Category Archives: Discovery

A SIMPLE ATTORNEY DEPOSITION PREPRATION CHECKLIST

We all know how to take depositions, but sometimes  we forget the basics  because we think we don’t have to prepare. Here’s a very simple outline of things to consider before you take a deposition.  It’s a reminder of what we should consider before we depose someone.

PRELIMINARY PREPARATION 

1. MAKE COPIES  OF THE CIVIL RULE: The Civil Rules relating to deposition discovery have provisions governing conduct and objections that are permissible during a deposition. With some defense counsel it may be a good idea to mark a copy of the rule as an exhibit and remind counsel of  its provisions)

2.   COPY ANY SUBPOENA. It’s a good idea to mark the document as an exhibit where there are provisions of what the witness is to bring to the deposition or other similar provisions.

3.   COPY INTERROGATORY DISCLOSURE OF WHAT WITNESS WILL TESTIFY ABOUT. If there is an interrogatory description of what the witness will testify to at trial marking it as an exhibit to limit the areas of testimony may be important at trial.

LAWYER DEPOSITION PREPARATION 

  1. IDENTIFY KEY ISSUES IN THE CASE. Don’t go to the deposition without first clearly identifying the key issues in the case. In most cases  your deposition should focus on them primarily
  2. DETERMINE OBJECTIVES FOR EACH ISSUE.  Once you know the key issues decide what your goal is for them. Do you want to minimize their importance? Do you want to undermine this witness’s credibility about them? And so on.
  3. DIVIDE INTO INDIVIDUAL CHAPTERS. Each category or issue should be a separate part of your deposition outline for organizational reasons.
  4. COPY DOCUMENTS THAT SUPPORT EACH CHAPTER. (1)  Statements, reports or depos of witness (2)  Reports & investigations(3)  Other witness statements  (4)  Standards that apply (5)  Literature that applies  (6)  Photos: video, aerial, newspaper (7)  Diagrams, illustrations & exhibits (8)  Interrogatory, admissions & discovery
  5. CHECK ON THE WITNESS.  Look on the internet and check with services that might have information that would be helpful. Check with other lawyers for possible information about the witness.

C.  PREPARE DEPOSITION OUTLINE 

  1. CREATE CHECKLIST OUTLINE FOR DEPOSITION. Don’t go to the deposition without a checklist. It is too easy to forget or become distracted and overlook an important subject. There are many sources of deposition outlines for different kinds of witnesses. Take the time to create one and when you have, save it for future use.
  2.  ORGANIZE EXHIBIT DOCUMENTS TO BE MARKED AS EXHIBIT WITH COPIES. Don’t waste time at a deposition regarding exhibits you intend to use. Have them organized in the order you intend to mark them. Have an original for the reporter and witness with copies for defense counsel so you can move quickly on without delays

DEPOSITION OF DEFENSE HIRED SURVIELLANCE INVESTIGATOR

I recently deposed an investigator hired by the defense who kept my client under surveillance over a long period of time. While you may not have had this happen to your client you may find the outline helpful.

EXAMINATION OF INVESTIGATOR

(“tailing, stakeout, spying, tracking, snooping, secretly watching, sneak, peeping Tom, prying, invading privacy”)

INTRODUCTION

1.NAME (only – not address -save for later)

