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F-1 (Rev. 6, 11/12)

DepositionChecklists and

Strategies

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Deposition Checklists and Strategies F-2

Copyright © 2012James Publishing, Inc.ISBN: 1-58012-114-4

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First Edition, 12/06Revision 1, 12/07Revision 2, 12/08Revision 3, 11/09Revision 4, 11/10Revision 5, 12/11Revision 6, 11/12

(Rev. 6, 11/12)

F-3 About the Author

About the Author

T. Evan Schaeffer is a 1990 magna cum laude graduate of St. LouisUniversity School of Law, where he was the Managing Editor of the St.Louis University Law Journal and received American JurisprudenceAwards in Contracts, Property and Evidence. Mr. Schaeffer is a member ofPhi Beta Kappa and the Order of the Woolsack.

Mr. Schaeffer was admitted to the Missouri and Illinois bars in 1990.He began his career as a defense lawyer, but since 1996 has worked pri-marily on the plaintiffs’ side. Schaeffer’s areas of practice include com-plex commercial and tort litigation, including mass torts and classactions, as well as general civil litigation. He is a principal of Schaeffer& Lamere, P.C., based in the metropolitan St. Louis area.

Mr. Schaeffer’s publications include articles and essays in many news-papers and magazines, including the Chicago Tribune, the Houston Chron-icle, the St. Louis Post-Dispatch, and the Illinois Bar Journal. Mr. Schaef-fer also publishes two weblogs, The Trial Practice Tips Weblog andBeyond the Underground, which together have received notice in manyprint publications, including the New York Times and The Economist.


Editorial Advisory Board

Editorial Staff

Managing Editor: Donna M. ColeEditor: Scilla Bennett

Production: Amanda Winkler

Lee H. AyresCook Yancey King & GallowayShreveport, Louisiana

Larry BendeskySaltz Mongeluzzi Barrett & BendeskyPhiladelphia, Pennsylvania

William H. FallonMiller JohnsonGrand Rapids, Michigan

Leonard B. GabbayLeonard B. Gabbay, PCAustin, Texas

Joseph A. GalloWilson Elser Moskowitz Edelman & DickerNewark, New Jersey

Alan K. GoldsteinGoldstein & PriceSt. Louis, Missouri

Eric J. HolshouserCoffman Coleman Andrews & GroganJacksonville, Florida

Derek R. LayserLayser & FreiwaldWestmont, New Jersey

Richard C. McCrea, Jr.Zinober & McCreaTampa, Florida

Eric D. MillerMiller & MarkleAtlanta, Georgia

Peter W. RileySchwebel Goetz & SiebenMinneapolis, Minnesota

(Rev. 6, 11/12)

F-5 Table of Contents

Abbreviated Table of Contents

Chapter 1 Deposition Procedures and Strategies

Chapter 2 Vehicular Liability

Chapter 3 Premises Liability

Chapter 4 Products Liability

Chapter 5 Medical Malpractice

Chapter 6 Employment Discrimination and Termination

Chapter 7 Insurance Coverage Disputes

Chapter 8 Consumer Protection and Deceptive Trade Practices

Chapter 9 Breach of Contract

Appendix A Other Representative Depositions

Index


Table of Contents

Chapter 1Deposition Procedures and Strategies

I. HOW TO USE THIS BOOKA. Chapter Organization

§1:01 Overview of Substantive Law§1:02 Sample Deposition Outlines§1:03 A Note on Scope

B. Bonus Information§1:10 Practice Tips and Forms§1:11 Specialized Deposition Outlines§1:12 Practice Tips Relating to Trial

II. PURPOSES AND USES OF DEPOSITIONSA. Depositions as a Discovery Tool

§1:20 The Scope of Depositions§1:21 Purposes of Depositions§1:22 When You Shouldn’t Take a Deposition

B. Depositions as a Settlement Tool§1:30 Using Depositions to Encourage Settlement§1:31 Practice Tip: Stay on the Offensive

C. Depositions as a Trial Tool§1:40 The Use of Depositions at Trial

III. PREPARING FOR DEPOSITIONSA. Depositions as Part of an Overall Discovery Plan

§1:50 Reviewing the Case§1:51 Establishing Goals§1:52 Preparing an Outline

§1:52.1 Practice Tip: When Making a Deposition Outline, Should You WriteOut Every Question?

§1:53 Practice Tip: Ten Things to Cover in Every Deposition

B. Preparing the Documents§1:60 Choosing the Documents to Use§1:61 Preparing the Documents

C. Other Pre-Deposition Tasks§1:70 Where to Conduct the Deposition§1:71 The Deposition Notice§1:72 The Court Reporter

D. Some Special Situations§1:80 Telephone Depositions§1:81 Video Depositions§1:82 Second-Chairing Depositions§1:83 Practice Tip: Controlling Abusive Counsel With Video Depositions§1:84 Practice Tip: Use Exhibits Regularly During Video Depositions

(Rev. 6, 11/12)


IV. TYPICAL DEPOSITION PROCEDURESA. Starting Depositions

§1:90 How to Begin a Deposition§1:91 Practice Tip: “The Usual Stipulations”§1:92 The Role of the Court Reporter§1:93 Practice Tip: Treating Court Reporters Right

B. Questioning During Deposition§1:100 Preliminary Questions§1:101 Practice Tip: Always Ask the Standard Preliminary Questions§1:102 Practice Tip: Mixing It Up§1:103 Basic Questioning Technique

§1:103.1 Practice Tip: Watch Out for Negatives in Leading Questions§1:103.2 Practice Tip: The Anatomy of the Perfect Deposition Question

§1:104 Questions by Opposing Counsel

C. Ending Depositions§1:110 How to End a Deposition§1:111 Practice Tip: Can You “Wing It” at a Deposition?

D. After the Deposition§1:120 Following Up on the Transcript§1:121 Practice Tip: Critiquing Your Own Performance§1:122 Practice Tip: Motions in Limine§1:123 Practice Tip: The Witness Can’t Outsmart You at a Deposition§1:124 Trial-Planning Steps to Take After a Deposition Has Ended

V. OTHER DEPOSITION TECHNIQUESA. Handling Documents

§1:130 Handling Documents at a Deposition§1:131 Practice Tip: “The Document Speaks for Itself”

B. Situations You Might Encounter§1:140 The Uncooperative Witness§1:141 Practice Tip: Impeachment Nuggets§1:142 The Forgetful Witness

§1:142.1 Practice Tip: Assume the Witness Is Lying§1:143 The Witness Who Talks Too Much§1:144 Practice Tip: Asking Follow-Up Questions§1:145 The Witness Who Talks Too Little

§1:145.1 The Witness Who Answers “I Don’t Know”§1:146 The Difficult Opposing Counsel§1:147 Practice Tip: How to Spot Liars—Ask for the Story in Reverse

VI. OBJECTIONS AT DEPOSITIONSA. Handling Objections

§1:160 Handling Objections: Overview§1:161 Ignoring the Objection§1:162 Asking for the Basis of an Objection§1:163 Rephrasing the Question§1:164 Seeking Judicial Intervention§1:165 How Deposition Objections Are Ruled on Before Trial


B. Types of Objections§1:170 Objections to Form

§1:170.1 Practice Tip: Leading Questions in Federal-Court Depositions§1:171 Objections to Foundation§1:172 Objections Relating to Relevancy§1:173 Objections Based on Privilege§1:174 Other Objections§1:175 Practice Tip: Speaking Objections and How to Stop Them

VII. EXPERT DEPOSITIONSA. Before the Deposition

§1:180 Written Discovery of Defense Expert Opinions§1:181 Sample Outlines

B. Goals of Expert Depositions§1:190 Overview§1:191 Discover Every Opinion of the Opposing Expert§1:192 Discover the Factual Basis for All Opinions§1:193 Practice Tip: Attempting to Strike the Expert§1:194 Learn About the Opposing Expert’s Qualifications§1:195 Obtain Admissions to Use to Support Your Case§1:196 Explore All Sources of Bias§1:197 Lay a Foundation for Your Demonstrative Evidence

C. How to Prepare for Expert Depositions§1:210 Overview§1:211 Reviewing the File§1:212 Practice Tip: Review the Pattern Jury Instructions§1:213 Gathering the Key Documents§1:214 Familiarize Yourself With Government Standards§1:215 Studying the Expert’s CV and Report§1:216 Practice Tip: Five Ways to Hit Home Runs With an Expert’s CV

§1:216.1 Practice Tip: Pay Attention to the Dates on the Expert’s CV§1:217 Conducting Other Research About the Expert

§1:217.1 Practice Tip: Preparing for Expert Depositions by Looking Ahead tothe Cross-Examination at Trial

§1:218 Consult With Your Own Expert§1:219 Practice Tip: Privilege and Experts

D. Expert Deposition Strategies§1:230 Using Texts in the Deposition§1:231 Questioning Techniques§1:232 Practice Tip: “Why Is That?” and Other Follow-Up Questions That Never Fail

§1:232.1 Practice Tip: The Use in Depositions of Tone of Voice and Body Language

§1:233 Should You Cross-Examine the Expert During His Deposition?§1:234 Caution: Time Limits on Depositions§1:235 Practice Tip: What to Do When You Arrive for an Expert’s Deposition§1:236 Practice Tip: What to Do When the Defendant Buries You With Experts§1:237 Other Practice Tips Elsewhere in the Book

(Rev. 6, 11/12)


VIII. ADVANCED DEPOSITION TECHNIQUESA. Managing the Witness

§1:250 Get the Witness Acting Like a Normal Person§1:251 Make the Witness Feel at Home

§1:251.1 Practice Tip: Improve Your Deposition Technique by ReviewingYour Transcripts

§1:252 Make Sure You Get the Real Answer§1:253 Know When to Give Up§1:254 Practice Tip: How to Cross-Examine at Trial With Inconsistent Statements

B. Asserting Control Over the Witness§1:260 Assert Your Right to Ask Questions§1:261 Control the Order of the Questioning§1:262 Control the Speed of the Questioning

