The Velvet Hammer™ -

In this deposition, the defense attorney accuses me of being unprofessional.   So what do you think.  Was it okay for me to stand up to my client.  Or should I have let him continue down his path without interfering.  You be the judge.

14   Q     Then what other treatment did you have following that?      
15   A     I went to the knee specialist at The  Clinic.        
16   Q     Who did you see at The  Clinic?                      
17   A     There was two different doctors.                            
18                  MS. KOEHLER:  Why does the knee even matter?  She's
19         not claiming that either accident caused the knee injury.   
20   Q     You can go ahead and answer.                                
21                  MS. KOEHLER:  We'll get you the records.           
22   A     Yeah, you can just get the records.                         
23   Q     I'd like to know where you went for treatment.              
24   A     The  Clinic.                                         
25   Q     All right.  And do you recall the names of the physicians   
                            75
 1         there?                                                      
 2   A     I don't.                                                    
 3   Q     And then what other treatment did you have other than the   
 4         hospital?                                                   
 5                  MS. KOEHLER:  Objection; irrelevant.               
 6                  MR. B:  That's not a proper objection.  You  
 7         can object to form.                                         
 8                  MS. KOEHLER:  Objection; form, irrelevant.         
 9   Q     You can go ahead.                                           
10   A     It was just the knee.                                       
11   Q     What's that?                                                
12   A     Just the knee.                                              
13   Q     Just the knee?  I don't understand.                         
14   A     I guess I don't understand your question.                   
15   Q     My question's not that difficult.  What treatment did you   
16         have other than The E Clinic and the walk-in clinic   
17         and P Hospital?                                    
18   A     For my knee injury.                                         
19                  MS. KOEHLER:  Wait.  Don't.  You don't need to     
20         disrespect the witness.                                     
21                  MR. B:  Excuse me?                           
22                  MS. KOEHLER:  By saying that your question's not   
23         that difficult?                                             
24                  MR. B:  I'm not disrespecting the witness.   
25                  MS. KOEHLER:  That was very disrespectful.  Like,  
                            76
 1         Are you dense?  My question is not that difficult.          
 2   Q     My question is pretty clear.  What treatment did you have?  
 3         You don't understand that?                                  
 4                  MS. KOEHLER:  I don't know why you're getting so   
 5         agitated about the knee that's not even related.  We've been
 6         going over another hour.  We can take a break as soon as    
 7         you're done with your line of questioning.  She's tying to  
 8         cooperate.                                                  
 9                  MR. B:  You're the only one being            
10         obstructionist.  I'm trying to get very basic information.  
11                  MS. KOEHLER:  Be nice to her.                      
12                  MR. B:  What is relevant and what is not     
13         relevant is not up to you to decide.                        
14                  MS. KOEHLER:  Like I said, be polite.  You're now  
15         being very aggressive.  Be polite.  That's all I'm asking.  
16         You're leaning over the table.  You're getting red in the   
17         face.                                                       
18                  MR. B:  I've been right where I've been the  
19         whole time.                                                 
20                  MS. KOEHLER:  Ask a question.  Find a good place to
21         stop.  We'll take a break.  We've been going an hour.       
22   Q     Can you just answer the question, ma'am?  It's a very basic,
23         easy question.  What treatment other than the ones that     
24         we've listed did you have for the right knee injury with    
25         your dog?                                                   
                            77
 1   A     The right knee injury with my dog is for my right knee with 
 2         injury with my dog.                                         
 3   Q     That's not my question.  Please listen carefully to the     
 4         question.                                                   
 5             What other treatment have you had other than what we    
 6         just talked about for your knee?                            
 7   A     For my knee related -- you're not asking me a question      
 8         that's very clear.                                          
 9                  MS. KOEHLER:  Right now maybe we've -- because     
10         we've been yelling at each other, now we've maybe confused  
11         the witness.                                                
12                  MR. B:  I haven't been doing any yelling.    
13         Can you read back the question, please?                     
14                       (Pending question read back.)                 
15                  MS. KOEHLER:  He just wants a list of your medical 
16         treatment.                                                  
17                  THE WITNESS:  Medical treatment for my knee?       
18                  MS. KOEHLER:  For your knee.  Any kind of medical  
19         treatment you've had for your knee.                          
                                     