WHAT HE DID GENERALLY 

  1. IS IT TRUE STARTING IN MARCH OF 2011 YOU BEGAN SECRETLY WATCHING THE HAUGE RESIDENCE & FAMILY?
  2. YOU SECRETLY VIDEO TAPED JOHN, AMANDA &  EVEN THEIR CHILD MADISON?
  3. YOU SECRETLY FOLLOWED THEM IN THEIR CAR?
  4. YOU FOLLOWED AMANDA & JOHN WHEN THEY DROVE TO THE DOCTOR?
  5. YOU FOLLOWED THE MOTHER DRIVING HER CHILD TO SCHOOL?
  6. YOU FOLLOWED AMANDA TO WORK?
  7. YOU SECRETLY OBSERVE  THIS FAMILY AT LEAST THROUGH OCT 20TH OF THIS YEAR?
  8. WHEN WAS THE LAST TIME YOU SECRETLY WATCHED THEM?
  9. YOU DID THIS WITHOUT THEIR KNOWLEDGE OR CONSENT FOR OVER 14 DAYS?
  10. YOU SPENT AS MUCH AS 12 HOURS A DAY WATCHING OUTSIDE THEIR HOUSE?
  11. YOU SPENT SOME 138 HOURS SECRETLY WATCHING, FOLLOWING THEM AND VIDEO TAPING THEM?
  12. DID YOU EVER CONTACT HIS NEIGHBORS, FRIENDS OR ANYONE ELSE ABOUT JOHN OR HIS FAMILY?

(1) WHO, WHAT, WHEN, WHERE, WHY, REPORTS?

EMPLOYER

  1. YOU DO THIS FOR A LIVING?
  2. YOU’VE DONE THIS FOR OVER TWENTY YEARS?
  3. WHO DO YOU WORK FOR?
  4. HOW MANY EMPLOYEES?

MARK WEBSITE

GO THROUGH WEBSIGHT LANGUAGE:

(1) “SPECIALIST – LONG RANGE VIDEO CAMERAS”

(2) “BACKGROUND INVESTIGATIONS” – See List

(a)  CRIMINAL HISTORY – RESULTS?

(b) CIVIL HISTORY – RESULTS?

(c)  VEHICLES? – RESULTS?

(d) DRIVING RECORD – RESULTS?

(e)  BUSINESS?

(f)   PROPERTY? – RESULTS

(g)  FINANCIAL STATUS? – RESULTS

(h) EMPLOYMENT? – RESULTS

(i)    INTERNET SEARCH – WHAT FOR? RESULTS?

(j)    ANY OTHER INVESTIGATIONS?  RESULTS?

(3) VIDEO “EDITING”?

(4) PRE SURVEILLANCE – 2 vs 14 DAYS?

(5) SURVEILLANCE TEAMS?

(6) “REASONABLE EXPECTATION OF PRIVACY”

(a)  WHO HAS SEEN THESE VIDEOS?

(b) WHO HAS SEEN THESE REPORTS?

(7)  “TRESPASS” – WHAT DONE

(8) SURVEILLANCE “IS A SPECIALITY” WHY? 

HOME ADDRESS  (Note: he will refuse to divulge this information) 

  1. HOME ADDRESS

(1) WHY NOT?

(2) PRIVACY?

(3) DON’T WANT ANYONE SECRETLY WATCHING?

  1. NEED ADDRESS – ARE YOU REFUSING TO GIVE IT TO ME?
  2. YOU KNOW YOU HAVE BEEN SUBPOEANED TO TESTIFY UNDER OATH?
  3. PURSUANT TO THE SUBPOENA I AM ASKING YOU NOW TO STATE YOUR HOME RESIDENCE ADDRESS. 

HOW HE DID IT 

  1. ALONE
  2. SITTING IN CAR WATCHING?
  3. DID YOU EVER OVER HEAR ANYTHING THE HAUGE FAMILY SAID WHILE YOU WERE SECRETLY WATCHING AND VIDEO TAPPING THEM? WHAT?
  4. DID YOU EVER RECORD ANYTHING SAID BY SOMEONE ELSE LIKE JOHN OR HIS FAMILY OR NEIGHBOR?
  5. WHAT EQUIPMENT?

(1) TAPE RECORDER

(2) BINOCULARS

(3) VIDEO CAMERA –  ZOOM?

6.WATCHING & WAITING?

(1) FOR WHAT?

(2) FOR HOW LONG AT A TIME?