§1:262.1 Practice Tip: Asserting Control With the “Unresponsive” Objection§1:263 Be Confident About Your Abilities§1:264 Practice Tip: Make Your Depositions Shorter

IX. FURTHER AIDS FOR READING AND NAVIGATING THE BOOKA. Focusing on Particular Aspects of Deposition Practice

§1:270 How to Personalize the Book to Improve Your Depositions

B. Navigating the Book’s Practice Tips§1:280 Practice Tips Organized by Theme

Chapter 2Vehicular Liability

I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTIONA. Theories of Recovery

§2:01 Overview§2:02 The Elements of Negligence, as Applied to Vehicular Liability§2:03 Practice Tip: Read Your State’s Model Jury Instructions§2:04 Common Fact Patterns§2:05 Practice Tip: Don’t Overlook Potential Defendants§2:06 Practice Tip: Know the Statutory Law of Your State

B. Typical Defenses in a Vehicular-Liability Case§2:20 Contributory or Comparative Negligence§2:21 Other Negligence-Based Defenses§2:22 Practice Tip: Discover and Attack the Facts Upon Which the Defense Is Based

II. THE DISCOVERY PLANA. The Sequence and Timing of Discovery

§2:30 The Initial Round of Written Discovery§2:31 Caution: Never Overlook the Importance of Insurance§2:32 Request for Admissions§2:33 Practice Tip: Inspect the Scene§2:34 Practice Tip: Secure the Automobile if It Is a Total Loss§2:35 Depositions§2:36 Written Discovery of the Opinions of Defendant’s Experts§2:37 Practice Tip: Consult With Your Client’s Doctor


B. Documents and Exhibits in a Vehicular-Liability Case§2:50 Documents and Exhibits: Overview§2:51 Liability Documents§2:52 Damage Documents§2:53 Practice Tip: Take Your Client to Depositions

C. Typical Deponents in a Vehicular-Liability Case§2:60 Typical Deponents: Overview§2:61 Occurrence Witnesses§2:62 Practice Tip: Learn to Do Informal Discovery§2:63 Medical Witnesses§2:64 Other Witnesses Regarding Damages§2:65 Practice Tip: Abstract Depositions as You Go§2:66 Defendant’s Expert Witnesses§2:67 The Depositions the Defendant Will Take§2:68 Practice Tip: How to Use Experts in an Auto Case

III. DEPOSITION #1: DEFENDANT-DRIVERA. Setting the Stage

§2:80 Overview§2:81 Timing

B. Deposition Goals, Strategy, Preparation, and Exhibits§2:90 Deposition Goals§2:91 Deposition Strategy§2:92 Deposition Preparation§2:93 Deposition Exhibits

C. The Deposition Outline1. Background Facts and Thumbnail Outline

§2:100 Background Facts§2:101 Thumbnail Outline/Deposition Checklist

2. Preliminary Questions§2:110 Standard Introductory Questions§2:111 The Witness’s Background§2:112 The Witness’s Preparation for the Deposition§2:113 The Witness’s Relationship to Other Parties and Witnesses§2:114 Practice Tip: Putting the Witness at Ease

3. The Collision§2:120 Part I: Events Leading Up to the Collision§2:121 Part II: Central Events§2:122 Part III: After the Collision§2:123 Practice Tip: Driving Experience and Licensure

4. Defendant’s Condition on Day of Collision§2:130 Defendant’s Activities on the Day of the Collision§2:131 Practice Tip: Estimates of Times§2:132 Practice Tip: Establishing Fatigue§2:133 Alcohol and Drugs

5. The Vehicles§2:140 Condition of the Deponent’s Vehicle Before the Collision§2:141 Condition of the Vehicles After the Collision§2:142 Practice Tip: Lack of Damage as Evidence of Negligible Force

(Rev. 6, 11/12)


6. Traffic Tickets and Plaintiff’s Negligence§2:150 Traffic Tickets§2:151 Plaintiff’s Contributory Negligence

7. Admissions, Witnesses, and Statements§2:160 Admissions§2:161 All Witnesses to the Occurrence§2:162 Knowledge of Conversations§2:163 Formal Statements§2:164 Informal Statements and Interviews§2:165 Conversations About the Accident or the Lawsuit

8. Closing§2:170 Photographs and Diagrams§2:171 Closing Questions

IV. DEPOSITION #2: POLICE OFFICER WHO DID THE ACCIDENT REPORTA. Setting the Stage


B. Deposition Goals, Preparation, and Exhibits§2:190 Deposition Goals§2:191 Deposition Preparation§2:192 Deposition Exhibits



2. Preliminary Questions§2:210 Standard Introductory Questions§2:211 The Witness’s Background§2:212 Relationship to the Parties and Witnesses§2:213 Practice Tip: The Importance of Law Enforcement Witnesses§2:214 Preparation for the Deposition

3. The Occurrence§2:220 The Witness’s Involvement in the Occurrence§2:221 The Witness’s Involvement in the Occurrence, Continued

§2:221.1 Practice Tip: The Four W's§2:222 The Accident Report

4. Witnesses and Statements§2:230 Knowledge of Other Witnesses§2:231 Statements at the Scene by the Parties§2:232 Other Conversations About the Occurrence

V. DEPOSITION #3: THE DEFENDANT’S ACCIDENT RECONSTRUCTION EXPERTA. Setting the Stage

§2:240 Overview

B. Deposition Goals, Preparation, and Exhibits§2:250 Deposition Goals§2:251 Deposition Preparation§2:252 Deposition Exhibits




2. Preliminary Questions§2:270 Standard Preliminary Questions§2:271 Past Deposition and Trial Testimony§2:272 Practice Tip: At Expert Depositions, Set the Trap, Don't Spring It

3. Expert’s File§2:280 The Expert’s File Materials§2:281 Identifying the Expert’s File Materials, Part 2§2:282 Cross-Reference: Practice Tips From the Products-Liability Chapter

4. Expert’s Background and Qualifications§2:290 The Expert’s CV

§2:290.1 Practice Tip: “What Is Your Role in This Litigation?”§2:291 The Expert’s Preparation for the Deposition§2:292 The Expert’s Professional Background: Occupation and Education§2:293 The Expert’s Professional Background: Publications§2:294 Past Testimony as an Expert§2:295 Other Work as an Expert, Including Income From Testifying§2:296 Past Work for the Lawyer Who Is Your Opponent§2:297 Practice Tip: The Time, Speed, Distance Formula§2:298 Practice Tip: Challenging Black Box Reports

5. Expert’s Work on the Case§2:310 Overview§2:311 What the Expert Is Charging§2:312 The Expert’s Preparations to Render an Opinion§2:313 Conversations and Correspondence With Lawyers About the Case§2:314 Conversations and Correspondence With Others About the Case§2:315 Practice Tip: The Expert’s Knowledge and Understanding of Case-Related Facts

6. Expert’s Report and Opinions§2:320 The Reports Prepared by the Expert§2:321 The Process by Which the Report Was Prepared§2:322 Discovering the Expert’s Testimony: Opinions Contained in the Report§2:323 Discovering the Expert’s Testimony: Opinions Not Contained in the Report

§2:323.1 Practice Tip: Planning Your Trial Cross-Examination§2:324 The Opinions and Factual Basis for the Opinions§2:325 Did the Plaintiff Cause or Contribute to the Collision?§2:326 Knowledge of and Disagreements With Other Experts§2:327 Practice Tip: Testimony From the Expert Supporting Your Theory of the Case

7. Closing§2:340 Closing Questions

VI. DEPOSITIONS #4 - #6: THREE MORE THUMBNAIL OUTLINES§2:350 Passenger in the Vehicle of the Driver-Defendant§2:351 Witness at the Scene of an Accident§2:352 Ambulance Driver

VII. FORMSForm 2:01 Complaint in a Vehicular-Liability Case (With Reference to Illinois Rules)Form 2:02 Interrogatories in a Vehicular-Liability Case (With Reference to Illinois Rules)

(Rev. 6, 11/12)


Form 2:03 Requests to Produce in a Vehicular-Liability Case (With Reference to Illinois Rules)Form 2:04 Deposition Notice for an Expert in a Vehicular-Liability Case (With Reference to

Illinois Rules)

Chapter 3Premises Liability

I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTIONA. Theories of Recovery

1. General Points§3:01 Premises Liability Is a Form of Negligence§3:02 Caution: Consider the Law of Your Own Jurisdiction§3:03 Practice Tip: Identify the Proper Defendants

2. The Plaintiff’s Status§3:10 General Points§3:11 The Invitee§3:12 The Licensee§3:13 The Trespasser§3:14 Children

3. Special Rules§3:20 Special Places§3:21 The Defendant’s Status§3:22 Landlord/Tenant§3:23 Municipal Liability§3:24 Actions of Third Parties

4. Evaluating Premises-Liability Cases§3:30 Evaluating Slip-and-Fall Cases§3:31 Caution: Not Every High-Damage Case Is a Good One

B. Typical Defenses in a Premises-Liability Case§3:40 Negligence Defenses§3:41 Disproving Plaintiff’s Case§3:42 Statutory Limitations and Immunities

II. THE DISCOVERY PLANA. Sequence and Timing

§3:50 The Initial Round§3:51 Practice Tip: Photographs§3:52 Requests for Admissions§3:53 Depositions§3:54 Opinions of Defendant’s Experts§3:55 Practice Tip: Visit the Scene

B. Documents and Exhibits§3:60 General Categories§3:61 Liability Documents§3:62 Practice Tip: Carefully Plan Your Written Discovery§3:63 Damage Documents

C. Typical Deponents1. General Points

§3:70 Depositions the Plaintiff Will Take


§3:71 The Depositions the Defendant Will Take

2. Occurrence Witnesses§3:80 General Points§3:81 Practice Tip: Not Every Potential Witness Needs to Be Deposed

3. Medical Witnesses§3:90 General Points§3:91 Practice Tip: Supporting Your Claim for Damages

4. Experts§3:100 Defendant’s Expert Witnesses§3:101 Practice Tip: The Human Factors Expert§3:102 Practice Tip: Two More Experts for Slip-and-Fall Cases