***  [Witness goes through her knee treatment for a couple minutes]

                      MR. B:  What kind of therapy, if any, do you think you are going to 
13         need for your knee?                                         
14                  MS. KOEHLER:  Object to the form.                  
15   A     I don't have any idea.                                      
16   Q     There's been no discussion about that?                      
17   A     They've got to wait.                                        
18   Q     Do you think you'll ever walk again?                        
19   A     These are really unrelevant (sic) questions to this whole   
20         thing.                                                      
21   Q     Ma'am, can you just please answer my question?  It's        
22         really --                                                   
23                  MS. KOEHLER:  Honestly?  Will you ever walk again? 
24         Come on.  Let's go take a break.  I asked to take a break   
25         four minutes ago.                                           
                            80
 1                  MR. B:  You asked when I was done with this  
 2         line of questioning, if I recall correctly, and I'm not done
 3         with this line of questioning.                              
 4                  MS. KOEHLER:  Asking her whether she's going to    
 5         walk again, that's really ridicules.                        
 6                  MR. B:  Why?                                 
 7                  MS. KOEHLER:  Give me a break.                     
 8                  MR. B:  Are you serious?                     
 9                  MS. KOEHLER:  Are you serious?                     
10                  MR. B:  Yeah, I am serious.  She's got a     
11         plate and screws in her knee.                               
12                  MS. KOEHLER:  Oh, my gosh.  Since when did that    
13         prevent someone from walking again?                         
14                  MR. B:  Well, we haven't seen the records,   
15         have we?                                                    
16                  MS. KOEHLER:  Oh, please.                          
17                  MR. B:  I've never seen anything like this.  
18                  MS. KOEHLER:  I've never seen anybody act like     
19         you're acting.  What has she done to you?                   
20                  MR. B:  Nothing.                             
21                  MS. KOEHLER:  I know.  Be nice to her.             
22                  MR. B:  What's wrong with you, Counsel?      
23                  MS. KOEHLER:  If you were asking a person that     
24         actually had a spinal cord injury if they were ever going to
25         walk again --                                               
                            81
 1                  MR. B:  I'm going to move to strike Counsel's
 2         comments from the records.  They're totally inappropriate,  
 3         they're irrelevant.                                         
 4                  MS. KOEHLER:  Just be polite to the witness and    
 5         finish your questioning.                                    
 6                  MR. B:  Excuse me, please.                   
 7                  MS. KOEHLER:  Go.                                  
 8                  MR. B:  I don't want to be interrupted again.
 9         If I'm going to be interrupted again I'm going to call the  
10         judge.                                                      
11                  MS. KOEHLER:  Call the judge then.                 
12                  MR. B:  Please don't interrupt me.           
13                  MS. KOEHLER:  Please call the judge if you feel you
14         need to.                                                    
15                  MR. B:  I will, but I'm asking you politely  
16         not to interrupt me.                                        
17                  MS. KOEHLER:  Then be polite.                      
18                  MR. B:  Nothing happened here until you got  
19         involve.                                                    
20                  MS. KOEHLER:  I've been involved since day one.    
21                  MR. B:  Until you got involved in the middle 
22         of legitimate questioning when you all of a sudden decided  
23         it wasn't good enough for you.                              
24                  MS. KOEHLER:  All right.                           
25                  MR. B:  So stop it and let me ask the        
                            82
 1         questions.                                                  
 2                  MS. KOEHLER:  I can't wait until the next one.  Go 
 3         for it.  Continue.                                          
 4                  MR. B:  Thank you.                           
 5                  So can you read back the last question, please?    
 6                       (Pending question read back.)                 
 7   Q     And you said you don't know, is that right?                 
 8   A     I hope so.                                                  
 9   Q     And then she objected.  She didn't think it was a very good 
10         question.                                                   
11   A     I don't think it is either.                                 
12   Q     But you don't even know whether you can or not.  If it was  
13         such an illegitimate question, why can't you answer it?     
14   A     Well, I think that's really rude and hurtful, too.          
15   Q     Well, you're suing my client for injuries.                  
16   A     Not for this knee.                                          
17   Q     But you can't work and you're claiming lost wages, aren't   
18         you?                                                        
19                  MS. KOEHLER:  We're not claiming lost wages for the
20         period of time -- we'll stipulate right here that she's off 
21         of work for her knee.  We're not claiming any lost wages for
22         the period of time she's off of work for her knee.          
23         Stipulate.                                                  
24                  MR. B:  We don't know when that is, do you   
25         we?                                                         
                            83
 1                  MS. KOEHLER:  I'm stipulating it right now.        
 2                  MR. B:  But we don't know how long a period  
 3         of time that is until I ask the question, do we?            
 4                  MS. KOEHLER:  Well, we'll know when the doctor says
 5         she's out of a wheelchair and able to stand on her feet.    
 6                  MR. B:  And do you know when that is?        
 7                  MS. KOEHLER:  You are being so abusive right now.  
 8         Did you hear my stipulation?  I'm going to stipulate on the 
 9         record.                                                     
10                  My stipulation is:  We stipulate that the knee     
11         injury caused by her dog was not caused by either motor     
12         vehicle collision, number one.                              
13                  Number two, we stipulate that all of the medical   
14         care rendered for her knee was not caused by either         
15         collision.  We will not be making a claim for any damages   
16         for that medical care financially or otherwise.             
17                  Number three, the period of recuperation for her   
18         knee that she's off of work we are not claiming as part of  
19         the motor vehicle collision injuries.                       
20                  Number four, we're not claiming any pain and       
21         suffering relating to her knee as a result of the injuries, 
22         period.                                                     
23                  MR. B:  Up until what time?                  
24                  MS. KOEHLER:  I said the entire time that she has  
25         the knee problem that's preventing her from working.        
                            84
 1                  MR. B:  And you can't tell me when that is;  
 2         right?                                                      
 3                  MS. KOEHLER:  Let me see.  If I was God, maybe I   
 4         could.  I think that's a pretty good stipulation.           
 5                  MR. B:  It's an easy question, Counsel.  You 
 6         can't tell me what it is; is that right?                    
 7                  MS. KOEHLER:  Can you tell us when it is?          
 8                  MR. B:  That's why I'm asking the question.  
 9                  MS. KOEHLER:  The doctor doesn't know yet.         
10                  MR. B:  We just found that out, didn't we,   
11         because I asked a good question.  Now, if I hadn't asked the
12         question, we wouldn't know.  I think we're making progress. 
13                  THE WITNESS:  Can I take a break now?              
14                  MR. B:  Yes.                                 
15                  THE WITNESS:  Thank you.

