whom

—   who present

—   where said

§473.2Outline for Deposing the Defendant—Automobile Case

A.   Liability

I.   Background

Experience as driver

—   age

—   date of licensure

—   suspensions or revocations

—   restrictions to license, i.e. eyeglasses

—   general health

—   physical impairments to mechanical operation of vehicle

II.   Scene of the Occurrence

Description of roads involved

—   direction, i.e. east, west

—   number of lanes

—   curbs, driveways

—   pavement markings, i.e. centerlines, turn arrows

—   composition, i.e. asphalt, concrete

—   artificial lighting

Signage

—   posted speed limit signs

—   posted traffic control signs, i.e. stop, yield,

—   traffic control devices, i.e. stop lights, flashing red light

Post-occurrence changes to scene

—   new lights, signs or pavement, etc.

III.  Road Conditions

Weather

—   temperature

—  raining, snowing, sunny

Road surface

—   wet, damp, dry

Visibility

—   clear

—   foggy, snowy, rainy

Distractions

—   construction activities

—   detours

Traffic volume

—   light, heavy

—   congested

IV.   Vehicles Involved

Description of vehicle

—   make, model

—   color

Mechanical condition

—   recent maintenance or repair

—   brakes functioning

—   headlights

—   turn signals

—   tires, i.e. old, new

Ownership

—   registration

—   owned by defendant

—   if non-owned, identify owner

—   insurance

V.   Description of Occurrence

Pre-impact conduct of defendant

—   road traveling

—   direction traveling

—   general speed

—   traffic conditions

Visibility

—   no obstructions to view of traffic, windshield clear

Intention

—   direction of vehicle planned, i.e. left turn

First observation of plaintiff’s vehicle

—   distance away of plaintiff vehicle

—   direction of travel of plaintiff vehicle

—   estimate of speed of plaintiff vehicle

—   traffic control light color

Point of impact

—   portion of defendant vehicle which struck plaintiff’s vehicle

—   portion of plaintiff vehicle which was struck

—   location of impact on the pavement, i.e. lane

Braking

—   when first applied before impact

—   distance when applied from plaintiff’s vehicle or other object, i.e. intersection, stop light

Speed

—   before brakes applied

—   when brakes applied

—   immediately before impact

—   at impact

VI.   Post Occurrence Physical Evidence

Resting points

—   location of defendant vehicle

—   location of plaintiff vehicle

—   location of debris

Damage to vehicles

—   location and type of damage

—   skid marks

Subsequent defendant vehicle repairs

—   location

—   cost

VII.   Witnesses

Occurrence

—   passengers of vehicles involved

—   third-party vehicle operators or passengers

—   third-party bystanders

Post-occurrence

—   police officers

—   paramedics

—   third-party vehicle operators or pedestrians

VIII.   Citations

Citations issued under applicable motor vehicle code

—   type of violation

Disposition

—   plea of guilty

IX.   Conversations

Between plaintiff and defendant

—   statements made by each person

—   who present

—   where said

By defendant to others

—   statement made

—   to whom

—   who present

—   where said

By plaintiff to others

—   statement made

—   who present

—   where said

§473.3Outline for Deposing Eyewitness—Automotive Liability Case

I.   Background

—   Have driver’s license?

—   Prior criminal convictions?

—   Prior crimes involving dishonesty?

Relationship to parties involved?

—   friend

—   co-employee or superior

Physical impairments?

—   eyesight

—   corrective eyewear

—   hearing

—   hearing aid devices

II.   Witness Statements

Did you make a formal statement?

—   to whom, i.e. investigator, insurance adjustor, attorney, etc.

—   where made?

—   who present?

—   photographs or documents shown before statement

What did interviewer tell you before statement taken?

—   was a particular version of accident described?

—   were any of your observations corrected or disputed?

—   were you given anything of value, i.e. bought lunch, paid for time off work?

—   were you threatened with a subpoena if you did not cooperate?

Was statement oral or written?

—   have you ever reviewed it?

—   is it in your handwriting?

—   did you sign statement?

Do you wish to make any changes or corrections to statement?

—   ask witness to read

—   if so, what changes?

—   make witness write changes directly on statement document and initial

III.   Conversations with a Party or Attorney for Party

Have you spoken to one of parties involved or his attorney?

—   when?

—   what were you told?

—   did interviewer takes any notes?

—   was a particular version of accident described?

—   were any of your observations corrected or disputed?

—   were you given anything of value? (bought lunch, paid for time off work, etc.)

—   were you threatened with a subpoena if you did not cooperate?

Were you told not to speak to anyone about occurrence?

—   when?

—   by whom?

IV.   Police Reports

Are you listed on police report for incident?

—   if yes, then what did you describe?

—   did officer write down any information you gave?

—   if no, did you leave scene or avoid speaking to officer?

—   why not listed on police report as witness?

V.   Familiarity with Scene

General description of scene

—   streets involved

—   pavement type, i.e. asphalt, concrete

—   street markings, i.e. lane dividers, crosswalks, etc.

—   lane widths

—   distances

—   traffic controls

—   posted speed limits

Prior and subsequent visits to scene

—   how often were you at scene before occurrence?

—   proximity of scene to your work or residence?

—   how often were you at scene after occurrence?

—   did party or his agent visit scene with you?

—   if yes, did you measure any distances?

—   did you inspect any pavement locations?

VI.   Occurrence Observed

Your location during occurrence? (i.e. pedestrian, in other vehicle)

—   distance from each vehicle when first observed?

—   distance from occurrence at impact?

Speed of vehicle(s)?

—   estimate speed of each vehicle when first observed

Position of vehicle(s) (or injured pedestrian)?

—   exact location on pavement when first observed each vehicle

—   relation to landmarks, i.e. driveway, traffic sign

—   direction of travel

—   lane of travel

Position of impact?

—   exact location of each vehicle (or pedestrian) at impact

—   direction of travel

—   lane of travel

Were evasive maneuvers attempted?

—   swerving or turning?

—   brake lights activated before impact?

—   horns sounded?

Vehicle speed at impact?

—  estimate of speed of each vehicle

—   (speed of pedestrian, i.e. walking, running)

Impact points of each vehicle?

