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Basic Skills for New Attorneys

Depositions

April 2009 Springfield, IL

Eric Parker

Stotis & Baird Chartered 200 W. Jackson Blvd.

Suite 1050 Chicago, Illinois 60606

312-461-1000 eparker@stotis-baird.com www.stotisandbaird.com

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I. Statutory Bases

The statutory rules governing the taking of depositions are not lengthy. It is worth the

time to take a few moments to review the rules. The basic statutes covering depositions are as

follows:

• IL Sup Ct. Rule 202 • IL Sup Ct. Rule 203 • IL Sup Ct. Rule 204 • IL Sup Ct. Rule 205 • IL Sup Ct. Rule 206 • IL Sup Ct. Rule 207 • IL Sup Ct. Rule 208 • IL Sup Ct. Rule 209 • IL Sup Ct. Rule 211 • IL Sup Ct Rule 212 • IL Sup Ct Rule 219 • 735 ILCS 5/2-1003

II. Depositions Basics

A. Types of Depositions

Illinois law recognizes two types of depositions – Discovery and Evidence. A discovery

deposition is used to obtain information about the case under oath. The scope of a discovery

deposition is the same as for all discovery – that it must be calculated to lead to discoverable

information. The scope is much broader than what may be asked at trial. The testimony elicited

from a discovery deposition may not generally be admitted directly into evidence at trial. 1 If a

witness testifies inconsistently with his discovery deposition, however, the transcript can be used

to impeach the witness at trial.

1 Discovery depositions taken in Federal Court may be used in evidence, however, Federal Procedure is beyond the scope of this presentation.

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An evidence deposition is a substitute for trial testimony. After the judge has ruled upon

any objections, the transcript of an evidence deposition will be read directly to the jury. As a

result, it is subject to all of the same objections that would be applicable at trial. Often, evidence

depositions are videotaped in order to make the presentation more interesting for the jury. The

rules permit videotaping any deposition so long as the deposition notice specifies that it will be

videotaped. Evidence depositions are only allowed to be used at trial in place of live testimony if

certain conditions are met. In practice, they are primarily used for out of state witnesses and

medical experts.

B. Setting Up The Deposition

The deposition of a party may be scheduled simply by sending notice to the opposing

attorney. It is their obligation to produce the witness at the specified time and place. Taking the

deposition of a non-party requires a subpoena, or the agreement of the witness. In all cases, it is

preferable to try to schedule the location and time of the deposition by agreement. A simple

phone call can save a lot of frustration.

The deposition must take place in the county where the action is pending, (in the case of a

party to the lawsuit) or the county where the deponent resides (in the case of a non-party

witness). In the case of a subpoena deposition, it is necessary to forward a check for the witness

fee and mileage to the site of the deposition.

Depositions must be taken before a notary – typically a court reporter. The witness will

be sworn in at the beginning of the deposition and therefore, the court reporter must be present

with the witness. Although the rules do not specifically provide for depositions over the

telephone, they are commonly agreed upon by the parties. When agreed upon, however, the

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party scheduling the deposition must ensure that a court reporter is present with the witness to

administer the oath.

C. Cost Issues

The person who requests the deposition has the obligation to pay any subpoena fee for

the witness and to pay the appearance fee of the court reporter. Typically, the court reporter’s

appearance fee is about $125.00. At the end of the deposition, the court reporter will ask if

anybody wants to order the transcript. If somebody orders an “original” the reporter will ask if

anybody wants a “copy.” The original typically costs about twice as much as a copy. As a

result, it is usually the person who would need the deposition at trial who pays for the original

(i.e. Plaintiff orders Defendant’s deposition and Defendant orders Plaintiff’s).

D. Experts

Cost issues in expert depositions are more substantial. A physician expert is entitled to

be paid a reasonable fee for their time giving a deposition. It is not unusual for a busy

Orthopedist, for example, to charge $750/ hour for their time. With respect to non-retained

experts, (such as a Plaintiff’s treating physician), the burden to pay their hourly rate falls on the

party requesting the deposition. Retained experts (such as an independent medical examiner),

must be paid by the party who retained them. In a typical example, the Defense may hire an

independent medical examiner to examine the Plaintiff and testify at trial about the injuries.