7.  HAVE THERMOS? SANDWICH?

8.  READING BOOK, NEWSPAPER?

9.  LISTENING TO RADIO OR ANYTHING ELSE?

  1. COMPUTER? EMAIL? PHONE?
  2. HOW MANY OTHER PEOPLE INVOLVED IN THIS?

POSITIONING 

  1. WHAT KIND OF VEHICLE – DESCRIBE
  2. TINTED WINDOWS?
  3. YOU WANTED TO DO THIS SECRETLY?
  4. DIDN’T WANT ANYONE, ESPECIALLY THE FAMILY, TO KNOW?
  5. WHAT DO TO AVOID BEING SEEN?
  6. WHERE & HOW PARK? 

VIDEO TAPPED OTHERS 

  1. DID YOU ALSO VIDEO TAPE JOHN’S NEIGHBOR?
  2. YOU FOLLOWED JOHN TO A FARM WHERE HE MET WITH A MAN & YOU VIDEO TAPPED BOTH  OF THEM THROUGH A FENCE? – OUT OF CAR?
  3. WHERE STANDING? WHY?
  4. YOU VIDEO TAPED A YOUNG MAN WHO WAS AT THE HOUSE ONE DAY DIDN’T YOU? DO YOU KNOW WHO HE WAS?
  5. DID YOU ALSO VIDEO TAPE SOMEONE ON A BIKE YOU THOUGHT WAS JOHN, BUT WASN’T JOHN?

WHO HIRED?

1.  WHO HIRED YOU IN THIS CASE?

2.  MEETINGS OR PHONE WITH THEM 

(1) WHO

(2) WHEN

(3) HOW OFTEN

(4) WHAT DID YOU SAY 

(3) WHERE DID YOUR VIDEO TAPE & REPORTS END UP?

(4) 99% OF YOUR SECRET SURVEILLENCE IS FOR INSURANCE COMPANIES & DEFENSE LAWYERS IN INJURY CASES

(5) WHO DO YOU WORK FOR?

(6) HOW MANY EMPLOYEES?

(7)  YOU DO THIS WORK 4 – 5 TIMES A WEEK ON DIFFERENT CASES?

WHAT WAS HE SUPPOSED TO DO

  1. WHAT DID YOU UNDERSTAND YOU WERE SUPPOSED TO DO? WHY?
  2. WHAT WAS YOUR OBJECTIVE?
  3. WHAT DID YOU UNDERSTAND WAS YOUR PURPOSE?
  4.  CATCH HIM DOING THINGS HE SAID HE COULDN’T?
  5. WHAT WERE YOU TOLD WHY YOU WERE SUPPOSED TO KEEP ON SECRETELY WATCHING, VIDEO TAPING & FOLLOWING THEM AFTER YOUR FIRST REPORTS?
  6. WHO TOLD YOU WHEN TO DO THIS?
  7. WHY DID IT STOP?
  8. WHO MADE THE DECISION HOW MANY TIMES TO SPY AND WHEN TO STOP?

BACKGROUND

1. MARRIED?

2.  CHILDREN? HOW MANY?

3. WHAT COLLEGE EDUCATION DO YOU HAVE?

4. MEDICAL KNOWLEDGE?

DATES &TIME 

MARK REPORTS AS EXHIBITS

 

  1. ANY PHOTOS OTHER THAN FROM VIDEOS?

 

  1. ANY EDITING?

 

SUPOEANED DOCUMENTS

ü IDENTIFY WHAT HE BROUGHT – MARK

BILLING

  1. WHAT WAS (the law firm or ins co) BILLED FOR THIS?

 

  1. WAS THERE A BUDGET FOR YOUR SERVICES?

 

  1. YOU TESTIFY AT TRIAL TWO TO THREE TIMES A YEAR? (Allen 115)

 

  1. WHAT DO YOU CHARGE TO TESTIFY IN COURT? (Allen 61)

REPORTING

  1. HOW DID YOU PREPARE REPORTS

 

  1. HOW OFTEN DID YOU REPORT

 

  1. WHO DID YOU REPORT TO

 

  1. WHAT DID THEY INSTRUCT YOU DO AFTER REPORTING?

 

  1. WHO DID YOU GIVE THEM TO?

 

  1. DID YOU DISCUSS WHAT YOU SAW WITH ANYONE?

 

  1. WHO HAVE YOU TALKED TO ABOUT WHAT YOU SAW AND DID?

 

  1. WHO HAVE YOU GONE OVER THE REPORTS WITH?

 

(1) HOW MANY TIMES

(2) HOW LONG

(3) WHAT DID YOU SAY?

