Preparing Deponents for Reptilian Questioning

How a deponent answers questions in a deposition can make or break a case.  This is true no matter the law you practice, and it is how the folks selling reptile swag frame their argument.  To paraphrase the sales pitch, buy the book, attend the seminar, ask these questions, and it’ll make your case.  I’ve discussed these types of questions in written discovery, but what about in depositions?

Lawyers can endlessly debate whether questions like those below are proper or admissible, but in discovery there is no judge present to rule, so clients should be prepared to respond and lawyers should be prepared to object.  Having said that, properly prepared clients still get it wrong and properly prepared lawyers sometimes do not object.  Such is life. Below are examples I encountered in different depositions.

Safety Rules: Slip & Fall

45:9        Q    Now last, but not least.  I’m going to go
10   over a few safety rules.  See what you think.
11        A    Okay.
12        Q    Tell me whether you agree or disagree.
13        A    Okay.
14        Q    First rule, The safety of the [restaurant’s]
15   customers is the highest priority for
16   [restaurant]?
17        A    Yes.

If you hear the phrase “safety rule,” that is one hint as to what will follow next.  Some lawyers will object to this particular question, typically as vague.  I didn’t in this case because 1) the client could show all the “safety” measures it had in place, and 2) attorneys need to use their objections judiciously.  There was more coming and this question was relatively innocuous.

18        Q    Number 2, the [restaurant] must do everything
19   possible to ensure the safety of customers?
20             MR. LOWRY:  Objection, vague.
21             Go ahead.
22             THE WITNESS:  Yes.

This one was vague.  The “everything possible” segment was vague, as was the “safety of customers” segment.  The plaintiff has the burden to establish the duty a defendant owed and how the defendant breached that duty.  By phrasing this question this way, a plaintiff tries to flip the burden of proof because it is easy to play Monday morning quarterback and argue that a defendant didn’t do “everything possible.”  The question for trial is instead whether the defendant did what its duty, however defined, required it to do.

24        Q    Number 3, Slippery hardwood floors are
25   unsafe for [restaurant] customers.
1             MR. LOWRY:  Objection, vague.
2             THE WITNESS:  Not necessarily.
3   BY MR. [PLAINTIFF]:
4        Q    You don’t think that slippery hardwood
5   floors are unsafe for [restaurant] customers?
6        A    That’s kind of a trick question.
7        Q    I don’t think it’s too tricky.
8        A    Any slippery floors are unsafe.
9        Q    But you need to respond to this specific
10   rule.  Okay.
11             Slippery hardwood floors are unsafe for
12   [restaurant] customers?
13             MR. LOWRY:  Same objection.
14             THE WITNESS:  Yes.

This was a good exchange. Points to deposing counsel for keeping at it, partial points to the witness for fighting back, but she should have kept going.  Slippery is a subjective term.  What the restaurant or a code drafter considers slippery may not be what the plaintiff considers slippery, which is why the “vague” objection was asserted.

16        Q    Fourth safety rule:  Hardwood floors must be
17   kept clean and dry to keep [restaurant] customers safe.
18             MR. LOWRY:  Same objection.
19             THE WITNESS:  Yes.

Same problems as prior question.

Safety Rules: MVA

I encountered basically the same questions in a later case with the same opposing lawyer.

2        Q    Safety Rule Number One:  The bus driver must
3   pay full time and attention to driving to protect all
4   of us from injury and death.
5        A    Correct.

I didn’t object because it’s mostly true.  However, the burden is reciprocal in that others must also pay attention so as to protect themselves and avoid creating dangers.

6        Q    Safety Rule Number 2:  The bus driver must
7   stop smoothly to avoid serious injury or death to all
8   of us who are standing up, holding onto hand holders?
9             MR. LOWRY:  Objection, vague.
10             Go ahead.
11             THE WITNESS:  Right.
12   BY MR. [PLAINTIFF]:
13        Q    Do you agree?
14        A    I agree.

Again, the plaintiff’s definition of a smooth stop is not the same as the driver’s.   This makes the question vague and the driver optimally would have defined that term in her response.

15        Q    Safety Rule Number 3:  Bus drivers must keep
16   a lookout for passenger cars stopping at lights to
17   avoid serious injury or death to all of us.
18             MR. LOWRY:  Same objection.
19   BY MR. [PLAINTIFF]:
20        Q    Go ahead.
21        A    I would say — could you repeat the
22   question?
23        Q    Okay.  “Bus drivers must keep a lookout for
24   passenger cars stopping for lights to avoid serious
25   injury or death to all of us.”
1             MR. LOWRY:  Objection.
2             THE WITNESS:  I disagree.
3   BY MR. [PLAINTIFF]:
4        Q    You disagree?
5        A    I disagree because it’s hard to watch that.
6   I mean you got a lot of people driving around you.
7   You can watch as much as you can, but just sometimes
8   you just don’t see them all.

I awarded points to the driver for listening to the question, thinking about what it meant, and then responding appropriately.  The question was designed to make the driver strictly responsible if anything happened, but she refused to fall for it.

9        Q    And did you violate any of these safety
10   rules in this case?
11        A    No, sir.

Some might object to this question, but I didn’t think it merited one.  Again, I awarded points to the driver for articulating her position and sticking with it.

What Else Could You Have Done?

This is an easy question to ask.  It can be a relatively easy question to answer too.

11 Q All right. Is there anything you think
12 that you could have done different in this case?
13 MR. LOWRY: Objection: Speculation.

This was very simply asked and easy to understand for the witness.  I objected because it is speculating about what could or should have happened and what affects may have resulted.  However, the witness in this deposition was prepared and her negligence was admitted, so answering was easy: don’t cause the accident.

The answer becomes more nuanced when a liability denial or comparative negligence is asserted.

12        Q    What are three things you could have done,
13   as you think back on things, to avoid the injury of
14   that?
15             MR. LOWRY:  Objection, speculation.
16             Go ahead.
17             THE WITNESS:  Three things I could have
18   done — or one thing I could have done?
19   BY MR. [PLAINTIFF]:
20        Q    Give me your best answer.
21        A    I’m going to be honest.  It was — to me
22   there was nothing I could have done to prevent it.
23   There was nothing, nothing I could do to stop.  It is
24   you either hit the car or do the hard stop.
25             And I chose not to hit the car because I’m
1   thinking about passengers in the car and I’m also
2   thinking about my passengers on the bus.
3        Q    Okay.  What’s the worst thing that could
4   have happened as a result of the sudden stop in this
5   case?
6             MR. LOWRY:  Objection, speculation.
7             Go ahead.
8             THE WITNESS:  A whole lot of people could
9   have been hurt, including myself.
10   BY MR. [PLAINTIFF]:
11        Q    So as you look back on this event, do you
12   accept any responsibility for what happened to my
13   client?
14             MR. LOWRY:  Objection, argumentative.
15             Go ahead.
16             THE WITNESS:  No, I don’t.

I wanted to hug the driver for the answer to the last question.  It was hard for her because she genuinely felt for the people who had been injured.  However, she was able to distinguish between caring for other people as opposed to being responsible for the injuries they might have suffered.  This is hard to do, and there can be a great deal of emotion involved, especially where a person died.  However, when the client has a basis to fight, it may sometimes be necessary to more or less reenact Good Will Hunting and keep explaining to the client “it’s not your fault.”  Dealing with that emotion in preparation hopefully helps the client then deal with it during the deposition.