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
Index
Expanded Table of Contents
Chapter 1: Deposition Procedures and Strategies
I. How to Use This Book
A. 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
II. Purposes and Uses of Depositions
A. 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 Depositions
A. 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 Write Out 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
IV. Typical Deposition Procedures
A. 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 Techniques
A. 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 Depositions
A. 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 Depositions
A. 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 to the 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
VIII. Advanced Deposition Techniques
A. Managing
the Witness
§1:250
Get the Witness Acting Like a
§1:251
Make the Witness Feel at Home
§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
Chapter 2: Vehicular Liability
I. Elements of the Plaintiff’s Cause of Action
A. 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 Plan
A. 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-Driver
A. 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 Outline
1. 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
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 Report
A. Setting the Stage
§2:180 Overview
§2:181 Timing
B. Deposition Goals, Preparation, and Exhibits
§2:190 Deposition Goals
§2:191 Deposition Preparation
§2:192 Deposition Exhibits
C. The Deposition Outline
1. Background Facts and Thumbnail Outline
§2:200 Background Facts
§2:201 Thumbnail Outline/Deposition Checklist
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
§2:222 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 Expert
A. Setting the Stage
§2:240 Overview
B. Deposition Goals, Preparation, and Exhibits
§2:250 Deposition Goals
§2:251 Deposition Preparation
§2:252 Deposition Exhibits
C. The Deposition Outline
1. Background Facts and Thumbnail Outline
§2:260 Background Facts
§2:261 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§2:270 Standard Preliminary Questions
§2:271 Past Deposition and Trial Testimony
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
§2:324 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. Forms
Form 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)
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 3: Premises Liability
I. Elements of the Plaintiff’s Cause of Action
A. 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 Plan
A. 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 Deponents
1. 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
III. Sample Deposition: Store Manager in a Slip-and-Fall Case
A. 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 Outline
1. Background and Thumbnail Outline
§3:130 Background Facts
§3:131 Thumbnail Outline/Deposition Checklist
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
§3:164 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
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
§3:240 Overview
§3:241 Timing
B. Goals, Strategy and Preparation
§3:250 Deposition Goals
§3:251 Deposition Strategy
§3:252 Deposition Preparation
§3:253 Deposition Exhibits
C. The Deposition Outline
1. Background and Thumbnail Outline
§3:260 Background Facts
§3:261 Thumbnail Outline/Deposition Checklist
§3:262 Practice Tip: Who Should Read the Deposition
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
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
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. Forms
Form 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 4: Products Liability
I. The Products Liability Cause of Action
A. 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
§4:23 Statute of Limitations
§4:24 Statute of Repose
§4:25 Caution: The Changing Nature of the Law of Products Liability
II. The Discovery Plan
A. Sequence and Timing
§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
C. Typical Deponents
1. General Points
§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 Testing
A. 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
C. The Deposition Outline
1. Background and Thumbnail Outline
§4:130 Background Facts
§4:131 Thumbnail Outline/Deposition Checklist
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 Case
A. 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 Outline
1. 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 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
§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
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 Repared
§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 Lawsuit
A. Setting the Stage
§4:320 Overview
§4:321 Timing
B. Goals, Strategy and
Preparation
§4:330 Deposition Goals
§4:331 Deposition Preparation
§4:332 Deposition Exhibits
C. The Deposition
Outline
1. Background and
Thumbnail Outline
§4:340 Background Facts
§4:341 Thumbnail
Outline/Deposition Checklist
2. Preliminary
Questions
§4:350 Standard Introductory
Questions
§4:351 Past Deposition and
Trial Testimony
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
9. Closing