III. SAMPLE DEPOSITION: STORE MANAGER IN A SLIP-AND-FALL CASEA. Planning

§3:110 Deponents§3:111 Timing

B. Goals, Strategy, and Preparation§3:120 Deposition Goals§3:121 Deposition Strategy§3:122 Deposition Preparation§3:123 Deposition Exhibits

C. The Deposition Outline1. Background and Thumbnail Outline


2. Preliminary Questions§3:140 Standard Introductory Questions§3:141 The Witness’s Background, Including His Employment History With the

Defendant§3:142 Practice Tip: Know Why You Are Asking Each Question§3:143 The Witness’s Preparation for the Deposition

3. Inspection Program and Practices§3:150 Store Inspection Program§3:151 Practice Tip: Industry Practice§3:152 Store Inspection Practices at Other Stores§3:153 Caution: Laying the Proper Foundation

4. The Occurrence§3:160 Preliminary Questions§3:161 Practice Tip: Open-Ended Questions to Set the Stage§3:162 The Condition of the Store§3:163 Whether Inspections Procedures Were Followed

§3:163.1 Practice Tip: Weather Reports in Ice and Snow Cases§3:164 Facts About the Spill§3:165 The Plaintiff’s Fall; What the Witness Saw§3:166 The Scene After the Fall§3:167 The Witness’s Actions to Aid the Plaintiff§3:168 Practice Tip: Always Be on the Lookout for Facts With Jury Appeal

(Rev. 6, 11/12)


5. Admissions§3:180 Use of Marketing Displays§3:181 Practice Tip: Admissions§3:182 Admission: Plaintiff’s Status as Invitee

6. Other Witnesses§3:190 Other Witnesses to the Occurrence§3:191 Practice Tip: Offer to Pay Medical Bills

7. Defendant’s Response to the Occurrence§3:200 Subsequent Remedial Measures§3:201 Practice Tip: Evidence of Subsequent Remedial Measures§3:202 Discipline of Employees§3:203 Conversations About the Accident or the Lawsuit

8. Defenses§3:210 Practice Tip: Always Ask About Defenses§3:211 Plaintiff’s Contributory Negligence

9. Similar Incidents§3:220 Other Similar Incidents§3:221 Practice Tip: Admissibility of Other Incidents

10. Closing§3:230 Closing Questions§3:231 Practice Tip: What to Do at the End of the Deposition

IV. SAMPLE DEPOSITION: PLAINTIFF’S TREATING PHYSICIAN (PRESERVATION DEPOSITION)A. Planning


B. Goals, Strategy and Preparation§3:250 Deposition Goals

§3:250.1 Practice Tip: Motivating Yourself for Trial: Start a Trial Notebook Early§3:251 Deposition Strategy§3:252 Deposition Preparation§3:253 Deposition Exhibits§3:254 Practice Tip: Are You Ready for Trial? A Checklist


§3:260 Background Facts§3:261 Thumbnail Outline/Deposition Checklist§3:262 Practice Tip: Who Should Read the Deposition at Trial?

2. Preliminary Questions§3:270 Standard Introductory Questions§3:271 Practice Tip: Stipulations to Get Before the Deposition Begins§3:272 Educational Background and Licensure§3:273 Practice Tip: Impress the Jury, But Do it Quickly§3:274 Work History§3:275 Professional Publications, Activities, Awards, Etc.

3. Plaintiff’s Treatment§3:280 Practice Tip: “Reasonable Degree of Medical Certainty”§3:281 First Visit§3:282 Practice Tip: How the Plaintiff Chose the Treating Physician


§3:283 More About Adhesive Capsulitis§3:284 Practice Tip: Proceed Chronologically§3:285 Second Visit§3:286 Third Visit§3:287 Practice Tip: Introduce Scientific Terms Slowly

4. Opinion Testimony§3:300 Causation§3:301 Caution: “Magic Words” for Opinion Testimony§3:302 Defendant’s Contentions as to Causation

5. Damage Testimony§3:310 Past Medical Costs§3:311 Prognosis and the Need for Future Medical Care§3:312 Practice Tip: What if the Doctor Is No Longer Treating the Plaintiff?§3:313 Pain and Suffering, Past and Future§3:314 Disability, Past and Future§3:315 Caution: Make an Emotional Connection

6. Closing§3:320 Closing Questions§3:321 Defendant’s Cross-Examination; Plaintiff’s Re-Direct§3:322 Practice Tip: Know Your Opponent

V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§3:330 Owner of Laundromat Where Plaintiff Slipped on Ice§3:331 Defendant’s Human Factors Expert§3:332 Witness to a Fall in a Store Parking Lot

VI. FORMSForm 3:01 Complaint in a Trip-and-Fall Case [Illinois Rules]Form 3:02 Interrogatories to a Corporate Landowner in a Slip-and-Fall Case [Illinois Rules]Form 3:03 Requests for Production to a Corporate Landowner in a Slip-and-Fall Case [Illinois Rules]Form 3:04 Deposition Notice for a Corporate Representative in a Slip-and-Fall Case [Illinois Rules]Form 3:05 Notice to Take Deposition of Defendant’s Engineering Expert in a Premises-Liability Case

Chapter 4Products Liability

I. THE PRODUCTS LIABILITY CAUSE OF ACTIONA. Theories of Recovery

§4:01 Definition and General Points§4:02 Strict Liability: General Principles§4:03 Strict Liability: Defective Product§4:04 Strict Liability: Failure to Warn§4:05 Negligence§4:06 Warranty Theories: General Principles§4:07 Express Warranty§4:08 Practice Tip: Don’t Neglect an Express Warranty Claim§4:09 Implied Warranty

B. Typical Defenses§4:20 Contributory Negligence/Comparative Fault§4:21 Assumption of Risk§4:22 Misuse

(Rev. 6, 11/12)


§4:23 Statute of Limitations§4:24 Statute of Repose§4:25 Caution: The Changing Nature of the Law of Products Liability


§4:30 Practice Tip: Think About Experts From the Beginning§4:31 The Initial Round of Written Discovery§4:32 Practice Tip: Stay on the Offensive§4:33 Requests for Admissions§4:34 Written Discovery of the Opinions of the Defendant’s Experts§4:35 Depositions of Corporate Representatives§4:36 Practice Tip: Testing the Knowledge of Corporate Designees

B. Documents and Exhibits§4:50 Liability Documents§4:51 Damage Documents


§4:60 Typical Deponents§4:61 The Depositions the Defendant Will Take

2. Liability Witnesses§4:70 Plaintiff’s Liability Witnesses§4:71 Defendant’s Liability Experts§4:72 Corporate Designee—Design and Testing/Marketing§4:73 Marketing Executive§4:74 Sales Representative§4:75 Product Engineer/Designer

3. Defendant’s Expert Witnesses§4:80 General Points§4:81 The Government-Standards Expert§4:82 The Engineering Expert

4. Defendant’s Expert Medical Witnesses§4:90 Causation§4:91 Damages

5. Defendant’s Expert Damage Witnesses§4:100 General Points§4:101 The Defendant’s Economist§4:102 The Defendant’s Vocational Rehabilitation Expert§4:103 The Defendant’s Life Care Planner

III. SAMPLE DEPOSITION: CORPORATE DESIGNEE—DESIGN AND TESTINGA. Noticing the Deposition

§4:110 Authority for a Corporate Designee Deposition§4:111 Defendant’s Duty to Select the Corporate Representative§4:112 Timing

B. Goals, Strategy and Preparation§4:120 Deposition Goals§4:121 Deposition Strategy§4:122 Deposition Preparation




2. Preliminary Questions§4:140 Standard Introductory Questions§4:141 The Witness’s Background, Including His Background With the Defendant

3. The Notice and Witness’s Preparation§4:150 The Deposition Notice and Areas of the Witness’s Knowledge§4:151 The Witness’s Preparation for the Deposition

4. Specific Topics§4:160 Design§4:161 Testing§4:162 Practice Tip: “Who Does Know?”§4:163 Manufacturing§4:164 The Warning Label§4:165 Similar Accidents

IV. SAMPLE DEPOSITION: DEFENDANT’S CAUSATION EXPERT IN A DEFECTIVE DRUG CASEA. Overview of Defendant’s Experts

§4:170 Defendant’s Experts Are Experienced§4:171 Generic and Specific Liability Experts§4:172 Medical Experts§4:173 Non-Medical Damage Experts

B. Goals, Strategy and Preparation§4:180 Deposition Goals§4:181 Practice Tip: Five Keys for Deposing Experts in Products-Liability Cases§4:182 Deposition Preparation

C. The Use of Epidemiology in Defective Drug Cases§4:190 Plaintiff’s Use of Epidemiology§4:191 Defendant’s Use of Epidemiology

D. The Deposition Outline1. Background and Thumbnail Outline

§4:200 Background Facts: Fen-Phen Litigation§4:201 Background Facts: This Sample Deposition§4:202 Thumbnail Outline/Deposition Checklist

2. Preliminary Questions§4:210 Standard Introductory Questions§4:211 Past Deposition and Trial Testimony

3. The Expert’s File Materials§4:220 Identifying the Expert’s File Materials§4:221 Identifying the Expert’s File Materials, Part 2§4:222 Practice Tip: Establish the Role the Defendant’s Lawyer Played in Assisting the

Defendant’s Expert§4:223 Practice Tip: How to Move Quickly Through the Expert’s File§4:224 Practice Tip: Catch the Expert Unprepared (by Finding Out What He Hasn’t Read)

4. The Expert’s Background and Trial Preparation§4:230 The Expert’s CV and Rule 26 List

(Rev. 6, 11/12)


§4:231 Preparation for the Deposition§4:232 The Expert’s Occupation and Work§4:233 The Expert’s Areas of Research§4:234 Practice Tip: Asserting Control Over the Witness§4:235 The Expert’s Publications§4:236 Practice Tip: Find Out About the Authorities the Expert Consults