When the Plaintiff schedules the doctor’s discovery deposition, the Defendant must pay the

expert’s hourly rate.

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If a doctor or expert seeks an outrageous hourly rate, it is incumbent upon the requesting

party to file a motion seeking a reduction. Whether this is worthwhile depends upon the

importance of the witness and the extent to which the fee is unreasonable.

Depositions of physician experts can only be taken by agreement of the parties and the

physician, or pursuant to subpoena issued upon order of the court. The vast majority of the time,

these depositions are scheduled by agreement. It is worthwhile to know, however, that court

approval can be required if the parties or the doctor are not amenable to an agreement.

E. Ground Rules

Absent approval by the court, depositions are limited to three hours. In complex cases,

courts are receptive to motions to extend the time. In simple cases, an extension is rarely

necessary or granted. Any person may request a break during a deposition, however, the

questioning party has a right to have a pending question answered before the break.

The first thing to happen in the deposition is that the court reporter will administer the

oath. Thereafter, the questioning attorney will typically make a statement along the following

lines:

Let the record reflect that this is the (discovery / evidence) deposition of Jane Doe, being taken pursuant to (notice / subpoena) and scheduled by agreement of the parties. It is taken pursuant to the Illinois Supreme Court Rules, the Illinois Code of Civil Procedure and the local rules of this judicial circuit.

Often, the questioning attorney will then give the witness a few ground rules before

beginning their questions in order to help create a clean record. This includes things like

reminding the witness not to talk at the same time as the questioner.

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Any party to the lawsuit and their attorney are allowed to be in the room during the

deposition. Non parties are not allowed to be present for the deposition. Attorneys sometimes

ask to have a non-party present for a deposition (for example a child may be allowed to have a

parent present). Such requests are often agreed upon as long as the non-party is not going to be a

trial witness.

At the end of the deposition, the court reporter will ask if the witness will “waive

signature” or “reserve signature.” If a witness waives signature, it means that they will trust that

the court reporter accurately transcribed their words. If they reserve signature, the witness gets

an opportunity to read the transcript and note any inaccuracies. The witness does not, however,

get to make substantive changes. Customarily, the attorney will answer for a party whom he or

she represents. Non-party witnesses must answer for themselves. If there is any doubt about the

transcription, it is preferable to reserve signature.

F. Objections – Discovery Depositions

In a discovery deposition there are only three generally accepted objections to a question:

1. Form of the question

An attorney may object to the form of a question, so that the questioner may attempt to

correct the form at the time. Form objections include compound questions, vague or ambiguous

questions, etc.

2. Privilege

An attorney can and should object to a question that calls for the client to violate a

privilege. Most typically, the privilege at issue is the attorney-client privilege.

3. Irrelevant and not calculated to lead to anything relevant

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Irrelevant questions are allowed in discovery depositions. If, however, the question is

grossly irrelevant to the point that it could not even lead to anything relevant, it is objectionable.

The problem with objecting in a deposition is that there is nobody to rule on the

objection. As a result, the attorney must make a decision whether to allow his or her client to

answer or to instruct the client not to answer. Generally, it is advisable to allow your client to

answer over your objection if the matter is inconsequential. If, however, the question calls for

privileged information, or is truly offensive, a refusal to answer is appropriate. An attorney only

has a right instruct their own client not to answer.

In response to a refusal not to answer, many attorneys will ask the court reporter to

“certify the question.” A number of years ago, this was a necessary step before bringing a

motion to compel an answer to the question. It is no longer required.

III. Presenting a Party for a Discovery Deposition

A. Witness Preparation

Presenting a client for a deposition is primarily a question of preparing them to testify.

Once the deposition starts, 90% of the lawyer’s job is done. The following steps are a good

format for preparing the witness to testify:

1. Familiarize them with the process

Clients almost never understand the purpose of a deposition when they arrive at the

office. They are also nervous about the process and on edge. It can help to explain where the

deposition will take place, who will be present and why they must participate. It is reassuring to

some people to know that all of the parties to the lawsuit will eventually have to give a

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deposition. For nervous clients, it can also help to remind them that they will not be “tricked”

because they are only going to be telling the truth.