—   position on each vehicle of first contact?

—   secondary contacts?

Post impact observations?

—   distance each vehicle traveled after impact?

—   direction each vehicle traveled after impact?

—   rest point location of each vehicle?

—   movement of vehicles after coming to rest?

Physical evidence of occurrence observed

—   skid marks, including distance and direction

—   impact debris from vehicles, including location

—   motor oils, grease, etc. found on pavement

—   impact points on pavement

VII.   Post-Occurrence Events

Admissions made by a party

—   to whom said?

—   who present?

—   what said?

Injuries observed

—   who?

—   what physical signs of injury were observed?

§473.4Outline for Deposing Plaintiff—Premises Liability Case

I.   Background

II.   Prior Familiarity with Premises

Where did fall occur?

—   Generally describe location

Had you been to location before?

—   How often in that area?

—   What brings you to area?

—   Do you always follow same route or path?

—   Were there other routes or paths available to you?

Had you experienced difficulty walking in area before day of fall?

—   describe difficulties

—   describe condition of premises

Did you know or observe a dangerous condition on prior occasions?

—   describe condition, i.e. shape, depth or size of hole in walkway

III.   Conditions Caused by Plaintiff

Clothing worn at time of fall?

—   Describe shoes fully

•   soles—new, old, composition of soles such as leather, plastic, rubber

•   heals—low, high, flats

•   where are shoes today?

—   Eyewear—prescription lens, sunglasses

—   Long scarves

—   Heavy or bulky purses

Impairments

—   Any medications ingested that day or within 24 hours—describe medications

—   Any alcohol consumed that day or within last 8 hours—describe type, amount, etc.

—   Any physical limitations to walking—limp, use a cane, etc.

IV.   Slip, Trip or Fall Event

Condition of walking surface immediately before injury

—   Weather, i.e. rain, snow or ice

—   composition of walking surface, i.e. gravel, asphalt, concrete, wood, linoleum, stone tile, etc.

—   foreign substances, i.e. oil, grease, mop water, food, garbage, etc.

Mechanism of fall

—   What were you doing at time of fall, i.e. running, walking

—   Where were you looking at time of fall?

—   Did you see condition that caused your fall before it happened?

•   If yes, did you have time to avoid condition?

•   If no, why were you not able to see?

—   Describe fall

•   Which foot slipped or tripped

•   What part of foot involved, i.e. heeled slipped, toe snagged, etc.

—   Describe how body landed

•   part of body that contacted surface first, i.e. knees, palms, head, etc.

•   resting position of body post occurrence, i.e. direction pointing, body facing up or down

V.   Defective Condition

Describe defective or hazardous condition

—   Was it a foreign substance? If yes, describe substance—oil, grease, garbage, food

—   Was walking surface damaged or in disrepair? If yes, describe, i.e. hole, crack, loose stair. Measurements, i.e. depth, size etc.

—   Was there any natural accumulation of snow, ice or water overlying defective condition?

Describe location of condition

—   distance from fixed objects such as doors, sidewalks, streets, etc.

VI.   Witnesses

Eyewitnesses

—   name, address

—   what did they see

—   conversations with witnesses about what they saw

Post-occurrence witnesses

—   police officers

—   paramedics

—   others

VII.   Post-Occurrence

Did you return to scene? If yes,

—   describe condition of premises

—   describe whether alleged defect was same or changed, i.e. repaired or removed

—   describe any investigation conducted by you, i.e. photographs, measurements

Did you make any reports or complaints? If yes,

—   when, where, to whom, nature of report or complaint

—   conversations with others about incident

VIII.   Medical Care and Treatment

IX.   Lost Income

X.   Nature and Extent of Disability and Disfigurement

§473.5Outline for Deposing Defendant Owner or Occupier—Premises Liability Case

I.   Ownership of Premises

—   deeds and purchase contracts for premises

—   have witness acknowledge legal ownership or title to premises

II.   Possession or Control of Premises

Leases

—   identify written lease for premises

—   identify landlord and tenant

—   have owner or occupier (i.e., tenant or contractor) acknowledge lease and signature to lease

—   review lease provisions regarding who is responsible for maintenance or repairs of premises

—   identify all names and addresses of all persons who perform maintenance and repairs, i.e. janitors, handymen

—   determine any independent third party who may be responsible for maintenance or repairs, i.e. rental agent, janitorial service, etc.

Common areas

—   if defect involves common area such as hallway, stairway, etc., then

•   have witness identify common way involved

•   establish that landlord or tenant has responsibility for area under lease or custom and practice

Post-occurrence repairs or changes

—   If defendant’s possession or control is disputed, determine

—   did defendant repair area he claims not to be under his control?

—   did defendant direct or request others to repair area he claims not to be under his control?

—   did defendant pay for repair (request receipts)?

III.   Notice of Defective Condition

—   Before questioning witness regarding notice, establish location and defect in question. Specifically,

—   pinpoint exact location of defect

—   establish that location of defect is area under defendant’s possession and control

—   generally describe defect

—   have witness acknowledge that he understands nature of defect complained of

—   identify and mark photographs depicting exhibits

—   have witness acknowledge that he sees alleged defect as shown in photographs

Actual knowledge of defect

—   Were you aware that alleged defect existed before plaintiff’s injury?

If yes,

—   how did you became aware of alleged defect?

—   how long were you aware of it?

—   were any steps taken to remedy it?

—    did you receive any oral or written complaints about it?

—   have you had any prior claims or law suits concerning it?

—   have you received any building ordinance citations concerning it?

Constructive knowledge of defect

—   If witness denies actual knowledge of defect, then try to establish that witness should have known about defect as follows:

—   Use of premises

•   walks or works in area of premises involved and could observe defect involved

—   Maintenance of premises

•   cleans area involved, i.e. vacuum, sweep, shovel snow and has opportunity to observe defect

—   Repairs to premises

•   performed repairs in vicinity of defect and should have observed defect

—   Inspections

•   checked condition of building, i.e. rain gutters, roof, stairs, etc. and should have observed defect

IV.   Defect

—   Does witness agree that alleged defect could be a hazard and should be remedied?