5. Past Work as an Expert§4:240 Past Testimony§4:241 Other Expert Work§4:242 Past Work for the Opposing Lawyer§4:243 Past Work for the Defendant§4:244 Practice Tip: Stock Ownership

6. Experience With the Product§4:250 Personal Experience§4:251 Work on the Case§4:252 Practice Tip: When and How Was the Expert Retained§4:253 What the Expert Is Charging§4:254 Preparations to Render an Opinion§4:255 Practice Tip: What the Expert Did Not Do§4:256 Communication With Lawyers About the Case§4:257 Communication With Others About the Case§4:258 Practice Tip: E-Mails

7. Terminology and Knowledge of Facts§4:270 Agreement as to Terminology§4:271 Expert’s Knowledge of Case-Related Facts

8. The Expert’s Opinions§4:280 Report Prepared by the Expert§4:281 Process by Which the Report Was Prepared§4:282 Opinions Contained in the Report§4:283 Opinions Not Contained in the Report§4:284 Practice Tip: Pinning Down the Expert§4:285 Factual Basis for the Opinions§4:286 Caution: You Don’t Need to Be Smarter Than the Expert

9. Admissions§4:300 Did the Plaintiff Cause or Contribute to the Injury?§4:301 Questions to Support Damages§4:302 Knowledge of Other Experts§4:303 Practice Tip: Obtain Assent to Learned Treatises§4:304 Other Admissions Supporting Your Theory of the Case

10. Closing and Use of Deposition§4:310 Closing Questions§4:311 Practice Tip: Using the Deposition to Cross-Examine at Trial

V. SAMPLE DEPOSITION: DEFENDANT’S EXPERT ECONOMIST IN A PRODUCT LIABILITY LAWSUITA. Setting the Stage




§4:331 Deposition Preparation§4:332 Deposition Exhibits




3. The Expert’s File Materials and CV§4:360 The Expert’s File Materials§4:361 The Expert’s CV

4. The Expert’s Professional Background§4:370 The Expert’s Educational Background§4:371 The Expert’s Work History§4:372 The Expert’s Current Job

5. Past Work as an Expert§4:380 Consulting Work as an Expert§4:381 Income From Work as an Expert§4:382 Past Work for the Opposing Lawyer§4:383 Practice Tip: Always Check the Web

6. Work on the Present Case§4:390 What the Expert Is Charging§4:391 When and How the Expert Was Retained§4:392 Overview of the Expert’s Work on the Case§4:393 Communication With Lawyers About the Case§4:394 Communication With Others About the Case§4:395 Cross-Reference: Practice Tips From Earlier in This Chapter§4:396 The Expert’s Knowledge and Understanding of Case-Related Facts§4:397 Preparation for the Deposition

7. The Expert’s Opinions§4:410 Report Prepared by the Expert§4:411 Practice Tip: Videotaping Expert Depositions§4:412 Process by Which the Report Was Prepared§4:413 Opinions Contained in the Report§4:414 Opinions Not Contained in the Report§4:415 Practice Tip: Using Economic Experts in Conjunction With Rehabilitation Experts§4:416 Factual Basis for the Opinions§4:417 Practice Tip: Key Areas to Explore With a Defense Economist

8. Testimony That Supports the Plaintiff’s Case§4:430 Questions to Lend Support to Your Own Legal and Factual Theories§4:431 Knowledge of and Disagreement With Other Experts


VI. SAMPLE DEPOSITION: PHARMACEUTICAL REPRESENTATIVE IN A PRODUCT LIABILITY CASEA. Setting the Stage

§4:450 Overview

(Rev. 6, 11/12)


§4:451 Timing§4:452 Practice Tip: The Plaintiffs’ Management Committee in Large-Scale MDLs

B. Goals, Strategy and Preparation§4:460 Deposition Goals§4:461 Deposition Strategy§4:462 Deposition Preparation§4:463 Deposition Exhibits



2. Preliminary Questions§4:480 Standard Introductory Questions§4:481 Practice Tip: The Preliminary Deposition Questions: Don’t Make a Speech§4:482 The Witness’s Background: Basic Information§4:483 Past Depositions

3. Educational and Work Background§4:490 Educational Background§4:491 Practice Tip: Dealing With the Over-Prepared Witness§4:492 Work Before Merck

4. Other Background Topics§4:500 Past Dealings With the Plaintiff§4:501 Practice Tip: Ask About Your Request for Production of Documents§4:502 The Witness’s Knowledge of Document Production§4:503 The Witness’s Preparation for the Deposition§4:504 Personal Experiences With Vioxx

5. Work History With Merck§4:510 Overview§4:511 More Details About the Witness’s Work Experience With the Defendant§4:512 Practice Tip: Nasty Lawyer Tricks: Whispering Form Objections§4:513 Salary and Compensation§4:514 Practice Tip: When Preparing Exhibits for Depositions, Make Notes About

Questions on Your Personal Copy

6. The Witness’s Interaction With the Subject Doctor§4:520 Overview§4:521 General Details of Sales Calls Concerning Vioxx§4:522 Practice Tip: Common Deposition Error: Repeating Yourself§4:523 Materials Used in Sales Calls§4:524 Defendant-Sponsored Programs With Prescribing Doctors

7. Questions About Specific Documents§4:530 Communications From the Company—1§4:531 Practice Tip: You’re Going to Use a Document in a Deposition? Be Sure to Read

It First§4:532 Communications From the Company—2§4:533 Practice Tip: The “Show Him the Document!” Objection§4:534 Communications From the Company—3§4:535 Memos Authored by Witness§4:536 Call Notes


§4:537 Practice Tip: Questions to Ask About Documents§4:538 Weekly Activity Reports

8. Closing§4:550 Other Statements and Conversations§4:551 Concluding Questions

VII. SAMPLE DEPOSITION: PLAINTIFF’S PRESERVATION DEPOSITION IN A PRODUCT LIABILITY CASEA. Setting the Stage

§4:560 Overview§4:561 Timing§4:562 Practice Tip: Achieving Spontaneity on Direct Examination

B. Goals, Strategy and Preparation§4:570 Deposition Goals§4:571 Deposition Strategy§4:572 Deposition Preparation§4:573 Deposition Exhibits



2. Plaintiff’s Background§4:590 On-the-Record Statement§4:591 Preliminaries§4:592 Family Background§4:593 Family Health History§4:594 Childhood§4:595 Practice Tip: Testifying at Trial: Don’t Let Your Client Make These Disastrous

Mistakes§4:596 Education§4:597 Marital Background§4:598 Work History

3. Other Background Topics§4:610 Expertise Regarding Pharmaceuticals§4:611 Use of Dangerous Substances§4:612 Practice Tip: Six Tips for Improving Your Direct Examinations§4:613 Previous lawsuits

4. Use of Diet Pills§4:620 Medication: First Prescription§4:621 Knowledge of Side Effects§4:622 Plaintiff Follows Warnings§4:623 Use of Pharmacy§4:624 Plaintiff Took Medication as Prescribed§4:625 Practice Tip: An Easy Way to Fix a Leading Question§4:626 Other Doctor Visits and Prescriptions§4:627 Plaintiff Took Medication According to Label

5. Use of Other Diet Medications§4:640 A Second Diet Drug: Redux§4:641 Other Diet Medications

(Rev. 6, 11/12)


6. Discovery of Illness Caused by Use of Diet Drugs§4:650 First Signs of Illness§4:651 Preliminary Medical Treatment§4:652 Practice Tip: Using Your Trial “Narrative” as a Principle of Selection§4:653 The Plaintiff Sees a Cardiologist§4:654 Diagnosis of PPH

7. Continuing Treatment of Illness§4:660 Referral to a Pulmonologist§4:661 Continuing Treatment and Drug Regime§4:662 Practice Tip: “Please Tell the Jury”: A Formula Guaranteed to Make You Sound

Pompous§4:663 Plaintiff’s Condition Worsens§4:664 Another Doctor Links PPH to Diet Drugs

8. More Testimony About Plaintiff’s Treatment§4:670 The Use of Flolan as Treatment Drug§4:671 Trouble With the Ports; Scarring§4:672 Practice Tip: Planning Your Direct by Considering Your Opponent’s Cross-

Examination§4:673 Doctors Who Treated Plaintiff§4:674 Side Effects of Flolan

9. Limitations Caused by Disease, Physical and Emotional§4:680 Limitations in Activities§4:681 Emotional Effects of Disease

10. Closing Questions§4:690 Decision to File a Lawsuit

11. Cross Examination§4:700 Preliminaries§4:701 Practice Tip: Objecting During Cross-Examination at a Preservation Deposition§4:702 Flolan Makes the Plaintiff’s Life Easier§4:703 Plaintiff’s Training in Healthcare§4:704 Practice Tip: A Simple Tip for Controlling Witnesses on Cross-Examination§4:705 Plaintiff’s Use of Diet Drugs§4:706 Plaintiff’s Visit to Doctor for Diet Drugs§4:707 Plaintiff’s Trip to Pharmacy§4:708 Plaintiff’s Ability to Heed Warnings§4:709 Practice Tip: How to Ask a Leading Question§4:710 Total Pill Amounts§4:711 Some Particulars of Plaintiff’s Medical Care§4:712 Practice Tip: On Cross, Don’t Use Adjectives Needlessly§4:713 Testimony for Motions: Forum Argument

12. Redirect Examination§4:720 Redirect

VIII.FORMSForm 4:01 Notice of Corporate-Representative Deposition of Defendant Manufacturer (With Reference

to Illinois Rules)Form 4:02 Notice of Corporate-Representative Deposition of Defendant Retailer (With Reference to

Illinois Rules)


Form 4:03 Notice of Discovery Deposition of Defendant’s Expert (With Reference to Illinois Rules)Form 4:04 Notice of Deposition Duces Tecum of Defendant’s Expert (With Reference to Missouri Rules)Form 4:05 Complaint in a Medical Device Case Alleging a Defective Hip ReplacementForm 4:06 Interrogatories in a Medical Device Case Alleging a Defective Hip ReplacementForm 4:07 Requests to Produce in a Medical Device Case Alleging a Defective Hip Replacement