The most important thing to get across to the client is how the deposition will be used. In

short, they need to know that their trial testimony will be limited by what they say at the

deposition. At the deposition, if they say that they only hurt their lower back in the car accident,

it will be difficult for them to claim that they also hurt their neck when the case comes to trial.

2. Let them tell you their story

Several years ago a group of researchers determined that police officers were doing a bad

job of interviewing witnesses. The problem was that they interrupted the witnesses frequently, to

get further details. People do a better job of remembering the details if they are allowed to

follow their own natural memory patterns without interruption. As a result, it is best to ask the

client to tell you what happened in as much detail as possible. Thereafter, you can go back and

ask specific questions.

3. Go over difficult questions they will face

Most cases boil down to one or two key events. In a trip and fall case, for example, there

will always be an issue about whether the defect was “open and obvious.” It is best to discuss

these issues with the client before the deposition. Then try asking them the hard questions

yourself to make sure they can handle it. If they can’t give a credible explanation to you, they

certainly won’t do it for your opponent.

4. Review documentary evidence

If a document or a photograph will be a significant issue in the case, you should show

them to the client before the deposition. Especially in premises liability cases, this step is

imperative. The attorneys will almost always ask the party to identify the exact location of the

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defect in the photograph and mark it with an X or etc. An unprepared client can easily

misidentify the location and cause endless headaches for the attorney.

5. Go through witness preparation checklist

Most attorneys have a list of deposition “rules” for clients to follow. Clients don’t always

remember, or follow them, but it is worth a try. One sample checklist is attached as Appendix B.

B. Producing the party at the deposition

The deposition itself is relatively easy for the attorney. Formally, the only requirement

(in a discovery deposition) is to object to questions that are in improper form, privileged or

wholly irrelevant. Informally, the job of the presenting attorney is to make sure that the client is

understood. Frequently, attorneys can tell when their client does not understand a question.

They may also be able to tell that the client is getting angry, irritable or impatient. These are

times to take a break and give them a chance to regroup. Giving the client an example of how

they are rambling, for example, may help them to stop doing it.

C. “Redirect” questioning

After the questioner has finished asking questions, all of the other attorneys involved in

the case have a chance to ask questions. In larger cases, it is not unusual to go around the table a

couple of times before concluding the deposition. Although attorneys often ask questions of

their own clients, it is seldom a good idea. The obvious reason not to ask questions of your

client is that you could just as easily ask them when you are no longer on the record with the

other attorneys. It is a good idea, however, to ask follow up questions in two limited

circumstances:

1. Your client has misstated something

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When this occurs, the misstatement may be used against them at trial. As a result, it is a

good idea to clarify their answer with further questioning. Do this only if you know they can

correct it.

2. Undisclosed Opinions

Under the current Supreme Court Rules, the failure to disclose certain opinion testimony

can result in that testimony getting barred at trial. If the questioner has failed to elicit an opinion

that you want to use at trial and have not otherwise disclosed, it can be wise to ask sufficient

questions to disclose it.

IV. Taking the Deposition of a Party or Witness

Taking the deposition of a party or important witness is one of the most important aspects

of discovery. It requires a good knowledge of the case and the law, but also a fair amount of

strategy. For lawyers who expect to be taking depositions frequently, it is a good idea to get a

good book about deposition taking. One such book is “The Effective Deposition” by Malone.

Many others are commercially available. Attending seminars on deposition technique can also

be helpful. The best way to learn good deposition technique, however, is to attend depositions

taken by good lawyers. Early in your career you may be able to convince lawyers in your office

to let you come along to depositions. As you progress, presenting clients for a deposition can

provide a useful opportunity to learn skills.

