The importance of discovery checklists

I’m a great believer that lawyers must use a checklist for every deposition they take no matter how experienced they are. If seasoned airplane pilots use checklists, lawyers should too. It’s too easy to get side tracked during a deposition and forget some area of questioning. What follows is an example of a verybasic and simplistic outline for the deposition of an eye witness in a damage case.

I take an outline like this and revise it by adding areas of particular interest I should cover. I use it as a reference list to make sure I’ve covered the areas that are important. I keep these kinds of outlines in a three ring notebook under dividers by subject matter for future reference. This allows me to improve and revise as I use them in discovery.

GENERAL DEPOSITION EYE WITNESS OUTLINE

A. INTRODUCTION

B. BACKGROUND INFORMATION

C.GENERAL BIAS

D. PREPARATION FOR THE DEPOSITION

E. FACTS

F. WITNESS STATEMENT REVIEW

G. INVESTIGATION REPORTS

H. OTHER WITNESS TESTIMONY OR REPORTS

I. DETAILS AT TIME OF EVENT

WITNESS ABILITY TO OBSERVE

WEATHER

TIME

FAMILIARITY WITH AREA

LIGHTING

IDENTIFICATION ALL PERSONS PRESENT

ACTIVITY AT TIME

DISTANCES

TIMING

SPEEDS

ALL WITNESSES IDENTIFIED

CONVERSATIONS WITH ANYONE – What said

J. DETAILS AFTER

DESCRIPTION OF SCENE

ACTIVITY

DISCUSSIONS

PERSONS PRESENT

PHYSICAL MARKS Skid marks, etc

K. INJURIES TO PLAINTIFF

L. OPINIONS & CONCLUSIONS

EXPLORE ALL OPINIONS ON KEY LIABILITY ISSUES

(1) PRIMARY CAUSE

(2) WHAT COULD OR SHOULD HAVE BEEN DONE TO AVOID

(3) SPEED

(4) NEGLIGENCE OF EVERYONE RESPONSIBLE

(5) CONTRIBUTORY NEGLIGENCE

M. GENERAL INFORMATION

WHO WITNESS HAS TALKED TO ABOUT THIS FROM DATE TO NOW

(1) TELEPHONE RECORDINGS

(2) WRITTEN STATEMENTS

(3) MEETINGS

(4) TELEPHONE CALLS

WITNESS REPORTS

(1) DIARY ENTRIES

(2) COMPUTER ENTRIES

(3) NOTES

(4) PERSONAL REPORTS OF ANY KIND

3. INDEPENDENT RESEARCH

(1) INTERNET SEARCHES

(2) RESEARCH OF ANY KIND

CONCLUSION

HAVE WE COVERED ALL OF THE KNOWLEDGE YOU HAVE ABOUT THIS?

ARE THERE OTHER OPINIONS OR VIEWS ABOUT THIS WE HAVEN’T DISCUSSED

IS THERE ANYTHING WE HAVEN’T TALKED ABOUT THAT YOU THINK HAS SOME IMPORTANCE TO WHAT HAPPENED

HAVE YOU BEEN ASKED TO DO ANYTHING AFTER THIS DEPOSITION TO PREPARE OR ASSIST YOU AS A WITNESS

DO YOU PLAN TO DO ANYTHING AFTER THIS DEPOSITION TO PREPARE OR ASSIST YOU AS A WITNESS

ARE THERE ANY QUESTIONS YOU WANT ME TO REPEAT OR ANSWERS YOU WANT TO CLARIFY

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