Postscript:  After the deposition ended, B and I kissed and made up. 

Photo:  At the Louvre.

Ms. A is insured by State Farm with UIM. They do not want to pay the claim.  They hire this psychiatrist to do a records review. To help them challenge the injury claim.   Dr. P never meets or interviews Ms. A.   But being the God-like creature that he is, will testify that Ms. A somaticizes her injuries and has "secondary gain."   What this means in real people language - is that she is making the injuries up.   My job is to show that he is the one making things up.

In order to get the full flavor you have to picture:  a) The court reporter and I are in my office; b) the doctor is on the phone from California; c) the defense lawyer is on the phone in his office; d) as I begin to lose my temper am - waving arms in air, rolling eyes around head, throwing head down on arms on table, and being major drama queen.  You get the drift.  This is the nice part about doing a deposition when no one else can see you.

A teeny bit of background.  Ms. A is in her mid 20s when this happens while she is getting her PhD. She now is doing post doctoral work.  She brings a claim for medical bills and personal injuries.  She is not making a wage loss claim.

I am asking for his opinions.  And the fight begins:

25   Anything else?
                            25
 1   A    Well, I think I -- I believe she's using her symptoms
 2        for secondary gain, that is, to get benefits that she
 3        would not otherwise receive.
 4   Q    So, this -- let me get this straight.  She hasn't seen a
 5        doctor for psychological issues since two thousand --
 6        for almost four years.  She functions at a very high
 7        level, she is in a successful relationship, and she is
 8        making up her symptoms so she can get money from her
 9        uninsured motorist insurance company?
10   A    No, that's not correct, and that's not what I said.  I
11        said --
12   Q    Well, it sure sounded like it.
13   A    Allow me to finish, please.  I said that she has
14        secondary gain motivation.  I didn't say that -- you
15        know, any of what you said.
16   Q    Well, secondary gain from this litigation means she's
17        trying to get money by making up or magnifying her
18        symptoms.
19   A    No, you have a misunderstanding of secondary gain.
20   Q    Well, you tell me then what your understanding of it is.
21   A    Well, what it means is that she is attempting to use her
22        symptoms -- and as far as I can tell it's unconscious --
23        to get benefits that she would otherwise not receive.
24        If I had evidence that she was consciously, you know,
25        using her symptoms to gain benefits that she would not
                            26
 1        otherwise receive, that would be malingering.  I'm not
 2        saying she's malingering, I'm saying she has secondary
 3        gain motivations.  That's different.
 4   Q    So your opinion is that she's not a malingerer?
 5   A    I did not say that.  I said I did not have evidence that
 6        she is malingering.  I don't know whether she is or is
 7        not malingering.
 8   Q    Am I correct that there is no evidence that she's
 9        malingering?
10   A    I never said that.  She could be.
11   Q    Doctor, that's not what I said.  I said you have found
12        no evidence that she's a malingerer?
13   A    No, that's not correct.
14   Q    What evidence have you found that she's malingering?
15   A    I've found that she's reporting more physical symptoms
16        than can be objectively accounted for based on the
17        nature of the accident she's experienced.
18   Q    Are you telling us on a more probable than not basis
19        that she is a malingerer or not?
20   A    I said, I am not -- I do not have -- I do not conclude
21        at this point that she is malingering.  However, is it
22        possible she's malingering?  Yes, it's possible.
23   Q    I don't care about possibilities.  We only care about
24        more probable than not.  You know that.
25   A    At this moment I do not think it's probable she's
                            27
 1        malingering.  That opinion could change if additional
 2        material were provided.
 3   Q    But you do believe she has secondary gain?
 4   A    Oh, yes, of course.
 5   Q    And what is the benefit that she's trying to get?
 6   A    Well, money, for one.  She's trying to get money, she's
 7        getting concern, care, support from others -- for
 8        instance -- let me just find this.  She was -- she
 9        was -- she was going to have -- somebody else was going
10        to present a paper for her, and I -- that -- you know,
11        so that she wouldn't have to present it because of her
