How to Make Sure A Corporate Representative’s Deposition Testimony Sticks at Trial

In my opinion, one of the most powerful, yet underused, discovery devices around is the corporate representative deposition. This is because whomever is selected as the representative bonds the corporate entity with whatever their answers are. They are not testifying based solely upon their personal knowledge, but based upon all information known or available to the corporate entity.

That is the reason that the notice of the deposition must list the topic areas to be addressed- so that the corporation can select an appropriate designee who will be prepared to testify as to each of the topics. deposition4 (3)

I am usually taking corporate representative depositions in limited categories of industries: trucking, bus or taxi companies, other entities that employed a driver involved in a collision, or representatives of insurance companies. What I have found is that often the individuals produced to testify either have not been properly prepared by counsel, or they have not taken steps to familiarize themselves with the topic list, or have not made a search for the documents that I have demanded be produced. So here are a few ways to make sure that favorable responses to questions based on those failures will hold up and be admitted when you try to use them:

First, in the preliminary instruction portion of the deposition, I ask the following questions:

You understand that you are here to testify on behalf of XYZ Corporation?

You understand that your answers will be based not only on your personal knowledge, but also based upon all information that is known to or available to the corporation?

You understand that your answers today will be binding on XYZ Corporation?

Then I take the Notice of Deposition and mark it as Exhibit 1.

Mr. Representative, can you take a look at what I have marked as Exhibit 1, which is a copy of the notice for this deposition?

Have you ever seen Exhibit 1 before?

Have you read it before today?

Are you prepared today to give testimony about each of the subject areas that appear in Attachment 1, the Topic List?

If you will turn to the next page, you will see Attachment 2, which is a list of documents that I have asked you to produce.

Have you seen Attachment 2 before? When? Have you read it? Have you made an effort to search for responsive documents?

Then I go through the list of categories of documents. I read each request and ask the following for each category:

Do you have any documents to produce today in response to category 1? What?

Are there any documents that you are not producing today? What?

Why are they not being produced? If it’s a privilege issue, ask sufficient follow-up to be able to test the privilege. What is the document, who has possession of it, what is the date and what general topic does it address?

If they say there are no documents responsive to a particular request, ask: Have you made a diligent search in advance of this deposition for documents responsive to that request?

After that series of questions, you can go ahead and ask anything you like with reasonable confidence that you will be able to use it against the entity at trial, and they will not succeed in wiggling out of any answers they don’t like later on. And you will most likely get a ton of good stuff, because for some reason it seems like corporate representatives are never fully prepared, and even after you tell them in advance, they don’t appreciate the binding legal effect their answers will have. Just about every time I do this, I get useful binding concessions, and I bet you will too.

Keep your kids alive, buckle them up.

180px-Child_car_seat_By watching TV commercials, it seems that rear-facing backup cameras are all the rage in new trucks and SUV’s. They are supposed to reduce the risk of hurting a child, animal, or anything else that can be behind the vehicle but is short enough that you can’t readily see it through the rear window. But this article points out that backover injuries or fatalities may not really be as big of a problem as the commercials would have you believe, particularly when compared to the number of child fatalities that are caused by children being improperly restrained- not using a seatbelt, booster chair, or car seat. The article also argues that the cost of the cameras may not be justified because backover injuries are not as big of a problem as people think.

According to the article, in 2011 “back-overs” were the cause of 79 child deaths, while for the same year 371 unrestrained children under 15 died in car wrecks. I only see these backup cameras in new, usually expensive vehicles. If I am reading the graph in the article correctly, if backup cameras were required in all new vehicles, the estimated cost would be over 2 billion dollars a year. I wonder what it would cost (if it’s even possible) to install something that wouldn’t let you drive the car if a child was unbuckled or unrestrained?

I have been a personal injury lawyer for about 15 years. During that time I have handled hundreds, if not thousands, of car accident cases. Many of those cases involved cars that had children in them. In my entire career, I have never had a case where a child was seriously injured or killed in a crash when they were wearing a seat belt, or where they were in a car seat or booster chair. Not so much for unrestrained kids. The worst thing I have seen was a dead child on the floor of a minivan, right next to the car seat that nobody bothered to buckle him into. I can’t imagine how the parent looks in the mirror every day. Don’t be that parent. Make sure your kids are safely secured as the law requires, and save me from one more horrifying set of accident scene photos. Please.