§4:440 Closing Questions
VI.. Sample Deposition:
Pharmaceutical Representative in a Product Liability Case
A. Setting the Stage
§4:450 Overview
§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
C. The Deposition Outline
1. Background and
Thumbnail Outline
§4:470 Background Facts
§4:471 Thumbnail
Outline/Deposition Checklist
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 Case
A.. 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
C. The Deposition Outline
1. Background and Thumbnail
Outline
§4:580 Background Facts
§4:581 Thumbnail
Outline/Deposition Checklist
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
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 lolan Makes
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. Forms
Form 4:01 Notice of Corporate-Representative
Deposition of Defendant Manufacturer (With Reference to
Form 4:02 Notice of Corporate-Representative
Deposition of Defendant Retailer (With Reference to
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 Replacement
Form 4:06 Interrogatories in a Medical Device Case
Alleging a Defective Hip Replacement
Form 4:07 Requests to Produce in a Medical Device
Case Alleging a Defective Hip Replacement
Chapter 5: Medical Malpractice
I. The Medical Malpractice Cause of Action
A. 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
II. The Discovery Plan
A. Sequence and Timing
§5:30 General Sequence
§5:31 Caution: Pre-Litigation Collection of Medical Records
§5:32 Interrogatories
§5:33 Requests for Production
§5:34 Depositions
§5:35 Requests for Admissions
§5:36 Written Discovery of Defendant’s Experts
§5:37 Practice Tip: Selecting Your Medical Expert
§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
C. Typical Deponents
1. General Points
§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 Physician
A. Planning
§5:100 Overview
§5:101 Timing
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
C. The Deposition Outline
1. Background Facts and Thumbnail Outline
§5:120 Background Facts
§5:121 Thumbnail Outline/Deposition Checklist
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
§5:134 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
§5:37.1 Practice Tip: Selecting an Expert Who Has Testified for the Defense
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
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 Physician
A. Planning and Preparation
§5:220 Overview
§5:221 Timing
§5:222 Goals, Strategy, Preparation, and Exhibits
B. The Deposition Outline
1. Background Facts and Thumbnail Outline
§5:230 Background Facts
§5:231 Thumbnail Outline/Deposition Checklist
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
§5:247 Teaching and Publishing
§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
§5:283 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 Physician
A. Setting the Stage
§5:310 Overview
§5:311 Timing
B. Goals, Strategy, Preparation and Exhibits
§5:320 Deposition Goals
§5:321 Deposition Strategy
§5:322 Deposition Preparation
§5:323 Deposition Exhibits
C. The Deposition Outline
1. Background Facts and Thumbnail Outline
§5:330 Background Facts
§5:331 Thumbnail Outline/Deposition Checklist
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 Witnesses’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
8. Closing
§5:410 Closing Questions
VI. Other Sample Depositions: Thumbnail Outlines
§5:420 Preservation of Expert Physician for Trial
§5:421 The Defendant’s Medical Expert
VII. Forms
Form 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 6: Employment Discrimination and Termination
I. Elements of the Plaintiff’s Cause of Action
A. 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
B. Discrimination
1. 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
II. The Discovery Plan
A. Sequence and Timing
§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 Deponents
1. 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 Case
A. Planning
§6:110 Overview
§6:111 Timing
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
C. The Deposition Outline
1. Background and Thumbnail Outline
§6:130 Background Facts
§6:131 Thumbnail Outline/Deposition Checklist
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
§6:152 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”
§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
§6:200 Overview
§6:201 Timing
B. Goals, Strategy and Preparation
§6:210 Deposition Goals
§6:211 Deposition Strategy
§6:212 Deposition Preparation
§6:213 Deposition Exhibits
C. The Deposition Outline
1. Background and Thumbnail Outline
§6:220 Background Facts
§6:221 Thumbnail Outline/Deposition Checklist
2. Preliminary and Background Questions
§6:230 Standard Introductory Questions
§6:231 Educational Background
§6:232 Work History, Including Details About the Corporate Defendant
§6:233 Family Background
§6:234 Past Convictions
§6:235 The Witness’s Preparation for the Deposition
3. Corporate Background
§6:240 Past Complaints and Lawsuits
§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
§6:251 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
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. Forms
Form 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 7: Insurance Coverage Disputes