Chapter 5Medical Malpractice

I. THE MEDICAL MALPRACTICE CAUSE OF ACTIONA. Theory of Recovery

§5:01 A Form of Negligence§5:02 Duty§5:03 Breach of Duty§5:04 Practice Tip: Establishing Liability Without an Expert§5:05 Cause in Fact§5:06 Practice Tip: Jury Instructions§5:07 Proximate Cause§5:08 Damages§5:09 Practice Tip: Case Selection§5:10 Caution: Never Take a Medical Malpractice Case Hoping for a Quick Settlement§5:11 Practice Tip: Explaining Medical Malpractice Cases to the Client§5:12 Informed Consent§5:13 Practice Tip: Hospital Liability

B. Typical Defenses§5:20 Contributory Negligence/Comparative Fault§5:21 Practice Tip: Procedurally-Based Defense Strategies§5:22 Statute of Limitations§5:23 Caution: Medical Malpractice “Reform”§5:24 Immunities


§5:30 General Sequence§5:31 Caution: Pre-Litigation Collection of Medical Records§5:32 Interrogatories§5:33 Requests for Production§5:34 Depositions

§5:34.1 Practice Tip: Seminars Concerning Depositions§5:35 Requests for Admissions§5:36 Written Discovery of Defendant’s Experts§5:37 Practice Tip: Selecting Your Medical Expert

§5:37.1 Practice Tip: Selecting an Expert Who Has Testified for the Defense§5:38 Caution: Don’t Wait Too Long to Consult an Expert§5:39 Caution: Do Not Rely on Professional Testifiers

B. Documents and Exhibits§5:50 Liability Documents§5:51 Practice Tip: Organizing Medical Records§5:52 Damage Documents§5:53 Other Documents

(Rev. 6, 11/12)



§5:60 Overview§5:61 Practice Tip: Thinking in Reverse About the Witnesses§5:62 Depositions the Defendant Will Take§5:63 Practice Tip: The Locality Rule and Expert Witnesses

2. Occurrence Witnesses§5:70 Deponents Who Witnessed the Alleged Malpractice§5:71 Post-Occurrence Witnesses

3. Damage Witnesses§5:80 Medical Witnesses§5:81 Non-Medical Witnesses

4. Defendant’s Expert Witnesses§5:90 General Points§5:91 Medical Experts§5:92 Non-Medical Damage Experts

III. SAMPLE DEPOSITION #1: DEFENDANT PHYSICIANA. Planning


B. Goals, Strategy, Preparation, and Exhibits§5:110 Deposition Goals§5:111 Deposition Strategy§5:112 Practice Tip: The Difficult Witness§5:113 Deposition Preparation§5:114 Practice Tip: Prepare for the Doctor-Defendant Like You Would an Expert§5:115 Deposition Exhibits



2. Preliminary Questions and Witness Background§5:130 Standard Introductory Questions§5:131 Practice Tip: Shortening the Preliminary Questions

§5:131.1 Practice Tip: Consider Asking the Hardest Questions First§5:132 The Witness’s CV§5:133 Past Deposition and Trial Testimony

§5:133.1 Practice Tip: Arrive Early§5:134 Background: Education, Work History, and Publications§5:135 Background: Special Training§5:136 Preparation for the Deposition§5:137 Other Experience With the Drug at Issue

3. Plaintiff’s Medical Records§5:150 Practice Tip: Examine the Doctor’s Original Medical Records§5:151 The Medical Chart§5:152 Handwriting


4. Case-Specific Questions§5:160 Information About Other Witnesses§5:161 The Role of the Physician’s Assistant§5:162 Medical Treatment by Physician’s Assistant

5. Plaintiff’s Treatment§5:170 Treatment Provided to Plaintiff§5:171 Other Treatment Issues: The Prescription

6. Criticisms of Others§5:180 Criticisms of Other Physicians§5:181 Criticisms of the Plaintiff§5:182 Practice Tip: Critical Questions for a Defendant Doctor

7. Witnesses and Statements§5:190 Witness’s Conversations With the Plaintiff§5:191 Practice Tip: Admissibility of Statements by Your Client§5:192 Conversations About the Plaintiff With Others§5:193 Statements the Witness Has Made§5:194 Practice Tip: Peer Review§5:195 Conversations With Sales Representatives§5:196 Practice Tip: Closing a Topic

8. Opinion Testimony§5:200 The Witness’s Opinions About Key Issues§5:201 Practice Tip: The Defendant Who Is Qualified as an Expert§5:202 Questions Supporting Your View of the Case

9. Closing§5:210 Closing Questions§5:211 Caution: Never Finish Until You’re Done

IV. SAMPLE DEPOSITION #2: ANOTHER DEFENDANT PHYSICIANA. Planning and Preparation

§5:220 Overview§5:221 Timing§5:222 Goals, Strategy, Preparation, and Exhibits

B. The Deposition Outline1. Background Facts and Thumbnail Outline


2. Preliminary Questions and Witness Background§5:240 Standard Introductory Questions§5:241 The Witness’s CV§5:242 Past Deposition and Trial Testimony§5:243 Practice Tip: Prior Lawsuits§5:244 Education§5:245 Work History§5:246 Specialties

(Rev. 6, 11/12)


§5:247 Teaching and Publishing§5:247.1 Practice Tip: Medical Terms for the Court Reporter

§5:248 Deposition Preparation

3. Plaintiff’s Medical Records§5:260 The Medical Chart

4. Case-Specific Questions§5:270 Practice Tip: Medical Terminology§5:271 Background About the Alleged Event§5:272 Background About the Surgery: Who Is in Charge?

5. Plaintiff’s Treatment§5:280 Note Taking During the Operation§5:281 The Witness’s “Operative Note”§5:282 Other Witnesses to the Operation

§5:282.1 Practice Tip: Using iPads at Depositions§5:283 The Discovery of Complications§5:284 Aftermath: Comment on the Complication by the Hospital

6. Criticisms of Others; Witnesses and Statements§5:290 Criticisms of Others§5:291 Statements and Conversations

7. Opinion Testimony and Closing§5:300 The Witness’s Opinions About Key Issues§5:301 Closing Questions

V. SAMPLE DEPOSITION #3: TREATING PHYSICIANA. Setting the Stage


B. Goals, Strategy, Preparation, and Exhibits§5:320 Deposition Goals§5:321 Deposition Strategy§5:322 Deposition Preparation§5:323 Deposition Exhibits



2. Preliminary Questions and Witness Background§5:340 Standard Introductory Questions§5:341 Past Deposition and Trial Testimony§5:342 Background: Education§5:343 Background: Work History§5:344 Background: Teaching and Publishing§5:345 Preparation for the Deposition

3. Plaintiff’s Medical Records§5:350 The Medical Chart


4. Plaintiff’s Treatment§5:360 The Basic Parameters of the Medical Treatment§5:361 The Doctor’s Treatment: First Visit§5:362 Caution: Do Not Allow a Medical Witness to Control the Deposition§5:363 The Doctor’s Treatment: Skin Graft Operation§5:364 Practice Tip: “In Lay Terms”§5:365 The Doctor’s Treatment: Follow-Up Care§5:366 Care by Other Doctors in the Same Group§5:367 Further Surgery§5:368 End of Treatment

5. Criticisms of Others§5:380 Criticisms of Plaintiffs§5:381 Criticisms of Other Physicians

6. Witnesses and Statements§5:390 Witness’s Conversation With the Plaintiff§5:391 Conversations About the Plaintiff and the Case With Others§5:392 Statements the Witness Has Made

7. Opinion Testimony§5:400 Investigation as to Cause of Injury§5:401 Practice Tip: Approach the Witness as an Expert§5:402 Practice Tip: Bolster or Attack Based on the Doctor’s Qualifications§5:403 Cause of Injury§5:404 Testimony to Bolster Case


VI. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§5:420 Preservation of Expert Physician for Trial§5:421 The Defendant’s Medical Expert

VII. FORMSForm 5:01 Petition for Damages in a Medical Malpractice Case (With Reference to Missouri Rules)Form 5:02 Interrogatories in a Medical Malpractice Case (With Reference to Missouri Rules)Form 5:03 Requests for Production in a Medical Malpractice Case (With Reference to Missouri Rules)

Chapter 6Employment Discrimination and Termination

I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTIONA. Wrongful Termination

1. Sources of Claims for Wrongful Termination§6:01 Employee-at-Will§6:02 Contract-Based Claims for Wrongful Termination§6:03 Practice Tip: Duty of Good Faith and Fair Dealing§6:04 Tort-Based Claims for Wrongful Termination§6:05 Statutory-Based Claims for Wrongful Termination

2. Typical Defenses to Wrongful Termination Claims§6:10 Defenses to Wrongful Termination Claims§6:11 Practice Tip: The Plaintiff’s Employment File

(Rev. 6, 11/12)


B. Discrimination1. Types of Prohibited Discrimination

§6:20 Sources of Laws Prohibiting Discrimination§6:21 Prima Facie Discrimination Claim§6:22 Age§6:23 Race§6:24 Practice Tip: The EEOC§6:25 Gender§6:26 Sexual Harassment§6:27 Disability§6:28 Other Prohibited Discrimination

2. Typical Defenses to Discrimination Claims§6:40 Defenses Common to Discrimination Claims§6:41 Other Defenses: Age§6:42 Other Defenses: Race§6:43 Other Defenses: Gender§6:44 Other Defenses: Sexual Harassment§6:45 Other Defenses: Disability§6:46 Practice Tip: Screening Employment Cases


§6:60 The Initial Round§6:61 Practice Tip: Defining “Document” to Include Information in Electronic Format§6:62 Practice Tip: Consider the Use of a Corporate-Representative Deposition on

Electronic Discovery Issues§6:63 Requests for Admissions§6:64 Depositions§6:65 Opinions of Defendant’s Experts

B. Documents and Exhibits§6:70 General Categories§6:71 Liability Documents§6:72 Damage Documents§6:73 Practice Tip: Discovery of E-Mails§6:74 Practice Tip: Other Steps to Take Where Electronic Information Is at Issue§6:75 Practice Tip: Advantages of Receiving Information in Electronic Format§6:76 Practice Tip: Admissibility of Employee E-Mails