—   If witness denies that alleged defect constituted a hazard, then identify every reason that not a hazard

§473.6Outline for Deposing Defendant City’s Superintendent of Streets—Premises Liability Case

I.   Background

—   Job title

—   years employed

Duties

—   maintenance of City streets and sidewalks

—   repair of City streets and sidewalks

—   inspection of City streets and sidewalks

—   sanitation disposal

—   traffic control operation systems

Prior experience

—   job titles, including years held

—   duties

II.   Actual Notice of Alleged Defect

Schedule of inspections

—   inspection routines, e.g. 30 days, 6 months

—   names of inspectors

—   inspection criteria

—   types of reports made

—   retention of reports

Prior inspections of subject location

—   if subject defect not noted, why missed?

Citizen complaints

—   Record of complaints

—   type of reports documenting complaints

—   where maintained?

—   how indexed?, e.g. by street address

—   requirements for making report

City self-reporting of hazards

Departmental cross reporting of complaints

—   Dept. of Police

—   Dept. of Sanitation

—   Dept. of Traffic Control Maintenance

—   procedure for routing of reports

—   City policies for employees reporting observed defects

—   when last inspected before occurrence

—   report made

—   defects noted (missing manhole cover, pothole, etc)

—   was subject defect noted?

III.   Constructive Notice of Alleged Defect (City Employee Presence of Subject Street)

Prior maintenance of street

—   type, e.g. street sweeping, repainting of pavement markings, etc.

—   when last performed in proximity to date of occurrence

—   names of City personnel involved

—   requirement that City personnel report defects observed

—   explanation for why not reported

Prior services performed adjacent to street

—   type, e.g. trash removal, fire hydrant flushing

—   how often performed?

—   names of City personnel involved

—   proximity to defect involved

—   opinion: is defect observable while performing this service?

IV.   Subject Defect

Identify

—   pinpoint exact location of defect

—   establish that location of defect falls is area under possession and control of City

—   generally describe defect

—   have witness acknowledge that he understands nature of defect complained of

—   identify and mark photographs depicting exhibits

—   have witness acknowledge that he sees alleged defect as shown in photographs

Hazardous nature

—   Does witness agree that alleged defect could be a hazard and should be remedied?

—   Is this type of defect, i.e. pothole in street, that he would order repaired if knew existed?

—   If witness denies that alleged defect constituted a hazard, then identify every reason that not a hazard

V.   Post-Occurrence Repair of Subject Defect

Was defect repaired?

—   why or why not?

—   type of repair performed

Process for repair

—   notice of this occurrence?

—   independent repair?

—   time necessary to repair

If repaired earlier, then agree that occurrence, e.g. trip and fall in sidewalk hole, would not have occurred?

§473.7   Outline for Deposing the Defendant Physician—Medical Malpractice Case

I.  Qualifications

Medical school attended

—   years attended

Residencies performed in a particular specialty

—   where

—   what years

Fellowships

—   what specialty

Board certifications

—   area of specialty

—   number of times took board examinations

—   if taken more than one time, why failed

Special expertise, training, experience or interest in area of medicine at issue

—   make and describe special qualifications

Written or published any literature applicable to the medical issues involved

—   why written

—   research used

—   peer reviewed

Given any lectures, presentations or seminars applicable to the area of medicine involved

—   state subject matter

—   research performed

—   medical literature and texts consulted or relied upon for

Teaching and academic appointments

—   taught the diagnosis, care or treatment of the medical condition involved in the present case

Private practice

—   how long

—   define patient population, e.g. adult cardiac patients

—   number of patients treated for the same or similar condition as present case

—   any prior patients with the same outcome

Hospital staff privileges

—   any disciplinary proceedings, suspensions or temporary revocations

Medical publications which regularly reads or subscribes

II.   Agency/Employment

a.   Actual agency or employment

—   name of private employer, i.e. corporation or practice group

—   name of managed care organization—staff employee or independent physician

—   number of years employed

—   full time or part time

b.   Apparent agency or employment

—   physician who works in managed care clinic or hospital setting

—   who pays salary

—   who dictates hours of practice,

—   who selects patients referred to you

—   who receives patient payment for services

—   any disclosure that actually independent contractor physician, e.g. consent forms or uniform

III.   Medical Literature Reviewed by Defendant for the ­Deposition

Identify each article, textbook or other writing reviewed

—   agree or disagree with literature reviewed

—   familiar with same literature before saw plaintiff in this case

—   actually read literature identified before care and treatment to the plaintiff

—   statements contained in literature which defendant relied upon for course of care and treatment

—   literature authoritative.

IV.   Medical Records Created by the Defendant

Identify all medical records made or written by the defendant for the care and treatment at issue

—   explain abbreviations or shorthand terms

—   if physician’s note illegible, make read verbatim

Any custom or practice to not chart findings that are negative?

—   which findings

—   explain when in course of visit physician made such absent findings

Does record refresh physician’s memory of any conversation with plaintiff that is not recorded as history or complaint?

—   how does physician now recall

—   at time of visit was it the physician’s practice to accurately record history taken and physical examination made

Does the physician rely on the written record to conclude that the plaintiff failed to tell him a sign or symptom or accurate history?

V.   Medical Records Reviewed by the Defendant

Identify all medical records reviewed such as nursing notes, admission histories, laboratory tests, x-ray reports, etc.

Does the physician rely upon any of these records to support his diagnosis, care or treatment at issue?

       identify each such record

       state the significance of the findings or history in the record

Was the physician aware of the records at the time of his diagnosis, care or treatment, e.g. comparison of annual mammogram films?

—  were they available to consult

—   why not consulted

—   does any history or findings in records change the course of his care and treatment

Formed any opinions about the plaintiff’s outcome based on records?

—   state each opinion

—   specific information contained in record as the basis of the opinion

VI.   Independent Recollection of the Plaintiff

Conversations

—  Recollection of any statements made by the plaintiff that are not contained in record

—   rule out that plaintiff told physician information that caused him to act differently

—  Where, when and why conversation occurred

—   state verbatim what the plaintiff said

—   state verbatim what the physician said in reply

Conversations with a third person

—   did the plaintiff tell another health care provider information which he heard or later learned

—   if yes, did the information change your course of care and treatment?