 

  1. ANY EMAILS WHILE WATCHING?

 

  1. ANY REPORTS BY EMAIL?

 

  1. ANYTHING ELSE NOT PRODUCED YOU KNOW ABOUT FROM YOUR WORK IN THIS CASE?

 

  1. ARE YOU AWARE OF ANYONE OTHER THAN YOU WHO WAS SECRETLY WATCHING THIS FAMILY OR VIDEO TAPING OR FOLLOWING THEM AROUND?

 

  1. ARE THERE THINGS YOU SAW JOHN DO THAT IS NOT IN THESE VIDEOS?

 

(1) WHO, WHAT, WHEN, WHERE, WHY

 

  1. ARE THERE ACTIVITIES YOU OBSERVED ABOUT THIS FAMILY NOT IN THESE REPORTS? (SAME)

REPORTS AND VIDEOS

SEE MY SUMMARIES:  Ask re dates and hours and time

SEE BILLINGS

INTERROGATORIES ASKING FOR INSURANCE COVERAGE INFORMATION

Does your state discovery rules allow you to  ask  the defendant about insurance coverage? If so, you should always take advantage of that right. Insist upon complete answers and don’t be  satisfied with answers like “adequate insurance exists.” If allowed by  the discovery rules move for production of the policies and study the fine print.  Too often we have been  given erroneous answers to the amount of  insurance  coverage. Here are some suggested interrogatories.

The following interrogatories are intended to discover the existence of any insurance which applies.

11.11   As provided in CR 26, Is there any insurance agreement which may be liable to satisfy in whole or in part any judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy such judgment? If so, state:

(1)        The full and correct name of each such insurance company

(2)        The insurance policy number for each company policy

(3)        The maximum limit of insurance provided by each such policy

(4)        The name and address of the person having custody of the policies

(5)        Whether defense costs are deducted from the coverage provided

11.12   If your answer to the previous question was affirmative, is there more then one policy of insurance? If so, explain the nature of the coverage provided. In particular  state as follows:

(1)        Which policy or policies provide primary insurance coverage and which provide additional or excess coverage?

(2)        The dollar amount of coverage for each policy

11.13   Was this defendant an employee, stockholder, partner of any entity not named in this action at the time of treatment to plaintiff by defendant?

11.14   If your answer to the previous question was affirmative, was there an insurance agreement which might be liable to satisfy in whole or in part any judgment which may be entered in this action or to idemnity or reimburse for payments made to satisfy such judgment in the event the entity was a party to this action? If so, state:

(1)        The full and correct name of each such insurance company

(2)        The insurance policy number for each company policy

(3)        The maximum limit of insurance provided by each such policy

(4)        The name and address of the person having custody of the policies

(5)        Whether defense costs are deducted from the coverage provided

11.15   If your answer to the previous question was affirmative, is there more then one policy of insurance? If so, explain the nature of the coverage provided. In particular  state as follows:

(1)        Which policy or policies provide primary insurance coverage and which provide additional or excess coverage?

(2)        The dollar amount of coverage for each policy

11.16   Has this defendant received notice from any of the above insurance companies that they reserve the right to question any aspect of  the applicability of the insurance policy to the facts of this case? If so, state:

(1)        Which companies

(2)        The reasons given

11.17   Are there any insurance agreements which may or could  be liable to satisfy in whole or in part any judgment which might be rendered in this matter against this defendant or to idemnify or reimburse for payments made to satisfy such judgment  which have not been disclosed?