C. Typical Deponents1. The Depositions Plaintiff Will Take

§6:90 General Points§6:91 Occurrence and Damage Witnesses§6:92 Practice Tip: Explore All Categories of Damages§6:93 Defendant’s Expert Witnesses

2. The Depositions the Defendant Will Take§6:100 Occurrence and Damage Witnesses§6:101 Plaintiff’s Expert Witnesses

III. SAMPLE DEPOSITION: REGIONAL MANAGER IN A SEXUAL HARASSMENT CASEA. Planning



B. Goals, Strategy and Preparation§6:120 Deposition Goals§6:121 Deposition Strategy§6:122 Caution: Deposing the Alleged Harasser§6:123 Deposition Preparation§6:124 Deposition Exhibits



2. Preliminary Questions§6:140 Standard Introductory Questions§6:141 Education and Employment History

3. Other Background Questions§6:150 The Witness’s Background: Background Concerning Sexual Harassment

Investigations§6:151 The Witness’s Preparation for the Deposition

§6:151.1 Practice Tip: What to Do With the Original Deposition§6:152 Past Dealings With Alleged Harasser

4. The Witness’s Investigation Into Allegations of Sexual Harassment§6:160 How the Witness Learned of the Complaints§6:161 Witness’s Notes Concerning the Investigation, and the First Meeting With

Plaintiff§6:162 Discussions With Plaintiff About the EEOC§6:163 Assistance From Others in Conducting the Investigation

§6:163.1 Practice Tip: Don’t Give the Witness a Chance to “Dis-Remember”an Event

§6:164 The Timing of the Investigation§6:165 Other Incidents Before the Completion of the Investigation§6:166 The Witness’s Conversations With the Alleged Harasser

§6:166.1 Practice Tip: When Taking Depositions, Beware Pronoun Soup§6:167 The Witness’s Conversations With the Other Witnesses §6:168 Conclusions Reached§6:169 Practice Tip: Plaintiff’s Credibility§6:170 Practice Tip: Getting Assent to Principles With Which the Witness Cannot

Disagree

5. Other Statements or Conversations§6:180 Conversations About the Incident or the Lawsuit

6. Closing Questions§6:190 Closing Questions

IV. SAMPLE DEPOSITION: RESTAURANT OWNER IN RACE-DISCRIMINATION CASE A. Planning


(Rev. 6, 11/12)


B. Goals, Strategy and Preparation§6:210 Deposition Goals§6:211 Deposition Strategy

§6:211.1 Practice Tip: When the Witness Wants a Conference With His orHer Attorney

§6:212 Deposition Preparation§6:213 Deposition Exhibits



2. Preliminary and Background Questions§6:230 Standard Introductory Questions§6:231 Educational Background§6:232 Work History, Including Details About the Corporate Defendant

§6:232.1 Practice Tip: Asserting Control by Remaining Confident§6:233 Family Background§6:234 Past Convictions§6:235 The Witness’s Preparation for the Deposition§6:236 Practice Tip: Remember to Summarize

3. Corporate Background§6:240 Past Complaints and Lawsuits

§6:240.1 Practice Tip: Pursuing the Recalcitrant Witness§6:241 The Restaurant’s Hiring Procedures§6:242 The Identity of Other Witnesses§6:243 Practice Tip: Get Your Deposition Transcripts via Email

4. The Alleged Incident of Discrimination§6:250 Overview of Witness’s Dealing With Plaintiff

§6:250.1 Practice Tip: Types of Leading Questions§6:251 Plaintiff’s Job Interview§6:252 The Decision Not to Hire the Plaintiff§6:253 The EEOC Action and Other Employment Decisions Concerning the Plaintiff§6:254 Practice Tip: Depositions Out of Town

5. Closing Questions§6:260 Conversations About the Incident or the Lawsuit§6:261 Closing Questions

V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§6:270 Director of Human Resources; Age Discrimination§6:271 Co-Worker Witness in Sexual Harassment Case

VI. FORMSForm 6:01 Complaint in a Sexual Harassment Case Form 6:02 Interrogatories in a Race-Discrimination Case, Example 1 (With Reference to Federal Rules)Form 6:03 Interrogatories in a Race-Discrimination Case, Example 2 (With Reference to Federal Rules)Form 6:04 Request for Production of Documents in a Race-Discrimination Case (With Reference to

Federal Rules)


Chapter 7Insurance Coverage Disputes

I. ELEMENTS OF THE PLAINTIFF’S CAUSE OF ACTIONA. Typical Causes of Action

§7:01 The Distinction Between First- and Third-Party Cases§7:02 Contract Claims§7:03 Property Insurance/Insurable Interest§7:04 Breach of the Implied Duty of Good Faith and Fair Dealing§7:05 Statutory Bad-Faith Claims§7:06 Other Causes of Action

B. Typical Defenses in an Insurance Coverage Case§7:20 Typical Defenses§7:21 Practice Tip: Material Misrepresentations and Intent to Deceive§7:22 Practice Tip: What Is the Purpose of a Reservation of Rights Letter?


§7:30 The Initial Round§7:31 Practice Tip: Other Sources of Information§7:32 Requests for Admissions§7:33 Depositions§7:34 Opinions of Defendant’s Experts§7:35 Practice Tip: Use Your Opponent’s Interrogatory Answers at Trial


C. Typical Deponents1. The Plaintiff’s Likely Deponents

§7:50 Liability and Damage Witnesses§7:51 The Defendant’s Expert Witnesses

2. The Defendant’s Likely Deponents§7:60 Depositions the Defendant Will Take

III. SAMPLE DEPOSITION: CORPORATE DESIGNEE OF INSURER IN A HEALTH INSURANCE DENIALCASEA. Setting the Stage


B. Goals, Strategy and Preparation§7:80 Deposition Goals§7:81 Deposition Preparation

§7:81.1 Practice Tip: Searching the Internet for Deposition Tips§7:82 Deposition Strategy§7:83 Deposition Exhibits




2. Preliminary Questions§7:100 Standard Introductory Questions§7:101 The Witness’s Background, Including His Background With the Defendant§7:102 Practice Tip: Speak Up, and Encourage the Witness to Do the Same

3. The Notice and Witness’s Preparation§7:110 The Deposition Notice and Areas of the Witness’s Knowledge§7:111 The Witness’s Preparation for the Deposition

4. Specific Deposition Topics§7:120 Process for Requesting Out-of-Network Procedures§7:121 Whether Plaintiff Properly Requested Out-of-Network Procedure§7:122 Practice Tip: Terminology§7:123 Defendant’s Process for Handling Out-of-Network Requests§7:124 Whether “Nerve-Sparing Radical Prostatectomy” Was Available Within the

Network§7:125 Process by Which Plaintiff’s Out-of-Network Request Was Considered and Denied§7:126 Practice Tip: The Witness Who Tires as the Deposition Goes On§7:127 Why Plaintiff’s Out-of-Network Request Was Denied

5. Closing Questions§7:140 Closing Questions

IV. SAMPLE DEPOSITION: DEFENDANT’S ROOFING EXPERT IN A PROPERTY DAMAGE CASEA. Setting the Stage



§7:160.1 Practice Tip: A Method of Organizing a Trial Notebook§7:161 Deposition Preparation§7:162 Deposition Exhibits§7:163 Practice Tip: An Alternative Method of Organizing a Trial Notebook




3. The Expert’s File Materials and CV§7:190 The Expert’s File Materials§7:191 The Expert’s CV

(Rev. 6, 11/12)


4. The Expert’s Background§7:200 The Expert’s Educational Background§7:201 Practice Tip: Deposing the “Unsophisticated” Expert§7:202 The Expert’s Work History§7:203 The Expert’s Current Job

5. Past Work as an Expert§7:210 Past Testimony as an Expert§7:211 Consulting Work as an Expert

§7:211.1 Practice Tip: Deposition Exhibits—Dealing With Originals§7:212 Income From Work as an Expert

§7:212.1 Practice Tip: Responding to Incivility in Litigation§7:213 Past Work for the Opposing Lawyer§7:214 Practice Tip: Past Work for the Defendant

6. Work on the Present Case§7:220 What the Expert is Charging§7:221 When and How Was the Expert Retained

§7:221.1 Practice Tip: Learn From the Old Pros§7:222 Overview of the Expert’s Work on the Case§7:223 Cross-Reference: Practice Tips From the Products-Liability Chapter§7:224 Communication With Lawyers About the Case

§7:224.1 Practice Tip: Experts and Their Communications§7:225 Communication With Others About the Case§7:226 Practice Tip: The Expert’s Knowledge and Understanding of Case-Related Facts§7:227 Preparation for the Deposition

7. The Expert’s Opinions§7:240 Report Prepared by the Expert§7:241 Practice Tip: Ask Simple Questions to Identify Opinions§7:242 Process by Which the Report Was Prepared§7:243 Opinions Contained in the Report

§7:243.1 Practice Tip: Experts and Motion Practice§7:244 Opinions Not Contained in the Report§7:245 Practice Tip: Foundation for the Admission of Photographs§7:246 Factual Basis for the Opinions§7:247 Practice Tip: Questions Calling for Legal Conclusions

8. Testimony that Supports the Plaintiff’s Case§7:260 Questions to Support Damages§7:261 Knowledge of and Disagreement With Other Experts§7:262 Practice Tip: Other Opinions From the Expert Supporting Your Theory of the Case


V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§7:280 Insurance Executive in a Bad-Faith Case

VI. FORMSForm 7:01 Interrogatories in an Insurance Coverage Dispute (With Reference to Illinois Rules)Form 7:02 Request for Production in an Insurance Coverage Dispute (With Reference to Illinois Rules)Form 7:03 Deposition Notice for a Corporate Representative in Health Insurance Denial Case (With

Reference to Federal Rules)

(Rev. 6, 11/12)


Chapter 8Consumer Protection and Deceptive Trade Practices

I. ELEMENTS OF PLAINTIFF’S CAUSE OF ACTIONA. Theories of Recovery

§8:01 An Overview of UDAP Statutes§8:02 Other Sources of Consumer Protection Law§8:03 Practice Tip: Does the Client’s Problem Involve Consumer Fraud?§8:04 Statutes of Limitations Under UDAP Statutes§8:05 Damages Under UDAP Statutes§8:06 Practice Tip: Preconditions to Filing Suit

B. Consumer Class Actions§8:20 The Class Action as a Procedural Device for Amassing Similar Claims§8:21 The Class Action Fairness Act§8:22 Practice Tip: What Makes a Suitable Class Action?