Any information about the plaintiff which is not contained in the medical records upon which you rely in support of your diagnosis, care or treatment?

VII.   Independent Recollection of Conversations with Others

Did the physician consult with other health care providers about the plaintiff’s diagnosis, care or treatment?

—   to whom spoke

—   the reason for consulting

—   what information was told to physician by other

Did physician rely on any information to form his diagnosis or select treatment?

—   if yes, what information

—   why is information relevant

VIII.   The Plaintiff’s Condition Before the Defendant’s Care and Treatment

Did the plaintiff have any pre-existing or underlying conditions that explain a bad result or the ultimate injury?

—   describe the condition

Did physician know about the condition at time of treatment?

—   if yes, any techniques or precautions to avoid a poor outcome?

IX.   The Plaintiff’s Signs and Symptoms When Presented

Describe every sign supporting your diagnosis

—   detail how each sign was determined, e.g. heard rales on stethoscopic examination of the lungs

—   can signs be basis for different diagnosis

—   if so, list different diagnosis

Describe every symptom supporting your diagnosis

—   detail how each symptom was determined

—   can symptoms be basis for different diagnosis

X.   Physical Examination Performed

State physical examination performed

—   portions of anatomy selected for examination

Technique for examination performed, e.g. if plaintiff had complaint of breast lump, how did physician examine breast, including positioning of plaintiff, pattern of palpation, etc.

What were the physical findings?

XI.   Tests Ordered or Obtained

Identify each test the plaintiff received

Describe your purpose in ordering the test

Is the test used when a particular condition is suspected?

Was the test used to rule out any conditions, e.g. white blood count to rule infection?

Describe every test available at time to diagnose condition at issue

—   why was particular test not ordered

Were any test results relied upon to form your diagnosis

—   if yes, identify each result

—   explain significance

Were any tests results relied upon to rule out a differential diagnosis

—   if yes, identify each result

—   explain basis to rule out

Were any tests ordered not available to you when diagnosed or treated plaintiff

—   if yes, identify test

—   if yes, would test result now change your diagnosis or treatment

Were the test results accurately reported to you

XII.   Diagnosis of Condition

State the diagnosis of the plaintiff’s condition that you made

—   identify each sign or symptom supporting your diagnosis

—   significant history relied upon in support of diagnosis

—   test results obtained that support diagnosis

Did the physician consider any other possible diagnosis?

—   if yes, what diagnosis and the basis

—   if not, why not considered

XIII.   Treatment Plan

Based on the diagnosis made, what treatment plan was made?

—   procedures scheduled

—   medications prescribed

XIV.   Standard of Care Applicable

Make physician define the term standard of care (Does it fit the legal definition?)

What is standard of care where the patient presents with the following: e.g. signs and symptoms?

Didn’t the standard of care require that you do the following: e.g. order a mammogram based on the plaintiff’s complaint of a breast lump, despite your inability to feel a lump on examination?

What did the standard of care require a reasonably prudent physician to do under the circumstances?

What is the basis for your opinion regarding the standard of care applicable?

Do you know if any reasonably well qualified physicians would differ with your opinion of the standard of care applicable?

XV.   Policies and Procedures

Any published policies or procedures applicable to physician’s diagnosis, care or treatment?

Hospital policies or procedures in effect at institutions where physician on staff

Organizations of which physician is a member that publish written policies or procedures applicable to issue, e.g., American College of Obstetricians and Gynecologists Technical Bulletins regarding labor and delivery

Was the physician aware of any written policies or procedures which agreed or disagreed with his diagnosis, care or treatment?

Does the physician agree with written policy or procedure applicable to issue involved?

XVI.   Literature

Confront physician with any medical literature applicable that disagrees with his opinion of the diagnosis or the standard of care

XVII.   Causation

What caused the plaintiff’s injury or death?

Can the physician state that any particular circumstances more likely than not caused the injury or death?

—   if yes, the basis for opinion on causation

—   physician should be asked to state every fact upon which he relies for causation opinion

—   physician should be asked to state with specificity each medical article, textbook or other writing physician relies upon to support his opinion

Does the physician have any opinion whether earlier diagnosis/intervention would have avoided or lessened the injury?

XVIII.   Conduct of the Plaintiff

Any fault for result or outcome attributed to conduct of the plaintiff

—   if yes, what did the plaintiff do or not do to cause poor outcome?

Did the plaintiff comply with physician’s instructions?

Assuming the plaintiff complied with your instructions, do you agree that plaintiff is not responsible for the result obtained

§473.8Outline for Deposing the Defendant’s Design Engineer—Product Liability Case

I.   Background

Education

—   engineering degrees held

—   advanced degrees or study

—   specialized training in product design

Employment history

—   positions held, title

—   responsibility in position

—   length of time

Prior products design experience

—   identify products

—   scope of experience

—   engineering of product

—   marketing of product

—   customer complaints

—   drafting of instructions or manuals

—   testing of prototypes

—   quality assurance

—   accident investigation

—   safety review

Industry participation

—   memberships to industry organizations, i.e. ASAE

—   committee positions

—   promulgation of standards

—   participation in safety standards drafting

—   industry accident analysis

II.   Corporate Structure

Engineering Department

—   Chief of Department

—   Chain of command

—   drafting engineers

—   testing engineers

—   safety engineers

Manufacturing Department

—   Chief of Department

—   Chain of command

—   Plant manager

—   Production facility locations

—   Quality assurance engineers

Marketing Department

—   persons involved with instructions, i.e. manuals

—   persons involved with labeling

Customer Service Department

—   persons involved with warranty returns

—   persons involved with customer complaints

—   persons involved with parts replacement

Distribution Chain

—   company sales manager

—   wholesalers

—   retailers

III.   Prior Similar Products

Prior generation products history

—   first version or model of product introduced

—   subsequent versions or models of product

—   lead design engineer for each version

—   date each product designed

—   date each product version produced

—   date each product version sold

—   number of units of each product sold

—   manufacturing cost

Safety features of original product

—   design changes for safety

—   labeling changes

—   manual changes

Prior accident frequency rate

—   increases or decreases

IV.   Subject Product

History of product

—   date designed

—   date released for manufacture

—   date manufactured

—   date released for retail sale

—   number of units sold

Product engineering

—   engineering team persons and respective roles

—   typical engineering documents

Product development

—   drawing board designs

—   competitor products studied or compared

—   design alternatives considered

—   prototypes produced and results

—   prototype testing and results

—   prior designs discontinued

—   state of the art

Safety hazards to product

—   admit or deny hazard alleged

—   hazard analysis performed

—   failure modes and effects analysis

Accident hazard experience

—   reporting system

—   risk management personnel

—   complaints

—   warranty claims

—   claims made

—   lawsuits filed

—   accident investigation

Industry accident hazard experience

—   safety committee reports

—   accident studies

—   government statistics, i.e. Consumer Products Safety Commission

Safety features

—   safety features existing on product, i.e. devices, labels, etc.