12        physical symptoms.  Now, it turned out that that didn't
13        actually happen.  She herself did, in fact, go ahead and
14        present the paper.
15             And also, her supervisor at the University of
16        Washington, he was -- I think it's a he, I'm not sure
17        about that, but whoever her supervisor was, was going to
18        also -- I have to find that.  I have it here
19        someplace -- was going to help her out in some way.  So
20        those are examples of secondary gain right there.
21   Q    Secondary gain because somebody that's as prideful as
22        her and as accomplished as her needs to have help?  I
23        find your insinuations to be shockingly rude.
24   A    No, you're misinterpreting what I'm saying.  I'm saying
25        on a psychological basis, this lady -- okay, look.  This
                            28
 1        lady has unmet dependency needs.  Her parents were
 2        divorced when she was four.  She was raised by her
 3        paternal grandparents until ten.  She then -- her father
 4        then got custody of her, which is extraordinarily
 5        unusual in California, which I believe that happened.
 6        And then her mother then got custody of her the
 7        following year, okay?  This lady has unmet dependency
 8        needs.  She is using these symptoms that she has to try
 9        to get these unmet dependency needs met for secondary
10        gain purposes.
11   Q    I find your opinions outrageous.  You have not even met
12        her.
13   A    I have records that --
14   Q    I mean, honestly --
15                     MR. CROWELL:  Objection, argumentative.
16   Q    (By Ms. Koehler)  I am absolutely appalled.
17                     MR. CROWELL:  Is that a question, Counsel?
18   Q    (By Ms. Koehler)  Oprah Winfrey was abused as a child
19        and she's one of the most powerful women in the world.
20        How can you try to insinuate that she's got secondary
21        gain issues because of her abandonment and family of
22        origin issues?  I mean, that is an extraordinary leap of
23        faith.
24   A    If she has unmet dependency needs, and if those are
25        there, which I believe they are -- and I can show you
                            29
 1        some other evidence for that.  But if she does, and I
 2        believe that she does, then, she is in a position to
 3        attempt to get those unmet dependency needs met, and one
 4        of the ways -- and this is unconscious.  I'm not saying
 5        this lady is doing this consciously, deliberately.
 6        Don't get me wrong.  She's functioning at a very high
 7        level.  She's doing very well.  But psychologically I
 8        believe what I'm saying is going on, and that accounts
 9        for some -- some of the -- some of the behavior that we
10        see.
11   Q    Doctor, do you have a crystal ball on the other end of
12        that phone?
13   A    What are you talking about?
14   Q    How can you make this kind of declaration when you've
15        never examined her, when you've said that you're -- that
16        testing should have been performed that wasn't
17        performed, and that there's information that you think
18        is missing?  How can you jump to these conclusions when
19        you don't have any basis to make them?
20   A    You're wrong.  I have my knowledge, training, and
21        experience.  I know what happens in these kind of
22        situations.  I know what happens when parents are -- you
23        know, when a person -- parents are divorced when they're
24        four years old.  I know what that does.  There's all
25        kinds of research that indicates what happens.
                            30
 1   Q    Well, I'm really offended now --
 2   A    Judith Wallerstein wrote a whole book about this kind of
 3        thing in Marin County here.  I mean, she's a
 4        psychoanalyst.  I mean, this is well known.  This is
 5        hardly something that's not known.
 6   Q    Well, I have a daughter who was four years old when her
 7        parents were divorced and she doesn't appear to have
 8        unmet dependency issues.  She's functioning quite highly
 9        and very well.
10   A    Look.  Miss A is functioning highly as well.  But
11        we're talking accounting for certain kinds of behavior
12        and symptoms.  And just because somebody was, you know,
13        parents were divorced when they were four, that doesn't
14        necessarily mean that that will be the result.  But in
15        this case, when I put everything together that is
16        present, and you know, using my knowledge, training and
17        experience, I think it's a reasonable conclusion.  I
18        think it's more likely than not.
19   Q    Well, I think that you should be ashamed.