C. Typical Defenses in Consumer Protection Cases§8:30 Defenses in General§8:31 The Defense of Class Actions


§8:40 The Written Discovery§8:41 Requests for Admissions§8:42 Depositions of Corporate Representatives§8:43 Other Depositions§8:44 Opinions of Defendant’s Experts

B. Documents and Exhibits§8:50 Documents Pertaining to Your Client§8:51 Liability Documents§8:52 Damage Documents§8:53 Practice Tip: Electronic Discovery

C. Typical Deponents§8:60 Typical Deponents: Overview§8:61 The Plaintiff’s Liability Witnesses§8:62 The Plaintiff’s Damage Witnesses§8:63 Practice Tip: Identifying the Witnesses You’ll Depose During Discovery§8:64 The Defendant’s Experts§8:65 Depositions the Defendant Will Take§8:66 Practice Tip: Class Actions, Proving Numerosity

III. SAMPLE DEPOSITION: CORPORATE DESIGNEE IN A CONSUMER-FRAUD CASEA. Noticing the Deposition

§8:80 Deposition Overview§8:81 Authority for a Corporate-Designee Deposition§8:82 Defendant’s Duties in Selecting a Corporate Designee§8:83 Timing§8:84 Practice Tip: The Defendant Who Tries to Shirk Its Responsibilities


B. Goals, Strategies, and Preparation§8:90 Deposition Preparation§8:91 Deposition Goals§8:92 Deposition Exhibits



2. Preliminary Questions§8:110 Standard Introductory Questions§8:111 The Witness’s Background, Including His Background With the Defendant

3. The Notice and the Witness’s Preparations§8:120 The Deposition Notice and Areas of the Witness’s Knowledge§8:121 The Witness’s Preparation for the Deposition§8:122 Practice Tip: The “If You Know” Objection

4. Specific Topics§8:130 Topic 5: The Policies, Practices, and Procedures for Obtaining Customers for

Travel Packages§8:131 Practice Tip: You Aren’t Necessarily Limited to the Topics in Your Notice§8:132 Topic 6: The Manner in Which the Named Plaintiffs Were Obtained as Customers§8:133 Topic 7: Policies, Practices, and Procedures for Writing and Producing Direct

Mail Promotional Materials§8:134 Topic 8: Policies, Practices, and Procedures for Promoting Timeshare

Properties to Potential Customers§8:135 Topic 9: Policies, Practices, and Procedures for Verifying the Accuracy of Each

Claim Made to Consumers§8:135.1 Practice Tip: Courtesies for the Court Reporter

§8:136 Topic 10: The Number of Persons Who, for Each Year Since 1997, HavePurchased Vacation Packages Offered or Sold as Part of Travel Promotions

§8:137 Topic 11: Policies, Practices, and Procedures for Training TelemarketingEmployees

5. Closing§8:150 Concluding Questions

IV. SAMPLE DEPOSITION: HOSPITAL EXECUTIVE IN A FRAUDULENT BILLING AND LIEN CASEA. Planning

§8:160 Deposition Overview§8:161 Timing

B. Goals, Strategies, and Preparation§8:170 Deposition Goals§8:171 Deposition Strategy

§8:171.1 Practice Tip: Asserting Control by Repeating a Question§8:172 Deposition Preparation§8:173 Deposition Exhibits



2. Preliminary Questions§8:190 Standard Introductory Questions

(Rev. 6, 11/12)


§8:191 The Witness’s Background§8:192 The Witness’s Job Duties

3. Other Background Questions§8:200 The Witness’s Preparation for the Deposition§8:201 Past Dealings With the Plaintiff§8:202 Practice Tip: Learn the Defendant’s Story

4. Case-Specific Questions§8:210 Facts Specific to the Named Plaintiff§8:211 Hospital Policy With Respect to Liens and Personal Injury Settlements§8:212 The Legal Authority for the Hospital’s Policy

§8:212.1 Practice Tip: Witnesses Who Question Meanings of Words§8:213 The Contractual Authority for the Hospital’s Policy§8:214 Other Legal Authority for the Hospital Policy§8:215 Informing Patients of the Hospital Policy§8:216 Policy for Identifying Patients With PI Claims§8:217 The Hospital’s Collection Practices§8:218 Numerosity Questions

5. Other Statements or Conversations§8:230 Conversations About the Incident or Lawsuit§8:231 Practice Tip: Place Events in a Time Frame


V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§8:250 Training Supervisor in Case Alleging Fraud by a Travel Company§8:251 Director of Finance in a Consumer-Fraud Case Against a Phone Company

VI. FORMSForm 8:01 Deposition Notice for a Corporate-Representative in a Consumer-Fraud Case

(With Reference to Illinois Rules)Form 8:02 Interrogatories in a Deceptive Trade Practices Case Involving Telephone Services

(With Reference to Illinois Rules)Form 8:03 Requests for Production in a Deceptive Trade Practices Case Involving Telephone

Services (With Reference to Illinois Rules)Form 8:04 Interrogatories in a Deceptive Trade Practices Case Involving Fraudulent Mortgage Loan

Servicing (With Reference to Missouri Rules)Form 8:05 Requests for Production in a Deceptive Trade Practices Case Involving Fraudulent

Mortgage Loan Servicing (With Reference to Missouri Rules)Form 8:06 Letter to Opposing Counsel Concerning Unanswered Discovery

(With Reference to Illinois Rules)Form 8:07 Requests for Admission in a Deceptive Trade Practices Case Involving Telephone Services

(With Reference to Illinois Rules)Form 8:08 Interrogatory Concerning Requests for Admissions in a Deceptive Trade Practices Case

Involving Telephone Services (With Reference to Illinois Rules)Form 8:09 Class Action Complaint in a Consumer Fraud Case (With Reference to Illinois Law)Form 8:10 Class Action Complaint in a Consumer Fraud Case (With Reference to Illinois Law, Pre-CAFA) Form 8:11 Motion to RemandForm 8:12 Memorandum in Support of Motion to RemandForm 8:13 Class Action Notice Form 8:14 Class Action Notice of Settlement


Form 8:15 Joint Motion for Preliminary Approval of Class Action SettlementForm 8:16 Preliminary Approval Order Form 8:17 Final Approval OrderForm 8:18 Memorandum in Support of Motion for Class Certification (Illinois Law)Form 8:19 Motion for Preliminary Approval of Class Action Settlement in a Fraudulent Billing CaseForm 8:20 Class Action Preliminary Approval Order in a Fraudulent Billing CaseForm 8:21 Motion for Class Notice (Illinois Law)Form 8:22 Memorandum in Support of Motion for Class Notice (Illinois Law)Form 8:23 Notice of Proposed Class Action Settlement in a Fraudulent Billing CaseForm 8:24 Final Settlement Order and Judgment in a Class Action

Chapter 9Breach of Contract

I. THE BREACH OF CONTRACT CAUSE OF ACTIONA. Theories of Recovery

§9:01 Overview§9:02 Plaintiff's Cause of Action§9:03 Existence of a Valid Contract§9:04 Offer and Acceptance§9:05 Consideration§9:06 Competent Parties§9:07 Legal Purpose§9:08 Breach and Remedies§9:09 Damages

B. Defenses to a Contract Action§9:20 Overview§9:21 Mistake§9:22 Fraud§9:23 Duress§9:24 Undue Influence§9:25 Illegality§9:26 Frustration of Purpose§9:27 Impossibility of Performance


§9:40 The Written Discovery§9:41 Requests for Admissions§9:42 Practice Tip: The Restatement (Second) of Contracts§9:43 Depositions of Corporate Representatives§9:44 Other Depositions§9:45 Opinions of Defendant's Experts


(Rev. 6, 11/12)


C. Typical Deponents§9:60 Overview§9:61 The Plaintiff's Liability Witnesses§9:62 The Plaintiff's Damage Witnesses§9:63 Practice Tip: Incivility Never Pays§9:64 The Defendant's Experts§9:65 Depositions the Defendant Will Take

III. SAMPLE DEPOSITION: DEFENDANT IN A BREACH OF CONTRACT CASEA. Setting the Stage

§9:70 Overview§9:71 Timing§9:72 Practice Tip: Documents Before Depositions

B. Goals, Strategies, and Preparation§9:80 Deposition Goals§9:81 Deposition Preparation§9:82 Deposition Exhibits



2. Preliminary Questions§9:100 Standard Introductory Questions§9:101 Practice Tip: Deposition Organization§9:102 The Witness's Background: Education§9:103 Practice Tip: Knowing the Law that Controls the Case§9:104 The Witness's Background: Work History§9:105 Practice Tip: Verifying Details of the Witness's Background§9:106 The Witness's Preparation for the Deposition

3. Background About Defendant's Car Dealership§9:110 Financial Statements Required by Auto Companies§9:111 More Background Regarding the "Adjusted Financial Statement"§9:112 Further Questions About Write-Downs§9:113 Bookkeeping by the Dealership§9:114 The Dealership's Profits Before the Sale§9:115 Practice Tip: Sizing Up the Witness

4. The Transaction at Issue in the Case§9:120 Basic Background About the Transaction§9:121 Practice Tip: Persistence Pays§9:122 Further Conversations About the Sale§9:123 Seller's Obligations§9:124 Practice Tip: Fireworks? Save It for the End of the Deposition§9:125 Whether Seller's Obligations Were Breached§9:126 Exhibits Related to the Transaction§9:127 Figuring Adjustments§9:128 Figuring Adjustments: Used Cars