—   safety considerations discussed, i.e. labels, guards, deadman switches

—   all persons involved in safety decisions

—   alternative safety designs considered

—   safety features rejected and why

—   safety features discontinued

—   competitor product safety features which are different

—   safety features relative to markets, i.e. Europe vs. United States

—   testing of safety features added, rejected or changed

Compliance with safety

—   standards applicable, i.e., ANSI, CPSC, NTSB

—   governmental codes applicable

—   industry recommended practices

—   subject product compliance with standards, codes, and practices

—   product differences with standards, codes or practices and why

V.   Design Alternative Alleged

Feasibility of design

—   knowledge of alternative design

—   technical requirements

—   economics of design alternative

State of the art

—   what is it?

—   product capability to meet

VI.   Opinions on Subject Product Accident

Conduct of user

—   reasonably anticipated

—  compliance with instructions and labels

Hazard causing injury

—   hazard present

—   mechanism for injury

—   why hazard arose

Design available to prevent or minimize hazard

—   devices

—   labels

Cause of injury

VII.   Post Accident Design Changes

Design change implemented

—   date adopted

—   cost of change per unit

—   retrofits to released products

§473.9   Outline for Deposing Plaintiff—Tenant in Residential Mold Case

I.   Deposition Objectives

—   Try to establish mold not caused by landlord’s negligence/mold was caused by plaintiff’s actions

—   Try to establish type of mold not toxic

—   Try to establish plaintiff’s alleged injuries not caused by mold exposure

—   Is there a statute of limitations defense?

II.   Status Quo at Time of Move-In to Establish Base-Line

—   Describe the apartment when you first saw it.

—   Describe any inspection you did of the apartment before moving in.

—   Did you identify any maintenance issues before moving in?

—   Did you have any discussions with the landlord about the state of the apartment before you moved in?

—   Describe your general health at the time of the move in.

III.   Mold

—   When did you first notice mold in your apartment?

—   Where was it? Was it in the bathroom/kitchen?

—   What was its color?

—   What did it look like?

—   What did it smell like?

—   Do you know what caused it?

—   Have you experienced any water leaks, condensation, or water damage?

—   Did you report such water to the landlord?

—   Did you report the mold to the landlord?

—   What steps did you take to clean or remove the mold?

—   Did you hire any professional cleaners?

—   What steps did you take to prevent future mold growth? Fans? Dehumidifiers?

—   Did you have any professionals or experts examine the mold? Did they tell you what they thought it was? What they thought caused it? What kinds of risks it posed to humans?

—   Was anyone else exposed to the alleged mold? Any one else experience symptoms you believe were caused by the mold exposure?

IV.   Actions by the Landlord

—   What is your basis for believing that actions by the landlord caused the mold to grow in your apartment?

—   What did the landlord do when you notified it of the mold in your apartment?

—   Did the landlord offer to move you to a different apartment?

—   What conversations did you have with your landlord about the mold in your apartment?

—   What do you think the landlord should have done differently?

V.   Medical Condition

—   [Go through medical records if you have them, including conditions described in the records occurring before and after the alleged exposure.]

—   Describe the medical symptoms that you experienced that you attribute to mold exposure.

—   When was the first time you experienced any of these syptoms?

—   How long did they last?

—   Did you experience any of these symptoms before you moved into the apartment? Before you first came into contact with the mold in the apartment?

—   Did you consult with a doctor about your symptoms? Who? When? Where?

—   Describe discussion.

—   Did the doctor make any diagnoses? Based on what? Any records?

—   Did the doctor draw any conclusions as to causes of the diagnoses?

—   Did the doctor refer you to any specialists? Who? When? Where? What were their conclusions?

—   What was the treatment regimen?

—   Did you follow it? Is it concluded? Was it successful? Have any symptoms recurred?

—   Have you ever suffered from allergies before? Asthma? Chronic bronchial inflammation?

—   Have you ever been tested for allergies? Dust mites? Hay fever or seasonal allergies? Air pollutants? How were these allergies determined?

—   Describe how your symptoms or medical protocols have changed since vacating the residence.

—   Have you been diagnosed with any additional chronic health problems or allergies since vacating the residence?

—   What made you believe that the symptoms of which you complain are attributable to mold exposure?

—   [Medical evaluation of others tenant claims were exposed to the same mold.]

VI.   Causation/Statute of Limitations

—   [Go through other possible causes of symptoms.] Has any doctor eliminated these potential causes of your symptoms?

—   Have you done any reading about mold exposure? Talked to others? Do you have an understanding as to the state of science on any possible link between mold exposure and sustained, long-term medical symptoms?

—   When did you decide to bring your lawsuit? When did you first consult with a lawyer about your exposure to mold?

§480   Damage Witness Deposition Outlines

§481   Outline for Deposing Injured Plaintiff on Damages

Note: This outline may be used to depose a plaintiff in many types of personal injury cases such as automobile negligence, premises liability, medical negligence, products liability, etc.

I.   General Background

—   Age and date of birth

—   Height and weight

—   Highest level of education and training

—   Marital status

—   Children

—   Military service

II.   Prior Medical History

Have you been involved in any injuries or accidents before this occurrence?

—   describe each injury or accident

—   medical treatment received

—   any physical limitations or disability caused by injury or accident

What physicians have treated you in past 5 years?

—   identify each physician who has examined or treated you

—   describe nature of treatment, i.e. surgery, physical therapy, etc.

