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Deposition Checklists &
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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
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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 §1:53 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 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 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 §1:104 Questions by Opposing Counsel C. Ending Depositions §1:110 How to End 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 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 §1:143 The Witness Who Talks Too Much §1:144 Practice Tip: Asking Follow-Up Questions §1:145 The Witness Who Talks Too Little §1:146 The Difficult Opposing Counsel 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 B. Types of Objections §1:170 Objections to Form §1:171 Objections to Foundation §1:172 Objections Relating to Relevancy §1:173 Objections Based on Privilege §1:174 Other Objections 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 §1:217 Conducting Other Research About the Expert §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 §1:233 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 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 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 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 §2:291 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 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
Form 2:04 Deposition Notice for an Expert in a Vehicular-Liability Case
(With Reference to 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 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 Caution: Don’t Depose a Friendly Witness 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
Form 3:04 Deposition Notice for a Corporate Representative in a
Slip-and-Fall Case [Illinois
Form 3:05 Notice to Take Deposition of Defendant’s Engineering Expert in
a Premises- 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 |