So, uh, yeah, the internet is public. Just so you know.

You know what’s funny about stuff you post on the internet? It’s public, and that means people can see it. This includes those you would rather not see it. For example, if you are a disability claimant, you may want to forego that chance to post a video on Youtube of yourself half-naked, covered in tin foil, breakdancing to “Magic Carpet Ride.” Once somebody sees it, you could have a problem with your total disability claim.

This is also very important for people who are making a personal injury claim. Nowadays just about everybody has some form of social media account, and just about all of them give the use the ability to post pictures or video. As a personal injury lawyer, increasingly I am seeing defense attorneys checking my clients out on the web, including social media accounts. Defense attorneys are also seeking access to these accounts in discovery. I always object to producing social media login information, and so far I have not yet had anyone take the issue before a judge.

But I do advise all of my clients that they should stay off social media entirely while they have a pending claim, or if that’s not possible, they should careful to never post anything that is even arguably inconsistent with the claim they are making- even to the extent of not posting a picture of yourself at a wedding, or outdoors smiling. It is very easy for that to be taken out of context.

Sometimes, it doesn’t even have to be taken out of context. I had a case in the past year where my client had pretty serious, objective injuries- broken clavicle, lacerated kidney, badly sprained ankle. It was a pretty bad accident with solid liability. In discovery, I found out that despite my advice about this very issue, 3 weeks after the collision my client had posted a video to her Facebook account showing her drinking and laughing with friends, and dancing in her sling and walking boot. When I told the client, she said “but I don’t understand, I had my privacy settings on lockdown.” Often on the internet, even what you may think is private really isn’t. Very shortly after I was made aware of this, we settled the case. And it settled at a dollar amount that reflected the new value of the case with the video in evidence, not the old “no video” value.

So for my lawyer and injury victim readers, be very careful about your online presence when you are involved in a claim, because whether you think so or not, it may come back to bite you.

What it’s like having me as co-counsel

I am often asked to co-counsel cases with other lawyers. Whether they are new lawyers or experienced attorneys, usually these are folks who do not have extensive experience trying serious personal injury cases, or who do not have the resources to try that kind of case the right way.

I figure the best way to figure out whether I am the right lawyer to help you with your serious injury case is to hear what other lawyers who have worked with me have to say. Here are some thoughts written by one of the lawyers I have worked with recently:

If you’re a lawyer looking for co-counsel, give me a call, even if trial is coming up. I particularly enjoy the challenge of jumping into cases shortly before trial.

Staying Objective Is Not Always Easy

Nobody ever calls me because something good happened. That’s an unfortunate reality for lawyers in my line of work. Every time the phone rings, it is because something bad happened. At best, the bad thing is a totaled car and a painful, but treatable, injury. At worst, the bad thing is a catastrophic injury or the death of a loved one. Empathy is an emotional quality that is a job requirement for personal injury lawyers. If I can’t imagine myself in my client’s shoes, how can I hope to tell their story to a jury in a compelling, persuasive way? I don’t think I could.

Of course, I also need to retain my objectivity so that I am able to give my client sound, well-reasoned legal advice. Decisions such as whether to settle (or for how much) or to press on to trial should not be clouded by being too close to the case. That’s why it is a bad idea for lawyers to represent close friends or family members. I have been doing this kind of work for a long time, and I think I am generally able to balance the right amounts of empathy and objectivity to get the best results for my clients.

Sometimes that is easier than others. Right now I am working on a wrongful death case against an insurance company. The victim was hit by a car that was being driven by a DWI driver. The driver left the scene and tried to cover up the crime by having his car repaired, but was eventually caught by the police. The victim’s family brought a claim and settled with the driver’s insurance company for the policy limit, which was the state minimum at the time. But the victim was covered by underinsured motorist insurance with a higher limit, so there are additional insurance benefits available to cover the damages. The deceased’s family made a claim for the additional insurance benefits. The insurance company denied the claim- it says that the victim’s death was his own fault, so it is not responsible for paying the claim because under Maryland law the victim was contributorily negligent.

I spent a whole day in depositions on this case earlier in the week. The widow testified that on the day of the crash, she had picked up their daughter (2 years old at the time) from her father. She said that the little girl sprinted right up to Mommy, the way excited little kids do. She was so excited to see her Mom that she forgot to give her Dad a hug goodbye. Mom, of course, did what good Moms do- she sent her daughter back to give Daddy a hug and a kiss. That was the last time the little girl ever saw her Dad.