The following are some general guidelines that may also help:

A. Set Deposition Goals

The easiest and most overlooked aspect of taking depositions is setting goals for the

outcome. With each witness, there are two or three things that are important to the case. You

should know what those things are and how you expect to obtain that testimony. That is your

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goal. You may learn other helpful facts during the deposition, but you should not leave the room

until you have attempted to meet those goals. If you are not sure what you want to get from the

witness, you are not sufficiently prepared. Review the prima facie case for the cause of action,

and determine what is necessary.

B. Prepare for the Deposition

There is no substitute for good preparation. Particularly with respect to expert

depositions, it is imperative to know the circumstances before the deposition. If you use the

deposition to learn what a herniated disc is and how it could affect someone, you are not going to

do a good job of cross examining an orthopedist about the cause of the herniation.

It is not necessary (or even advisable) to let the deponent know how much you know

about the case. Being prepared, however, will allow you to get more out of the deposition.

C. Prepare your Questions

More experienced attorneys will often joke about inexperienced lawyers who write out

their deposition questions in advance. Far worse, however, is to take a rambling deposition that

misses all of the important facts. It is good to listen to the answers and adapt your questioning

accordingly. Simply reading the questions without regard to the answers is not sufficient. It is a

rare attorney, however, that can remember to ask everything important without notes. Writing

out the questions also forces you to prepare. It may also help you to see that the order of the

questions is flawed. Some attorneys keep deposition questions in a form on the computer and

revise it based on the specifics of the particular case. A copy of one such form is attached as

Appendix A.

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D. Strategy Considerations

There are literally hundreds of strategy considerations which may come into play in a

deposition. Much of the advice is contradictory. Here are a few considerations that are widely

considered to be sound advice:

1. Insist Upon an Answer

Probably the biggest mistake made by inexperienced attorneys is to fail to get an answer

to the question they asked. Some witnesses ramble. Other witnesses are deliberately evasive.

Some answer a question other than the one which is asked. It is incumbent upon the questioner

to go back and ask the question again, as many times as necessary until they get an answer.

2. Use Good Questioning Form

The purpose of a deposition is to obtain short statements to impeach the witness with at

trial. It is very difficult to impeach a witness with a poorly worded question, or a poorly worded

answer. For that reason, it is best to slow down your questioning and ask simple, direct

questions. When the witness answers with a long rambling answer, you have a similar problem.

You can correct this by re-asking the question until you get a simple answer.

Ex. Q. What happened next?

A. I turned into the intersection and saw my friend on the side of the road and then the car hit me.

Q. Did you apply the brakes? A. The whole thing happened so fast, I just was traveling at a normal rate of speed

and the next thing I know there’s a car smashing into me and my head was killing me…

Q. You did not apply the brakes at any time, correct? A. Correct.

At trial, if the witness claimed to have applied the brakes, the first two answers would be

difficult to use to impeach him. The last question and answer, however, is simple and direct.

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Remember that you can ask leading questions at a deposition. When questioning an

adverse witness, it is often a good idea to use leading questions. If an attorney objects to the use

of leading questions, do not let it deter you. Even an attorney who objects on this basis will

usually not instruct the client not to answer for that reason. As a result, you can continue to ask

them in leading form.

3. Don’t get dragged into pointless arguments

The most unnerving part of taking depositions for inexperienced lawyers is dealing with

an unruly opposing counsel. There are a small number of attorneys who object and complain

and argue, just to make it difficult for the questioner. It can help to remember that there are only

two options for the attorney presenting the witness: they can object and allow the client to

answer, or they can object and instruct the client not to answer. It is your duty to find out which

they will chose. If they allow them to answer, the problem is solved. If they refuse, on the

record, you can ask a judge to review it later. There is no need for any further argument.

Engaging in a lengthy debate does not improve the record, it simply causes your client to become

more anxious.

For most regular lawyers, frustrating arguments can be avoided by simply being polite.

4. It is not necessary to “win” the deposition

Sometimes it is better if the witness does not realize that you got something good during the

deposition. In some circumstances you can spread key questions throughout the deposition, so

that they do not realize the point of your questions. It may not look impressive during the

deposition, in fact, the witness may leave feeling like it was no big deal. The real goal, however,

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is to succeed at trial. Another technique that can help is to always have another question ready.