There should really  be an exclamation mark after the word ashamed!

But perhaps the most amazing part comes at the end of cross examination the next week.  Today in fact.  During the UIM Arbitration proceeding.    After testifying again to the above crapola, I ask the doctor for any evidence he has that Ms. A somaticized before the car crash.  And here is what he says.  No lie.  Am not kidding.

She had headaches which is evidence of somatization.  She also had dysmenorrhea which again is evidence of somatization.  I actually look it up on the internet to make sure I have this right.  Yep.  I do.

So you are saying, doctor that headaches and pain with menstruation are evidence of somatization. 

Yes.

So a woman who has headaches and pain with menstruation is likely somatizing the events.

Yes.

Since women are the only ones who have pain with menstruation, I suppose the statistics show that women have a much higher incidence of somatization than men.

Yes.

Pinch my leg to make sure have not time travelled back to the 1930s.  Yes, ladies and gentleman, this is the kind of defense expert your good neighbor will hire to testify against you, if you are hurt in a crash and bring an underinsured motorist claim.

Photo:  At the arbitration before State Farm's special video connect program (not skype) failed to work.

Usually I don't question my own witnesses in deposition.  The other side is taking the deposition.  And it's their job to do the asking. 

But occasionally there are times when we need to help make sure the record is straight.  Here are some examples:

• When the defense lawyer cuts off the answer, the witness should be given opportunity to respond fully.
• When the defense lawyer bullies and confuses the witness, the witness should be given opportunity to revisit and clarify if needed
• When the defense lawyer refuses to allow the witness to refer to notes or other records, the witness should be permitted to refresh their memory to ensure accuracy

Another example occurs mainly with expert witnesses.  The defense does not want the expert to testify about anything that is harmful to the defense case.  Instead the defense focuses only on trying to poke holes in the expert's opinions.  Under the discovery rules of almost all states, the expert's entire opinion and the basis for the opinion must be fully disclosed before trial deadlines.  Unless all of the expert's opinions are in a written report or disclosed in deposition, they will be excluded.  This means, if the defense does not ask about all the favorable opinions the expert has, the plaintiff attorney needs to do this on the record.

Lastly, if a case can or should be settled, sometimes questions should be asked to show the insurance adjusters the strength of the case.    The defense lawyers usually focus on the trying to tear apart different issues.  So it is up to the plaintiff to point out the strong points.  For example:

• asking plaintiffs how they have been impacted by the injury
• having doctors discuss future risk factors and implications
• requesting lay witnesses to tell stories that illustrate the loss
• having eye witnesses pound home where blame really lies

The decision of whether to ask questions must be well thought out.  Asking bad questions of your own witnesses can be worse than asking no questions at all.

 Photo:  Deposition in our lovely conference room.

There is a school of thought that you should not object during trial.  Just let the bad questions go where they will.   So the jury won't think you are trying to hide something by objecting.  Maybe so.  Maybe not.

But in a video perpetuation deposition the court rules on the objections ahead of time.  And then the videotape is edited.  The jury isn't dragged through the technical details.

In this example, the defense lawyer is used to leading his witnesses by the nose through their depositions.  Enter one irritated plaintiff lawyer (moi).  Here is how it starts off.

11   Q    So when you use the term "volitional control," you
12        mean something that you can verify?
13   A    Correct.
14                MS. KOEHLER:  Object to the form of the
15        question.  Leading. 
16   Q    Is that correct, Doctor, that objective refers to
17        something that can be verified?
18   A    It does. 
19                MS. KOEHLER:  Same objection.  Double
20        leading.