§9:129 Purpose of Year-End Adjustments§9:129.1 Practice Tip: Agreeing to Breaks Suggested by Opposing Council

§9:130 Real Estate Involved in the Deal§9:131 Financial Statements: Recording New Car Sales§9:132 Preparation of Financial Materials Provided to Buyer§9:133 The Seller's Obligations: Due Diligence§9:134 More About Write-Downs and Adjustments§9:135 More About Profits

5. Further Exploration of Seller's Defenses§9:140 Other Anticipated Defenses§9:141 The Dealership Following the Sale

6. Admissions§9:150 Information Critical to the Sale of a Car Dealership

7. Other Witnesses§9:160 Other Conversations With the Buyers About the Sale§9:161 Other Witnesses: Defendant's Bookkeeper§9:162 Practice Tip: When the Witness Gets Impatient§9:163 Witnesses at the Defendant's Banks§9:164 Other Witnesses: Family Members


IV. SAMPLE DEPOSITION: DEFENDANT'S ACCOUNTING EXPERT IN A BREACH OF CONTRACT CASEA. Setting the Stage

§9:180 Overview§9:181 Timing§9:182 Practice Tip: Expert Designations

B. Goals, Strategies, and Preparation§9:190 Deposition Goals§9:191 Deposition Preparation§9:192 Deposition Exhibits




3. The Expert's File Materials and CV§9:220 Identifying the Expert's File Materials§9:221 Identifying the Expert's File Materials, Part 2§9:222 The Expert's CV

4. The Expert's Background§9:230 The Expert's Educational Background§9:231 Practice Tip: Investigate the CV Before the Deposition§9:232 The Expert's Work History§9:233 The Expert's Current Job

(Rev. 6, 11/12)


5. Past Work as an Expert§9:240 Consulting Work as an Expert§9:241 Income From Work as an Expert§9:242 Past Work for the Opposing Lawyer§9:243 Practice Tip: Persistence Pays Off

6. Work on the Present Case§9:250 What the Expert Is Charging§9:251 When and How Was the Expert Retained§9:252 Overview of the Expert's Work on the Case§9:253 Cross-Reference: Practice Tips From the Products-Liability Chapter§9:254 Communication With Lawyers About the Case§9:255 Communication With Others About the Case§9:256 Practice Tip: Take Your Expert to the Deposition§9:257 Preparation for the Deposition

7. The Expert's Opinions§9:270 Report Prepared by the Expert§9:271 Practice Tip: Using Professional Jargon§9:272 Process by Which the Report Was Prepared§9:273 Opinions Contained in the Report§9:274 Practice Tip: Opinions the Expert Does Not Plan to Give§9:275 Opinions Not Contained in the Report§9:276 Questions Regarding Opinion One§9:277 Questions Regarding Opinion One, Continued

§9:277.1 Practice Tip: Walking the Expert Out on a Limb§9:278 Additional Questions Regarding Opinion One§9:279 Questions Regarding Opinion Two§9:280 Practice Tip: Neutralizing the Expert§9:281 Questions Regarding Opinion Three§9:282 Questions Regarding Opinion Three, Continued§9:283 Follow-Up Questions About the Expert's Opinions

8. Testimony That Supports the Plaintiff's Case§9:290 Knowledge of and Disagreement With Other Experts§9:291 Practice Tip: Get the Expert's Assent to Undisputable Facts


V. SAMPLE DEPOSITION: PURCHASER OF A CAR DEALERSHIP IN A BREACH OF CONTRACT CASEA. Setting the Stage

§9:310 Overview§9:311 Timing§9:312 Practice Tip: Distinguish Between Custom and Legal Requirements

B. Goals, Strategies, and Preparation§9:320 Deposition Goals§9:321 Deposition Preparation§9:322 Practice Tip: Keep Your Eye on Your Deposition Calendar§9:323 Deposition Exhibits




2. Preliminary and Background Questions§9:340 Standard Introductory Questions§9:341 Personal Background§9:342 Practice Tip: Question Length§9:343 Educational Background§9:344 Work Background§9:345 Prior Bankruptcies§9:346 Prior Lawsuits

3. Further Background Questions§9:360 Felony Convictions§9:361 Preparations for the Deposition§9:362 Practice Tip: Discovering Conversations§9:363 Prior Experience in Running Auto Dealerships§9:364 Practice Tip: Asking About Job Duties

4. The Transaction at Issue in the Case§9:370 Mechanics of the Purchase of the Dealership§9:371 Conversations with Accountant Relating to the Sale§9:372 Practice Tip: To Keep Your Questions Short, Listen to Your Questions

5. The Operation of the Dealership after the Sale§9:380 Operation of the Dealership: In General§9:381 Operation of the Dealership: Becoming Part of the Community§9:382 Practice Tip: One Fact at a Time§9:383 Operation of the Dealership: Personnel Decisions§9:384 Operation of the Dealership: Knowledge of What Makes a Successful Dealership

6. The Failure of the Dealership§9:390 Failure of the Dealership§9:391 Practice Tip: Preparation and Length of Depositions§9:392 Reasons for Failure: Lack of Business§9:393 A Second Set of Books§9:394 The Second Set of Books: Continued Questioning§9:395 Practice Tip: Digging In§9:396 Reasons for Failure: Inability to Meet Debt Service§9:397 Reasons for Failure: Profitability That Was Represented§9:398 Reason for Failure: "Not Having All the Facts"§9:399 Practice Tip: Sometimes, You Have to Move On§9:400 Decision to Close the Business, Plus Collateral Litigation


VI. SAMPLE DEPOSITION: SECOND PURCHASER OF CAR DEALERSHIP IN A BREACH OF CONTRACTCASEA. Setting the Stage


B. Goals, Strategies, and Preparation§9:430 Deposition Goals§9:431 Deposition Preparation§9:432 Practice Tip: Learning What the Witness Doesn't Know§9:433 Deposition Exhibits

(Rev. 6, 11/12)




2. Preliminary and Background Questions§9:450 Standard Introductory Questions§9:451 Personal Background§9:452 Practice Tip: Don't Linger on the Preliminaries Too Long§9:453 Military Background§9:454 Educational Background§9:455 Practice Tip: Verifying Details of the Witness's Background§9:456 Work Background

3. Further Background Questions§9:460 Past Bankruptcy§9:461 Past Experience With Car Dealership

4. The Transaction at Issue in the Case§9:470 Purchase of Dealership: Background§9:471 Financial Analysis Prior to the Purchase of the Dealership§9:472 Further Analysis Following Agreement to Move Forward on the Purchase§9:473 Reasons for the Purchase of the Dealership§9:474 Practice Tip: Identifying Exhibits by Bates Number§9:475 Projected Profitability and Decision to Purchase the Dealership§9:476 Practice Tip: Asking for a Number Range§9:477 Criticism of the Accountant§9:478 Practice Tip: Another Tip for Forgetful Witnesses

5. Problems With the Sale§9:490 False Statements by the Seller§9:491 Practice Tip: Watch Out for Ambiguity in the Witness's Answers§9:492 Analysis of the Financials Prepared by the Buyer§9:493 Criticisms of Accounting Practices of Seller

6. Financial Documentation§9:500 Other Exhibits: Exhibit 4, Sales Projections§9:501 Other Exhibits: Exhibit 5, Analysis of Sales Projections§9:502 Practice Tip: Look Over the Documents Before Ending the Deposition§9:503 Other Exhibits: Exhibit 6, Sale and Profit Forecast


VII. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES§9:520 Deposition of a Building Contractor in a Breach of Contract Case

VIII. FORMSForm 9:01 Petition for Breach of Contract and Other Causes of Action in a Case Concerning the

Sale of Car Dealership (With Reference to Missouri Rules)Form 9:02 Requests for Production in a Breach of Contract Case Concerning the Sale of Car Dealer-

ship (With Reference to Missouri Rules)Form 9:03 Interrogatories to Defendant Accountant in a Breach of Contract Case Concerning the

Sale of Car Dealership (With Reference to Missouri Rules)


Form 9:04 Interrogatories to Defendant Accountant in a Breach of Contract Case Concerning theSale of Car Dealership (With Reference to Missouri Rules)

Form 9:05 Deposition Notice (With Reference to Missouri Rules)Form 9:06 Petition for Breach of Contract and Other Causes of Action in a Case Concerning the

Sale of Computer Software (With Reference to Missouri Rules)Form 9:07 Interrogatories in a Breach of Contract Case Concerning the Sale of Computer Software

(With Reference to Missouri Rules)Form 9:08 Requests for Production in a Breach of Contract Case Concerning the Sale of Computer

Software (With Reference to Missouri Rules

Appendix AOther Representative Depositions

I. INTRODUCTIONA. The Purpose and Use of the Appendix

§A:01 Purpose§A:02 How to Use the Appendix

B. Selecting and Editing§A:10 How the Depositions Were Selected§A:11 How the Depositions Were Edited

C. Brief Descriptions of the Depositions§A:20 Sample Deposition 1: Deposition of a Plaintiff’s General Liability Expert in a

Product Liability Case§A:21 Sample Deposition 2: Deposition of a Treating Physician in a Pharmaceutical Case§A:22 Sample Deposition 3: Deposition of Plaintiff’s Expert Toxicologist in a Mass

Tort Case

II. SAMPLE DEPOSITION 1: DEPOSITION OF A PLAINTIFF’S GENERAL LIABILITY EXPERT IN APRODUCT LIABILITY CASEA. Setting the Stage

§A:30 The Parties§A:31 The Dispute§A:32 Major Issues§A:33 What to Look For

B. The Deposition§A:40 Deposition Questions and Answers

III. SAMPLE DEPOSITION 2: DEPOSITION OF A TREATING PHYSICIAN IN A PHARMACEUTICAL CASEA. Setting the Stage



(Rev. 6, 11/12)


IV. SAMPLE DEPOSITION 3: DEPOSITION OF A PLAINTIFF’S EXPERT TOXICOLOGIST IN A MASSTORT CASEA. Setting the Stage



Index


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