If the witness says something helpful, ask another question immediately. A sharp witness will

sometimes realize that they have given you too much and begin to qualify their statement. If you

have already moved on to the next question, this will usually not happen.

5. Slice the Salami Thin

When you get to the critical issues in the deposition, it is a good idea to ask very narrowly

defined questions. It is also possible to ask an overview question and then go back and ask the

detail questions. Witnesses are more likely to gloss over their mistakes in response to a general

question. It is also more likely to generate useful cross examination because each fact will be

nicely isolated in the transcript.

V. Expert Depositions

Expert depositions are the most problematic for new lawyers. Fortunately, the process has

become much easier. Thanks to the internet, it is now possible to develop a basic knowledge

about almost anything in a reasonably short period of time. After a number of years of practice,

certain categories of expert witnesses will become easy. For example, an experienced personal

injury attorney will need little preparation for the deposition of an orthopedist. In the early years,

however, working with an experienced attorney can help a great deal.

One thing that is essential to all expert depositions is preparation. It is not possible to know

as much as the witness in the field of their expertise. The lawyer should strive, however, to

know as much as the witness on the particular issue involved. For example, the lawyer cannot

know as much about architecture generally as an architect. They can, however, become as

knowledgeable as the architect on the issue of whether the building code requires safety railing

for staircases over 7 feet in height.

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Sometimes, a knowledge deficit can be overcome by research. If you have a retained expert

in the case, you might consult with them about what questions you should be asking. It may also

be helpful to schedule depositions of less important players first. In a paramedic malpractice

case, for example, the lawyer might start by taking depositions of paramedics who were not

directly involved in the Plaintiff’s treatment. Through them, the lawyer can learn the applicable

standards, rules and practices. After obtaining and learning the standards, they can then proceed

with depositions of the key players.

There are two major categories of expert witnesses: The non-retained expert witness (ILSCR

213(f)(2)) and the retained expert witness (ILSCR 213(f)(3)). A typical example of a non-

retained expert is a doctor who treated a personal injury victim and may testify about the

treatment he provided. A retained expert is someone hired by an attorney in the case to provide

testimony about a particular topic. They can be independent medical examiners, architects,

premises safety experts, engineers or just about anything else. Each type of deposition has its

own challenges.

A. Non-Retained Experts

1. Presenting a Non-Retained Expert for Deposition

The main thing to remember about non-retained experts is that you do not represent them.

They are not obligated to talk to you. More importantly, the conversations that you have with

them are not privileged. Lawyers can and do ask about the substance of any conversation that

they have with you.

Nevertheless, it is worth the effort to try to talk to them. Because these experts are not

directly involved in your case, they may not be well prepared for the questions they will face.

They have little motivation to prepare for the deposition by reviewing records or performing

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research. At a minimum it is helpful to meet with them, tell them the key issues in the case, and

point out key records. If the witness is more important, it may be worthwhile to schedule a

meeting several weeks in advance of their deposition. In some cases, you may even offer to pay

them their hourly rate to read the records in detail before their deposition.

Some experts also need to be reminded of the burden of proof. Under Illinois law, a

proposition must be “more likely true than not true.” With scientific experts, in particular, they

are accustomed to addressing things in terms of scientific certainty. The difference can be

important.

2. Taking the Deposition of a Non-Retained Expert

There is no single outline for the deposition of a non-retained expert. The questions and

concerns vary widely from deposition to deposition. Within specific practice areas, however,

there are common types of depositions. The best way to learn how to take these depositions is to

work with an experienced attorney to prepare. There are some general guidelines that may help,

however.

a. Foundation Necessary to Give Opinions

The foundation required for an expert witness to testify about any opinion is that they

hold that opinion “To reasonable degree of certainty” in their field of expertise. For example, in

the deposition of an orthopedist, the attorney will typically ask “Based upon a reasonable degree

of medical certainty, was the back injury caused by the collision on 11/2/06?” If the attorney

asks the question without this qualifying language, the opposing attorney may object that the

question lacks foundation. This distinction may not be critical in a discovery deposition, but in

an evidence deposition, it is very important. Sometimes it is possible to minimize the need for

this by asking the expert at the beginning of the deposition if he or she can agree that all of their