Now this could go on all day.  Instead, after suffering through a bit more of this, I try to deal with it in one fell swoop:

 9               MS. KOEHLER:  I'm going to -- I'm going to
10        object and I'm going to ask for a side bar right now. 
11                A, every question you ask is leading.  The
12        reason that I notice this is because all the Doctor is
13        doing is saying "yes."  There's no explanation. 
14                So I'm trying not to object to every single
15        question that you ask, but everything that you've
16        asked is a leading question.  And so I can just make a
17        global objection to all the leading questions that
18        you're asking, but then you're not going to be able to
19        cure them if you choose to do so.  So I'm not trying
20        to be difficult, but that's the clue, is if the Doctor
21        is just saying "yes," it's a leading question.  And
22        there's just, it's one after the other, after the
23        other, after the other.  So tell me what you want me
24        to do.
25                MR. C:  I want you to make your objection
                            15
 1        to each question if you think it's objectionable and
 2        tell me the basis for it.
 3                MS. KOEHLER:  All right.

Sigh.  The defense lawyer wants me to object each and every time.  And I do so.  With nicely rolled eye balls.

Witnesses who make up crap - make my day.  Especially when they are defense doctors.  This one was so obnoxious that I made a movie in her honor.

Here is the set up.

A guy is careless.  Because of his carelessness, your head strikes an object.  Your neck hyper extends backwards.  You have never gone to the doctor for neck pain.  But after this happens, you have problems right away.  Your neck doesn't only hurt - it radiates pain down your arm and your hand is numb. 

You don't miss work.  You see the doctor, go to physical therapy, modify your life activities, do everything possible.  But it still won't go away.  The MRI says you have a herniated disc.  Your doctor says you have a problem.

But never fear.  The  guy that caused all this has an insurance company.  The insurance company has a doctor it makes you see.  This doctor practices medicine half a day a week.  The rest of the time, she makes a whole heck of a lot of money doing exams for insurance companies.

The doctor examines you.  According to her there is great news.  You are healed and cured.

Never mind that you still have problems. 

According to the insurance doctor you were healed three months after the incident.  Because.  Well, because, that's what she says.

Photo:  an action scene from xtranormal. 

https://www.youtube.com/watch?v=UIK-OQh1mow&feature=youtube_gdata_player

It's been too long since the last trial.  Since the last argument.  Since the last fight.  The defense lawyers have been well mannered lately.  Which is all good and well.  But not that exciting.

This deposition excerpt is from a case where dude was on his phone when he ran down my angel client in a cross walk.  It was with one of my favorite adversaries.  He is hard headed and tenacious.  It is fun to bump heads with him.  And to do so with a smile.

Deposition excerpt:  

Scheild, J. Dep Transcript.pdf

The plane lands in the Tri Cities.  Am on way to rental car.  Defendants pull up in a work truck.  They are picking up Doug - the defense lawyer.  They motion for me to come on over.  They want to give me a lift.  How sweet is that.

Pull self into smelly dirty diesel.  Am wearing jeans so doesn't matter.  All good.

They are being very kind.  Charming.  Yucking it up with me.  Hoping I'll be sweet and kind during deposition.  Yuck it up right back.  Arrive at the office of friend lawyer, Jay Flynn.  We're going to conduct the depositions there.

Our client, Candelario is a quadriplegic.   He fell on a job site in the middle of nowhere.  There was no safety anything in place at all.  To make matters worse, he lay on the ground for hours waiting to be rescued.   These fellas bid a job, subcontracted it out, and thought all they had to do was rake in the profit.  Didn't realize that under the Stute case, they actually had an obligation to make sure the work site was safe.

Here are some excerpts from a deposition that proves yet again - honey works better than vinegar.

safetydepo.pdf

The wife lost not only her beloved husband of 34 years.  She lost her life helper.  Legally blind and with other health impairments, she depended on him to see for her. To take care of her.

We used a highly qualified life care planner named Tony Choppa to draft a plan of what it would take to provide the widow with help.  Specifically, the kind of help she needed from her dead husband.  Going to the grocery store.  Walking her to the bus stop.  Navigating the world.

The defense hired a defense expert to say that Mr. Choppa was way off base.  She wrote a report that attempted to slay the plaintiff's claim of damage.