Hospitalizations in past 5 years?

—   identify each hospital visited

—   reason for visit

—   diagnosis made

—   treatment received

Do you suffer from any major illnesses?

—   diabetes, heart disease, cancer, etc.

Did any of your prior injuries or accidents involve same or similar body part?

—   describe complaints

—   did complaints exist immediately before injuries complained of now?

III.   Employment History

Are you currently employed? If yes:

—   when did you start?

—   describe your duties

—   job title

—   hours of work

—   rate of pay

—   name of supervisor

—   physical activities involved in work duties

Where were you last employed before sustaining your alleged injuries?

—   when did you work for this employer?

—   describe your duties

—   job title

—   hours of work

—   rate of pay

—   promotions

—   supervisor

—   member of any unions

—   physical activities involved in work duties

Miscellaneous

—   specialized training in a particular employment field

—   part-time jobs

IV.    Activities and Hobbies Before Alleged Injury

Did you play any sports before sustaining your alleged injuries?

—   describe sports, i.e. golf, basketball, etc.

—   frequency of play

—   when last played?

Did you engage in regular physical exercise before sustaining your alleged injuries?

—   bicycling, jogging, aerobics, weight lifting, etc.

—   frequency

—   were you a member of any health clubs? Where and for how long?

Did you enjoy any particular hobbies before sustaining your alleged injuries?

—   describe, i.e. furniture refinishing, auto mechanics, etc.

—   describe accomplishments with hobbies, i.e. restored antique automobile

Miscellaneous activities before sustaining injuries?

—   attended church

—   traveled

—   volunteered for community functions

—   household chores, i.e. cleaning windows, washing floors, laundry, shopping, cooking, etc.

V.   Injury

—   Describe injuries that you experienced as a result of occurrence

•    fractures, lacerations, bruises, etc.

•   head trauma

—   Describe present condition of each of your injuries

VI.   Medical Care and Treatment

Physicians you saw

—   what were your complaints when you saw physician?

—   when did you see physician?

—   what tests were performed? (i.e. x-rays, ct-scans, etc.)

—   what was diagnosis? (i.e. fractured ankle)

—   what treatment was prescribed? (i.e. medication, casting, physical therapy)

—   did physician give you a prognosis for your injury?

—   has any future medical treatment been recommended? (i.e. any scheduled visits)

—   amount of medical bills?

—   have these bills been paid?

Hospitalizations

—   when

—   what were your complaints?

—   tests performed

—   results of tests

—   physicians you saw in hospital

—   amount of hospital bills and if paid

VII.   Lost Income

Were you unable to work as a result of your injuries?

—   dates off work

—   rate of pay while off work

—   benefits received while off work, i.e. sick pay, vacation time, etc.

Have you returned to work since your injury?

—   describe limitations to performing job duties

—   identify physicians who have restricted work activities

Future plans to return to work

—   when

—   type of work planned

—   describe decreased capacity to perform former job duties

—   reduced rates of pay or salary

—   types of work able to perform in other fields

VIII.   Disability

Are there activities or hobbies that you enjoyed before occurrence which you are unable to do now?

—   list activities or hobbies affected

—   describe why unable to do them

—   any attempts to do them

Are there activities of daily living that you are unable to do as a result of occurrence?

—   list household chores, bathing, dressing, etc.

—   who performs activities of daily living for you?

—   cost of help

—   bills paid

IX.   Disfigurement

Do you have any scars or physical deformities as a result of injuries?

—   describe scar or deformity

—   identify size, color and location

—   does color change with suntan or hot water?

Any desire to have it surgically corrected?

—   physicians visited

—   treatment proposed

—   cost

X.   Pain and Suffering

Did you have any physical pain as a result of occurrence?

—   describe pain, i.e. dull or sharp ache, numbness, headache

—   frequency, i.e. daily, weekly, chronically

—   medications taken to relief

Did you experience any mental suffering as a result of occurrence?

—   describe mental suffering, i.e. nightmares, fear of driving, depression, etc.

—   frequency

—   medication prescribed to treat

—   therapy received, i.e. counseling

Other Expenses

—   transportation costs, i.e. taxi cabs, ambulance fees

—   appliances and aids, i.e. canes, wheelchairs, etc.

—   cost and if paid

XI.   Post-Accident Injuries or Illnesses

Have you sustained any other injuries since date of occurrence?

—   describe injuries

—   do your new injuries cause physical limitations

—   do your new injuries cause you to miss work

—   have your new injuries interfered with your hobbies or activities

Have you suffered from an illness since date of occurrence?

—   describe illness

—   does illness require continued medical care?

—   does illness cause disability?

—   loss of income due to illness

§482   Outline for Deposing Treating Physician

I.   Qualifications

Medical school attended

—   years attended

Residencies performed in a particular specialty

—   where

—   what years

Fellowships

—   what specialty

Medical Licensure

—   year

—   State

Board Certifications

—   area of specialty

—   number of times took board examinations

—   if taken more than one time, why failed

Special expertise, training, experience or interest in area of medicine at issue

— make and describe special qualifications

Written or published any literature applicable to the medical issues involved

—   why written

—   research used

—   peer reviewed

Lectures, presentations or seminars applicable to the area of medicine involved

—   state subject matter

—   research performed

Teaching and Academic Appointments

—   subject matter, classroom or clinical

—   taught the diagnosis, care or treatment of the medical condition involved in the present case