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opinions will be based upon a reasonable degree of [medical] certainty. If the opposing attorney

objects to this blanket agreement, however, the questioner must be prepared to phrase each

opinion question appropriately.

b. Be Prepared to Utilize Necessary Records

The expert often has not reviewed the records. Frequently, they have not even organized

the relevant records. For this reason, the attorney must be prepared to direct the witness to

specific items in the records – and even provide them with a copy if necessary. A disorganized

lawyer will waste time and lose the chance to inquire about important issues.

c. Credentials

In almost every expert deposition, it will be important to investigate the expert’s

credentials. Most experts will be able to provide a professional resume before the deposition

(doctors call this a Curriculum Vitae). The goal of any such questioning is to make sure that the

witness is qualified to give the opinions that they hold in the case. It can also be helpful in

determining that others may be more qualified to talk about a particular issue.

d. Use the Deposition to Find Other Cross Examination Materials

There are dozens of pieces of cross examination that you may be able to obtain after the

deposition based upon the answers they provide. Here are a few examples:

ii. Find out if the witness has given depositions in other cases.

iii. See if they will agree that certain texts are authoritative in their field of

expertise.

iii. Find out if they have published any articles on the topic at issue in your

case.

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After the deposition is over, you can review these materials and determine if there is

anything that contradicts their deposition testimony.

B. Retained Experts

The deposition of a retained expert is probably the most complicated deposition for an

attorney to take. An example of a retained expert is a doctor hired by the Plaintiff’s attorney to

testify that the Defendant doctor committed malpractice. These witnesses are accustomed to

testifying and answering tough questions. They are extremely well versed on the topic that they

will testify about. They are not likely to be shaken from their opinions about the case.

Therefore, the goals of such a deposition are different.

Primarily, the attorney in this type of deposition is seeking to gain information that

accomplishes one of the following goals:

1. Challenges the basis of their opinions

2. Challenges their credentials to give these opinions

3. Exposes their biases

The good news about experts is that it is often possible to obtain substantial information

about them before the deposition. Because these experts are deposed often, it is usually possible

to obtain copies of prior depositions of these witnesses. Even an inexperienced attorney can end

up taking a great deposition of an expert after reading the depositions that several experienced

attorneys have taken of that same expert.

Bias is often easy to establish as well. Most retained experts are well paid for their

efforts. Many of them make a substantial portion of their income each year by testifying for

Defendants or Plaintiffs. Relatively few of them work on both sides of the fence. Uncovering

these biases can be invaluable.

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C. Don’t Forget What they Did Not Say

It is common for attorneys to go through the expert’s report and question them about each

item in the report or the records. This can overlook a very important angle – what is not in the

report. Imagine an architect who is testifying in a negligent design case. The expert writes a

report stating that the building was designed and built in conformity with all applicable building

codes. Specifically, the expert opines that the railings were the exact height required by the

building code and of sufficient strength, etc. An attorney who comes in and tries to challenge the

expert on the building code is not likely to gain much ground. What if, however, the staircase

complies with the local building code, but it does not comply with the Americans with

Disabilities Act? Or what if the railing that was installed does not meet the ANSI standard for

railings? If the attorney limits the questions only to the topics addressed in the report, they could

miss a great opportunity.

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APPENDIX A

Deposition of Defendant Motor Vehicle Accident

DOA: At:

I. Oath / Statement / Directions II. Preliminary Questions

• Name/Maiden Name/Alias • Address (for 10 years)

• Date of Birth • Social Security Number

• Highest Level of Education

• Employment History

i. Current Employer

-Position -How long at job

ii. Employer at Time of Accident -Position -Shift / Hours per week -Work anywhere else at same time -How long at job -Why did you leave

VI. Bias / Impeachment

• Know any of the parties involved in this case? • Friends? • Have you been convicted of a felony in the past ten years? • Have you been convicted of a false statement crime at any time?