In this deposition transcript, I slayed the expert.  If you are going to go toe to toe with an someone like Tony Choppa.  You better be qualified to do so.

Here is an excerpt from the deposition:   defense life care planner.pdf

Am sitting next to our expert and the court reporter.  On the other side of the table there are three defense lawyers.  Two more are on the phone.  We start at 2:00.  At 2:35 throw my first fit.   Here is why.

To comply with the subpoena, the expert has brought in every document he's been given and has relied upon. This equals a foot and a half stack of files.  Dale the defense lawyer starts off  asking if it is okay to copy everything and to return the files later.  Permission granted. 

Here's the part that drives me batty:  He then has the expert go through every piece of paper and read aloud what it is:  In this folder is the police report..  In this folder is the list of other incidents...and so on.

This is supposedly to create a record.  Today it takes 45 minutes.    

Midway through I say:  why are you having him do this.  He's given you permission to take and  copy everything.  What a waste of time. 

Nick says:  I don't think it's a waste of time.

I say: well you're the only one who doesn't.

Because what is the point. 

Are you going to impeach the expert in the future based upon the list of documents that he read into the record.  Are you going to learn something you don't already know.  Are you doing anything dazzling or worthwhile at all.  No. You. Are. Not.

Here are the reasons an attorney asks such a silly question:

• run up billable hours
• aggravate the witness
• tire out the witness
• buy more time to prepare questions
• learned to ask this question 30 years ago and can't break a bad habit

There's no need to ask a witness to itemize everything they are giving you to copy.  Resist the urge. 

Sometimes the hardest thing to do in a deposition – is stay awake.

Give me an obnoxious opposing counsel or difficult witness any time. At least the deposition will be lively and fun.

Today, ten of us are in my firm’s conference room. The videographer is at one end of the conference table. At the other sits the witness. In back of him is a neutral screen. It blocks out the angels frolicking on the old antique sideboard that usually dominates that end of the room. The camera is pinned on his face. He will become the ultimate talking head. A jury will hear but never see the rest of us.

A doctor is being questioned by the defense on videotape. They are trying to impeach him. Or to find any dirt they can to use against my client.

The main defense attorney today is very business-like. He is wearing black laced shoes, buffed so there are no scuff marks. Black socks. Dark grey pinstripe suit. Four buttons on each cuff. A purple tie with blue diamonds and hash marks. A little microphone is clipped onto it. White shirt hugs his neck too tight. Can’t see the top of his collar as his chin hangs over it.

He is armed with a prepared detailed outline of questions. He has a plastic blue pen in his right hand that he plays with. He touches it to the paper with the questions. But doesn’t write anything down. He goes through the outline. Question by question. In a measured monotone. He looks over his spectacles as the soft spoken witness gives each answer.

The lawyer to my right is most likely sleeping. His eyes are closed and his shoulder just twitched. Actually it twitched so hard that it woke him up. He definitely was sleeping. Don’t blame him.

An hour passes. I manage to avoid passing out. The defense lawyers are now exchanging microphones so the next one can ask questions.

The second attorney is usually the one who goes first. He’s letting the other defense lawyers take first whack at some of the less important witnesses in the case. His shoes are identical to number one. Same black socks too. But he’s wearing chinos and a light pink shirt. His cashmere jacket is hanging off the back of his chair. And his specs are GQ appropriate. He’s wearing a tie but can’t tell what it looks like because am sitting next to but slightly behind him. Don’t feel like being elbow to elbow.

He asks questions that jab and insinuate. He’s wiley and obnoxious. Half an hour passes in a swirl of objections and all the stuff that gets the blood flowing nicely. Bless his soul.

Here are tips on how to stay awake during a boring deposition.

• Fill glass with liquid, sip til done, refill, repeat
• Sit facing window and look for anything that moves
• Do not rest head on hands
• Do not close eyes
• Do not think of closing eyes
• Do not let eyes close
• Pinch side of thigh
• Apply hand lotion
• Read the exhibits
• Mark up the exhibits
• Apply lipstick
• There's a reason why lawyers drink coffee. If you don't drink coffee (like me) then keep reading this list
• Do isometrics with shoulder blades
• Wiggle toes
• Send an internal email asking staff to turn up the air conditioner
• Volunteer to make photocopies of exhibits
• Hold breath and count to ten or longer
• Dress in layers so you can take off jacket, sweater or whatever in order to get as cold as possible.
• Write down questions you may or may not ask
• Write down questions you wish the other lawyer would ask
• If notice eyes are not open and mouth has gone slack.....WAKE UP!