I. Elements of the Plaintiff’s Cause of Action
A. 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?
II. The Discovery Plan
A. Sequence and Timing
§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
B. Documents and Exhibits
§7:40 Liability Documents
§7:41 Damage Documents
C. Typical Deponents
1. 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 Denial Case
A. Setting the Stage
§7:70 Overview
§7:71 Timing
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
C. The Deposition Outline
1. Background and Thumbnail Outline
§7:90 Background Facts
§7:91 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§7:100 Standard Introductory Questions
§7:101 The Witness’s Background, Including His Background With the Defendant
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 Case
A. Setting the Stage
§7:150 Overview
§7:151 Timing
B. Goals, Strategy and Preparation
§7:160 Deposition Goals
§7:161 Deposition Preparation
§7:162 Deposition Exhibits
C. The Deposition Outline
1. Background and Thumbnail Outline
§7:170 Background Facts
§7:171 Thumbnail Outline/Deposition Checklist
2. Preliminary Questions
§7:180 Standard Introductory Questions
§7:181 Past Deposition and Trial Testimony
3. The Expert’s File Materials and CV
§7:190 The Expert’s File Materials
§7:191 The Expert’s CV
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
§7:212 Income from Work as an Expert
§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
§7:225 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
§7:244 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
9. Closing
§7:270 Closing Questions
V. Other Sample Depositions: Thumbnail Outlines
§7:280 Insurance Executive in a Bad-Faith Case
VI. Forms
Form 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 Federal Rules)
Chapter 8: Consumer Protection and Deceptive Trade Practices
I. Elements of Plaintiff’s
Cause of Action
A. 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
II. The Discovery Plan
A. Sequence and
Timing
§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 Case
A. 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
C. The Deposition
Outline
1. Background
Facts and Thumbnail Outline
§8:100 Background Facts
§8:101 Thumbnail Outline/Deposition Checklist
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
§8:136 Topic 10: The Number of Persons Who, for Each Year Since
1997, Have Purchased Vacation Packages Offered or Sold as Part of Travel
Promotions
§8:137 Topic 11: Policies, Practices, and Procedures for Training
Telemarketing Employees
5. Closing
§8:150 Concluding Questions
IV. Sample Deposition: Hospital Executive
in a Fraudulent Billing and Lien Case
A. Planning
§8:160 Deposition Overview
§8:161 Timing
B. Goals,
Strategies, and Preparation
§8:170 Deposition Goals
§8:171 Deposition Strategy
§8:172 Deposition Preparation
§8:173 Deposition Exhibits
C. The Deposition
Outline
1. Background
Facts and Thumbnail Outline
§8:180 Background Facts
§8:181 Thumbnail Outline/Deposition Checklist
2. Preliminary
Questions
§8:190 Standard Introductory Questions
§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
§8:213 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
6. Closing
§8:240 Concluding Questions
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. Forms
Form 8:01 Deposition Notice for a Corporate-Representative in a
Consumer-Fraud Case (With Reference to
Form 8:02 Interrogatories in a Deceptive Trade Practices Case Involving
Telephone Services (With Reference to
Form 8:03 Requests for Production in a Deceptive Trade Practices Case
Involving Telephone Services (With Reference to
Form 8:04 Interrogatories in a Deceptive Trade Practices Case Involving
Fraudulent Mortgage Loan Servicing (With Reference to
Form 8:05 Requests for Production in a Deceptive Trade Practices Case
Involving Fraudulent Mortgage Loan Servicing (With Reference to
Form 8:06 Letter to Opposing Counsel Concerning Unanswered Discovery
(With Reference to
Form 8:07 Requests for Admission in a Deceptive Trade Practices Case
Involving Telephone Services (With Reference to
Form 8:08 Interrogatory Concerning Requests for Admissions in a
Deceptive Trade Practices Case Involving Telephone Services (With Reference
to
Form 8:09 Class Action Complaint in a Consumer Fraud Case (With
Reference to
Form 8:10 Class Action Complaint in a Consumer Fraud Case (With
Reference to
Form 8:11 Motion to Remand
Form 8:12 Memorandum in Support of Motion to Remand
Form 8:13 Class Action Notice
Form 8:14 Class Action Notice of Settlement
Form 8:15 Joint Motion for Preliminary Approval of Class Action
Settlement
Form 8:16 Preliminary Approval Order
Form 8:17 Final Approval Order
Form 8:18 Memorandum in Support of Motion for Class Certification (
Form 8:19 Motion for Preliminary Approval of Class Action Settlement in
a Fraudulent Billing Case
Form 8:20 Class Action Preliminary Approval Order in a Fraudulent
Billing Case
Form 8:21 Motion for Class Notice (
Form 8:22 Memorandum in Support of Motion for Class Notice (
Form 8:23 Notice of Proposed Class Action Settlement in a Fraudulent
Billing Case
Form 8:24 Final Settlement Order and Judgment in a Class Action
Index
Deposition Checklists & Strategies