(Perjury/Forgery/Theft)

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III. Pre-Accident Questions Distractions What were you doing in the car in the moments before the accident? On a Cellular phone? -Have one at time? -Who was the carrier? -What was the phone number? -In your name? Radio on in car? Windows up or down? Anyone in car with you? How many? Who? Conversation? Corrective Lenses

Were you wearing corrective lenses at the time of the accident?

-Do you ever wear corrective lenses? (glasses or contacts) -Have any vision problems? (what problem) -Required to wear glasses on your drivers license? -Last eye exam before accident? (where / when)

Medical Conditions / Intoxication

Take any prescription medications on date of accident?

-Which?

Take any non prescription drugs on DOA? Drink any alcohol within 12 hours before accident? At the time of this accident, did you have any medical condition that prevented you from driving?

Describe Car What type of car were you driving? Did you own that car? Had you every driven that car before?

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What was the mechanical condition of the car at that time? Conditions at TOA Weather? Roadway condition? Visibility? Did the wearther contribute to the accident? Light or dark? (roadway lighted?) Route / Time frame What day of the week did that accident happen? (weekend vs. weekday) Where were you going? What time were you supposed to get there? Where were you coming from? When did you leave? What route do you take from ____ to ____? Where did accident happen? What time did the accident occur? Describe Roadway How many lanes on _________ Rd.? Traffic light? Stop Sign? Etc. -How far when you first saw? -Color at that time? -Ever change to a different color? Anything blocking view? What was the speed limit in that area?

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Did you have time to apply the brakes before impact? Your speed before applying brakes? Your speed at time of impact?

IV. Accident Information When did you first see the other vehicle? -Time (how many seconds) -Distance (how many feet) -Anything obstructing your view? (Cars/trees/etc.) -How fast was that car moving? -Could you see what the other driver was doing in his/her car before impact? Precise location of point of impact -On roadway (in relation to landmarks and streets) -On Car (what part of car did x hit) Avoidance attempts: -Did you swerve? (Which way) -Honk? (Other car?) -Apply Brakes? (Did other car?) Describe Impact -Hard, Moderate or Light? -Did car move after it was hit? -How far? -Where did the cars wind up? Were you injured as a result of the accident? Damage to car: -Damaged? -Repaired? (By whom/cost) -Totaled? (Who estimated/evaluated) Observations after accident: -Did you get out of the car after the accident? -Look at damage to cars? -Did Plaintiff get out? -Have any idea if Plaintiff was injured? Did you talk to anybody after the accident?

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Who (police/other drivers/witnesses) What was said during that conversation? Did Police Officer take stmt? Overhear conversations of others? Have you talked to Plaintiff or witnesses since that date? -When? What said? -Traffic court? How did Plaintiff leave the scene of the accident? -Who called ambulance? -How long before ambulance arrived? -Conversations with ambulance personnel? Were you ticketed? -How did you plead to ticket? -Conversations in Court?

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APPENDIX B

INSTRUCTIONS TO WITNESS FOR DEPOSITION

A. TELL THE TRUTH B. WAIT TWO SECONDS BEFORE ANSWERING THE

QUESTION.

C. ANSWER ALL QUESTIONS OUT LOUD

D. UNDERSTAND THE QUESTION OR ASK

E. ANSWER ONLY THE QUESTION

F. DO NOT GUESS OR SPECULATE

G. “DON’T KNOW” OR “DON’T REMEMBER?” – SAY SO

H. DON’T LOOK TO ME FOR SIGNALS

I. NOTHING IN THE DEPOSITION IS OFF THE RECORD

J. THE OTHER ATTORNEY IS TRYING TO ASSESS WHAT TYPE OF WITNESS YOU WILL MAKE AT TRIAL

K. DO NOT LET THE ATTORNEY INFLUENCE YOUR

ANSWERS

L. BE CAREFUL ABOUT ESTIMATING SPEEDS AND DISTANCES

M. NEVER USE HUMOR OR SARCASM IN YOUR ANSWER

N. IF YOU MAKE A MISTAKE – CORRECT IT ON THE

RECORD AS SOON AS YOU REALIZE YOU MADE IT.