Private practice

—   how long

—   define patient population, e.g. adult orthopedic patients

—  number of patients treated for the same or similar condition as present case

Staff privileges

—   hospitals

—   specialty

II.   Physical Examination of Plaintiff

First contact with the Plaintiff

—   date

—   how referred, i.e. other physician or attorney

—   chief complaint

Medical history obtained

—   onset of complaints in relation to date of occurrence

—   pre-existing conditions related to complaints

—   emergency room care

History of occurrence described by plaintiff

—   did plaintiff describe traffic events

—   did plaintiff describe body mechanics on impact

—   information regarding safety restraints, i.e. seat belts

Physical examination

—   describe examination performed

—   purpose of examination

—   objective findings elicited, i.e. limitation of motion, pain on palpation

—   subjective findings, i.e. pain

Radiographic studies obtained ordered

—   results

—   significance to complaints

Diagnosis made

—   define condition

—   history and findings on examination which support

—   other basis for diagnosis, i.e. literature, consults

—   other medical records of patient reviewed or supporting diagnosis

—   common causes condition diagnosed

Treatment

—   physical therapy

—   pain medications

—   anti-inflammatory medications

—   medical devices prescribed

—   surgical procedures recommended

Non-compliance of plaintiff with treatment recommendations

Prognosis

—   permanent v. non-permanent condition

Future treatment

—   treatment required

—   likelihood of improvement

Cost

—   reasonable and necessary medical bills

III.   Legal Causation Opinions

Opinion that occurrence is the likely cause of plaintiff’s condition (injury)

—   basis for the opinion

—  other potential causes

Opinion that injury is competent cause of pain and suffering

—   basis for the opinion

—   other causes

Opinion that injury is cause of disability

—   basis for the opinion

—   types of limitation that injury causes, i.e. standing, running, etc.

Opinion that injury is cause of disfigurement

—   describe disfigurement

—   remedies available

Opinion that injury caused inability to work productively

—   basis for the opinion

—   types of physical limitations injury produced

—   alternative activities available

—   projected return to work date

Other opinions physician holds

§490    Outline for Deposing Plaintiff in a Land Use Case to Establish Lack of Standing

I.   Deposition Objectives

(1)   Establish distance and obstructions between plaintiff’s residence and site of potential development.

(2)   Determine whether there are any impediments to plaintiff proceeding, such as zoning deficiencies in plaintiff’s property.

(3)   Establish plaintiff had opportunity to participate in administrative process.

(4)   Determine whether plaintiff even understands substance of administrative decision being challenged.

(5)   Identify and pin down alleged grievances.

II.   Background and Location

(6)   Name, brief educational background, brief work history

(7)   Where do you live? Please locate on Zoning Map, mark with an “H” for “home,” and initial.

a.   Do you own or rent your residence? Do you live with anyone else?

b.   How long have you lived there?

c.   Describe the neighborhood that you are in. What is directly across the street from you? Scale, use?

(8)   In which zoning district do you live?

(9)   Are you located within the same zoning district as the proposed development?

(10)  Do you know if residential uses are permitted in the zoning district in which you live?

(11)   Do you know if your home complies with all applicable zoning regulations?

(12)   Have you ever measured the distance you live from the proposed development? Estimate? How long does it take you to walk there from your home?

(13)   Are you an abutter to the proposed development? Are you an abutter to an abutter to the proposed development?

(14)   Do you own any other property in the municipality? Where is it?

(15)   Do you own an automobile? Do you drive in the municipality? How often? What purposes? Do you drive to the area of the proposed development? How often?

(16)   Have you ever driven directly from your home to the proposed development? If so, how long did it take you to drive? If not, how long would you estimate it would take you with no traffic? With normal rush hour traffic?

(17)   Can you see the site of the proposed development from your home? What kinds of structures are between your home and the site of proposed development?

(18)   Are you on the same plain as the site of the proposed development, or is there some elevation difference?

(19)   Have you ever been able to see from your home any lights from any of the buildings immediately adjacent to the site of the proposed development?

(20)   Have you ever been able to hear from your home any noises from any of the buildings immediately adjacent to the site of the proposed development?

(21)   Has any building immediately adjacent to the site of the proposed development ever cast a shadow that fell across your property?

(22)   How many times in the past year have you been at the site of the proposed development?

(23)   Where do you currently work? Please describe on the Zoning Map.

(24)   Please describe the path you take on your commute to work. What is your mode of transportation?

(25)   How is it that you came to be a plaintiff in this lawsuit? What was your motivation for joining the lawsuit?

(26)   What is the relief that you would like to achieve from your lawsuit?

(27)   Have you agreed to pay for any of the expenses for this lawsuit?

(28)   Identify other lawsuits in which you have been a plaintiff?

(29)   Identify other administrative decisions that you have appealed/challenged?

(30)   Have you ever been deposed before? In what context? By whom?

(31)   Have you ever written any articles or letters to the editor that have been published about any development issues in the municipality?

(32)   Describe how you participated in drafting the complaint.

(33)   Walk through the allegations in the complaint.

III.   Ability to Participate in the Political Process

(34)   I want to ask you about your involvement in development and housing issues in the community. What organizations do you belong to whose mission relates at all to development, housing, or traffic issues in the community?

(35)   How many members? Mission? Your position? Who does it purport to represent? Decision-making process? Has it taken a position on the proposed development?

(36)   What public bodies have you appeared before relating to development, housing, or traffic issues in the municipality? Have you appeared before local planning boards?

(37)   What letters have you written to any public official in the past year on development/permitting issues?

(38)   Describe how you participate in the appointment of the members of the local Planning Board. Campaign for any of them?

(39)   Do you know any members of the Planning Board personally? Do you consider any of them to be your friends?

IV.   Communications

(40)   Identify all communications with the other named plaintiffs regarding this lawsuit, or any development or permitting at the locus.

a.   Do you personally know the other plaintiffs?

b.   Are you a member of any organizations with any of the other plaintiffs?

c.   Do you know how the other named plaintiffs joined?

d.   What conversations have you had with the other named plaintiffs about the proposed project?

e.   Do you know what impacts each of them claim?

f.   Have you talked to any of the other plaintiffs about their depositions?

(41)   Identify all communications with anyone from the municipality, including the Planning Board, regarding development or permitting at the locus.

(42)   Identify all communications with anyone from the developer regarding development or permitting at the locus.

(43)   Identify all communications with the media, including any letters to the editor, regarding development or permitting at the locus.

(44)   Identify all communications with any organization regarding development or permitting at the locus.

V.   Due Diligence

(45)   What is your understanding as to what is allowed by the zoning decision you are appealing? What did you do to make that investigation?

(46)   In what ways did you participate in the process leading up to the Planning Board decision that you are challenging? Attend any of the hearings?

(47)   What do you understand the developer wants to build at the locus? Basis? How did you investigate?