A high ranking regional manager for Farmers Insurance is asked to explain how Farmers started.  Seems like a pretty straightforward question right? 

Get up at 6:00 am.   Have to drive back downtown before heading south.  Need a plan "B" in case doctors don't have access to the radiology films.  Get ready, feed and quickly walk Nala.  Write note to let the girls know she's been fed.  Wash bowl of raspberries.  Get in car 6:30.  Eat bowl of raspberries on the way.  Get to office by 7:10, run in undo alarm.  Grab computer discs, run out redo alarm.  Back in car 7:15. 

Drive down viaduct. Not going to be able to drive this way much longer.  One lane is blocked off.  The viaduct is doomed.  It is going to viaduct heaven.  Supposedly being replaced by a tunnel.  Which is too bad because it is absolutely stunning driving on this  rare sunny morning with the ocean on the right and the city on the left.

Get onto freeway.  Traffic is flowing nicely.  Ding.  Fuel light comes on drat.  Keep driving, ignore fuel light. Looking for the closest gas station to a freeway exit.  Oh there's one.  Oh, too late to get over.  Next exit there's one.  Nope.  Oh there's one.  Oh, too late to get over.  Want to find the perfect station until see the car is claiming there is less than 5 miles left.  Probably a fudge factor in there.  But can't chance finding out.  Take next exit. 

Gas station has a nice store attached.  Grab two packets of sugarfree gum.   For counterbalance grab a very necessary donut.  Oily and sugary - yum.  Get back in car and onto the freeway.  Drive.  Consume sugar/nonsugar.  Listen to oldies on ipod.

Ding.  What's that.  Not the fuel light.  Warning light says "Maximum speed".  Oops.  Have previously increased the preset manufacturer's default setting.  So basically, am speeding.  Ding.

Arrive at the hospital at 10:00.  My dear paralegal Anne has set the first deposition for 10:30.  This was so I didn't have to get up too early.  Which did anyway because needed to pick up plan "B".  Which now realize is dumb dumb dumb.  Because forgot to bring the computer's DVD drive that is still sitting on my desk.

Pull up to the emergency entrance.  Wrong.  Drive around in a circle.  Or two.  End up in a parking garage.  Pull out phone.  Refers to a map of the hospital campus.  Click on it.  Microscopic.  Can't read it.  Pull out computer.  Dial up, find map.   Am bad at reading maps.  Get out of car with computer bag and plan "B" discs but no disc drive.  Not sure where to go.  Walk a little way and realize have parked right by where need to be.  Am a map wizard queen.  Arrive with ten minutes to spare. 

Videographer and court reporter are already set up.  Have to change the set up though.  This isn't the type of deposition where the camera focuses on the head of the doctor and never moves.  (note:  never do a perpetuation deposition of a talking head - this is a guaranteed bore).

Anne has arranged with the doctor's office for this deposition to be in the hospital medical library.  All the films are stored in the secure hospital server.  The hospital computer is already hooked up to a projector and a screen.  Don't need plan "B" after all hurray.

Nic Scarpelli comes in the room.  First of the four defense attorneys.  What a gaggle.

I explain the set up and he doesn't argue with it.  We actually rub along pretty well most of the time.  Unless he's upset with me.  Hard to believe that could ever be possible.  Am such an angel.

The doctor will start off on camera for background questions.  Then will move over to the computer.  We'll have to turn off the lights since it's too bright.  The videographer will then focus the camera on the screen and zoom onto the projected images.

The doctor is right on time.  I explain the protocol and you can see the shoulders relax.  He doesn't have to leave the familiar world of radiological films.   After a few preliminaries we get right to the films.  He walks over to the computer.  And brings the images alive for the jury.

After he's finished, a second radiologist comes in.  We don't take a break, repeat the process and finish at 12:40 pm.   The defense lawyers bolt out of there.  Where did they go so fast. 

Get back in car.  Donut has worn off.  Equally unwholesome Burger King is handily right at the freeway entrance.  Veggie Burger and fries to go.  Get on freeway almost without incident. Have taken off top part of bun with goopy mayo and lettuce.  This creates a bit of instability in sandwich. Drop piece of tomato on white shirt which now has a pink speckle.   

Doesn't take the full three and a half hours to get back.  Ding!

* A perpetuation deposition is testimony under oath preserved in this case by digital recording and played at the time of trial.  Doctors are commonly perpetuated to avoid trial scheduling nightmares.