(Winning Depositions of Defense Witnesses)
Soundbites & Intel
Depositions of defense witnesses are about two things: gathering soundbites and gathering intel for trial. Soundbites are for opening and cross. Intel is to head off an ambush and to get the lay of the land so you can plot a winning course.
What I mean by soundbites are useful answers in trial-ready packages. To get them, you will need to do some trimming, cutting away the fat wrapped around the prime answers.
When you get an answer that is worthy of repeating in opening or cross-examination, you may need to clean it up. If it is covered with longwinded double-talk, it is almost useless. Anyone who has tried to use a two-page deposition answer to impeach a witness knows it doesn’t work. Halfway through the rambling answer, before getting to the good part, defense counsel objects that this isn’t impeachment. You end up at the bench getting scolded for all to see. By the time you get to the impeachment part (assuming you get there), the point is lost.
When the deposition is viewed as trial-prep, you fight to get soundbites, rather than accept a longwinded lecture in which the good part is buried. You repeat the good part and say, you just told us “x”, is that right? When he answers, “Yes, but let me explain, and again slathers on the gristle, you stay with it until he says, “yes”, without the “but”.
Let me give you some examples of the staggering effects at trial of blows you land in depos. While the defense may not feel the full impact until the jury is present, the potential knockout punch was delivered in deposition.
Sprain/ Strain diagnosis
The orthopedic or neurosurgeons hired by the defense in herniated disk cases almost always try to diminish the seriousness of the injury by calling it a temporary sprain/ strain. Keep in mind that universal tactic is a double-edged sword for the defense. It allows them to explain why your clients are in pain from the crash, without admitting there are serious, forever injuries. If you nail them down on this strategy during the deposition, the other sharp edge can be used against them in a lacerating way at trial. Here is how you do that in opening:
The defense hand-picked and hired a neurosurgeon name Dr. Bull. The evidence will show the defense law firm has handpicked and hired Dr. Bull many times in the past. 20% of Dr. Bull’s money comes from being hired by one side in lawsuits and 99% of that is for the defense side. You will hear he has made over $1 million in the last three years alone working for the defense. He will make over 15,000 dollars in this case alone. You will also hear he almost always testifies that the person did not suffer a permanent or lifelong injury. In this case, even Dr. Bull admits Ms. Jones was hurt in the crash that we are here on. He tries to downplay it by saying it was just a sprain/strain. We will deal with that in a minute. For now, it is very important that even Dr. Bull admits this crash caused an injury. It is important because it puts to rest any suggestion
that the impact was harmless. You know the impact of this crash was enough to cause injury to Ms. Jones’ neck, because even Dr. Bull has conceded that point for the defense.
Now that you see the power of this admission at trial, let’s return to the deposition. Sometimes the defense expert will try to water down his answer and say the crash “may have” caused a sprain/ strain. This is one of those times you need to pin him down. Ask questions like, “Are you suggesting Ms. Jones was faking the pain when she went to the emergency room?” If he says “yes”, his credibility will be ruined. If he says “no” (which is the only way for him to maintain any credibility and avoid a backlash from the jury), then it is just a matter of making his opinion clear by asking, “So your opinion, based on reasonable medical probability, is that Ms. Jones suffered a sprain/ strain in the crash, that is why she was in pain, correct?’
No malingering
Here is another similar, high-dividend question for the same defense expert in deposition, “Are you suggesting Ms. Jones is malingering?” He will almost always say “no”. To say “yes” would be going too far for even the defense.
Now, I want to show you how important it is to get that answer locked down in the deposition by showing the end result in opening:
Sometimes there can be a concern that the person bringing a case like this could be exaggerating or faking. Well, you can take that off your worry list. Why? Because that same doctor we were just talking about, Dr. Bull, admits there was no faking or exaggerating based on his professional assessment. He is very skilled and experienced at detecting faking or exaggerating because he does a lot of these assessments for the defense side in lawsuits. He knows what to look for. He had everything he needed to assess for faking or exaggerating. He questioned Ms. Jones at length, he examined Ms. Jones, he reviewed all of the medical records, and he reviewed all of the testimony from other witnesses in the case. If there was any exaggerating or faking going on, he would have picked up on it. Instead, he said just the opposite. He used a fancy medical term, “malingering”, which means faking or exaggerating, and made it clear there was none of that going on here.
Reasonable, Necessary, and Related
In an effort to appear fair and unbiased, defense experts will usually admit the early, inexpensive medical bills were reasonable, necessary, and related. Things on his list will usually include: the initial hospital visit and ambulance charges, early chiropractic visits, the initial MRIs, and assessment by the neurosurgeon. These admissions can lead to a directed verdict for your client on the question of whether the crash caused injury. The extent of injury will remain open, but the threshold question of legal cause will have been satisfied.
These deposition answers will also bolster the opening statement section in which you point out Dr. Bull admits Ms. Jones was hurt in the crash. You add this to further make the point that, according to Dr. Bull, Ms. Jones was hurt bad enough that she needed medical care.