(48)   Putting the Planning Board Decision aside, do you know what could be developed at the locus as of right now, in other words, without permission from the Planning Board under the applicable zoning laws?

(49)   Have you studied the proposed design?

(50)   Do you know how many stories are in the building that the developer would like to build? Do you know its zoning height? Do you know the front or side setback? Do you know the lot size, size of footprint, or the floor area ratio?

(51)   Have you performed any studies of the potential impact from any proposals for the location? Have you studied or hired a consultant to study the impact from traffic, noise, wind, shadows?

(52)   Have you investigated what the potential impacts would be from different build scenarios without special permits for the site?

VI.   Grievances from Building that the Developer would like to Build

(53)   Please list all your grievances from the Decision of the Planning Board. Have I exhausted your list?

(54)   Please list all your grievances from the building the developer would like to build at the locus. Have I exhausted your list?

(55)   Let’s go through them one by one. Please articulate facts in support of each grievance. In what way is each grievance special and different for you as opposed to the neighborhood as a whole?

(56)   [Consider]:

a.   Traffic

b.   Noise

c.   Shadows

d.   Wind

e.   Architecture

f.   Aesthetics

g.   Character of the neighborhood

h.   Safety

(57)   Please compare each of these impacts to the structures and uses permitted within the district under current zoning.

(58)   Is there anything about the proposed development that you think would be beneficial? Anything that you see as an improvement over what is there now?

§495   Outline for Deposing Defendant-Judgment Debtor on Income and Assets Under Fed. R. Civ. P. 69(a)

I.   Deposition Objectives

(1)   Identify assets available for attachment or trustee process.

(2)   Identify sources of income for garnishment.

(3)   Identify possible insurance.

(4)   Identify defendants’ other debts and a list of other creditors and the possibility of a bankruptcy filing.

(5)   Identify any possible fraudulent transfers.

(6)   Identify any gaps in production of documents in response to a request for documents related to income and assets.

II.   Defendant’s Assets

(1)   Please identify by address all real property that you have owned over the past three years.

a.   Where do you live?

b.   Do you have any vacation homes?

c.   Do you own any investment properties?

d.   Does anyone pay rent to you?

(2)   Please identify all real property for which you have held an option to purchase or right of first refusal for the past three years.

(3)   Please identify all real property held in trust for which you have been the trustee or beneficiary for the past three years.

(4)   For each such property identified, identify any mortgages, liens, or other encumbrances thereon.

(5)   Have you filed a declaration of homestead or similar filing with the registry of deeds for any of those properties?

(6)   Please identify all boats, automobiles, motorcycles, or other passenger vehicle you have owned over the past three years.

(7)   For each such boat or vehicle, how much did you pay? Where is it currently located? What is its condition?

(8)   Please identify all items of personal property that you own with a value in excess of $1,000, including any jewelry, antiques and furniture.

(9)   What sales or transfers of real or personal property have you made in the past three years? To whom were the items transferred? What value was received?

III.   Investments and Sources of Income

(1)   Identify all jobs you have held the past three years? Who were your employers?

(2)   How much did you make each year?

(3)   Have you made any payments into any retirement accounts, such as a 401(K) plan? Did you ever have an employer who matched any such contribution to a retirement plan?

(4)   What were your job titles and responsibilities?

(5)   Identify any other sources of income.

(6)   Do you own a stake in any business, including partnerships or joint ventures? What is the stake? Do you receive any income from the business?

(7)   Identify your investments, including stocks, mutual funds, bonds, bond funds, options, or other securities or negotiable instruments you own. Current value? Where held?

(8)   If you have sold any investments in the past three years, what did you sell, how much did you realize, and what did you do with the proceeds?

(9)   In the past three years, have you worked with any investment advisors, money or asset managers, or stock or investment brokers?

(10)   If so, who? With whom are they affiliated? Where are they located? What are their fees?

(11)   Do you have any savings, checking, money market, certificates of deposit, or other accounts with any financial institutions? If so, where? How much?

a.   Any off-shore or foreign held accounts?

(12)   What withdrawals have you made the past three years? How much? What did you do with the funds you withdrew?

(13)   Are you the beneficiary of any trusts?

(14)   How much have you paid in taxes the past three years? Income? Capital gains? Property? Excise? Federal vs. state vs. municipal?

(15)   Have you been audited the past three years?

(16)   Do you work with an accountant? Has any accountant the past three years helped you with a personal balance sheet?

IV.   Insurance Policies

(1)   What insurance policies do you have? What types?

a.   Home-owners?

b.   Auto?

c.   Liability?

d.   Malpractice?

e.   Directors and officers? Key-man insurance?

f.   Excess or umbrella insurance?

g.  Supplemental insurance?

(2)   With whom? In what amounts?

(3)   Who are the beneficiaries?

(4)   What claims have you made on any insurance policies the past three years? Have you made a claim on any insurance policy in connection with this case?

(5)   Did you provide notice to any insurance carriers in connection with this case?

(6)   Did you send a copy of the Complaint to any insurance carrier?

(7)   What correspondence have you received from any insurance carrier in connection with this case?

V.   Transfers

(1)  When did you first learn that you might be sued?

(2)   Since then, have you transferred anything of value to your spouse?

(3)   Have you transferred anything of value to any other family members or to friends?

(4)   Have you set up any trusts?

(5)  Have you set up any corporate entities to hold any of your assets?

(6)   Have you transferred any real or personal property for which you received consideration less than the fair market value?

(7)   Have you transferred any money or assets outside of the United States?

VI.   Other Creditors

(1)   Do you owe any debts? To whom? How much?

(2)   Have you taken out any bank loans the past three years? Status?

(3)   What home mortgages do you have?

(4)   Car loans?

(5)   Any other liens or encumbrances on your real or personal property?

(6)   Have you ever filed for bankruptcy?

(7)   Have you consulted with a lawyer about filing for bankruptcy in the past three years? After you came to believe that you would be sued in connection with this case?

(8)   Have you or anyone on your behalf prepared any papers for a bankruptcy filing?

(9)   Have you identified any creditors in connection with a potential bankruptcy filing?


Daniel P. Dain is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston,Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts. He is the author of How to Prepare for, Take and Use a Deposition, from which this article is excerpted.