After five and a half hours of this kind of heart-wrenching testimony, my work day was finally over and I went home to my family. The first thing I saw while I was going up the walkway to my house was my own beautiful 18 month old daughter running down the hallway to hug Daddy. I had a hard time getting to sleep that night. Every time I think about this case, I see my own little girl. Sometimes my job is hard, but I know I am on the right side.

Professionalism on Appeal


One of the many hats I wear at Miller & Zois is that of our in-office appellate specialist. What that really means is that I handle all of our law firm’s personal injury cases that wind up being appealed, and that I accept referrals (from other lawyers only) to handle civil appeals of all types.

One thing I see over and over is briefs from the other side that make the ill-advised choice to attack the trial judge or trial counsel. And I don’t mean with reasoned legal arguments, I mean things that are over-the-top, like allegations that the judge was biased, or ad hominem attacks on the opposing party or their counsel. There are a lot of things wrong with doing that, but the two main ones are 1) it’s unprofessional and 2) making yourself look like a jackass isn’t very persuasive.

If you handle appeals on a regular basis, you should take a look at “Professionalism On Appeal: The Good, The Bad and the Ugly”, an article by Howard J. Bashman, a Philadelphia-area appellate specialist. I think he sums it up nicely by saying: “Indeed, expressing animosity toward opposing counsel on appeal, or toward the trial judge, usually proves to be counterproductive rather than an effective strategy for victory.”

Take a look at his article. I think it’s a refreshing take on the way appellate litigation should be practiced.

Some ways I use Apple’s iPad in my personal injury practice

Several months ago, Miller & Zois issued iPads to all of our attorneys. By now mine has become indispensable for a wide variety of my litigation tasks. There are some things that I will never do the “old fashioned way” again. So I thought I would share a few of the ways this new technology has made my life easier.

Motions hearings/Pre-trial conferences: I rarely take a paper file to simple motions hearings or Pre-trial conferences. I will usually bring a courtesy copy of the Pre-trial statement or the motion at issue for the Court, just in case it hasn’t made it into the file. Otherwise, the only paper I bring is a legal pad. For a motions hearing, I use Dropbox to send .pdf copies of the motions, responses and replies, the cited case law, and my argument outline directly to my iPad. I have everything I could need available to me in an instant, without fumbling through a file jacket or flipping through a long opinion to find a particular passage. This makes my argument quicker and more organized, and gives me an advantage when the Court has a question about something that I may not know off the top of my head- I can generally find whatever it is and be able to respond more quickly than if I were using a traditional file.

Depositions: I do these in a very similar fashion to a motions hearing. When I do my deposition prep, I load any pleadings, deposition transcripts, medical records or produced documents onto the iPad (again, using Dropbox). My deposition outline goes on there too. It’s really a great way to carry 1500 pages of Bates-stamped medical records without lugging a long a 20 pound trial case. The only other thing I take is a leather presentation folder with a legal pad in it. Also in the folder are pre-printed copies of any photos or documents that I plan to use as exhibits.

Really, the only drawback I have found is when shortly before or during the deposition I realize that there is a document that I will need as an exhibit that wasn’t prepared in advance. On those few occasions, it has been easy to have my paralegal fax over a copy, or to email a copy myself to whichever attorney is hosting the deposition and ask them to print a copy. So far it this has happened less than a handful of times and hasn’t caused any issues.

Legal research and writing: iPads are great for viewing and working with documents. However, I do not find mine terribly useful for creating documents, like when I have to write a motion, motion response, or an appellate brief. For drafting those, I still use my trusty old desktop PC and laptop.

But that doesn’t mean that I don’t find my iPad invaluable to my writing process. For example, I no longer use paper copies of cases, statutes or treatises while I write. It used to be that when I did my legal research I would print paper copies of the relevant cases, read, highlight and annotate them, and keep them in a pile next to me, referring, citing and quoting them as needed. Then they would all be binder-clipped to a copy of the motion or brief they were in and stowed away in the file, ready to be used if the need arose at argument time.

Now, I skip all of that. I do just about all of my research electronically on Lexis. One of the Lexis features that I like best allows you to email yourself a .pdf copy of the case, instead of printing it out. Then the electronic copy is saved to my Dropbox and synced to my iPad. Once that’s done, I use a program called GoodReader to highlight and annotate them. I even have an iPad stand that sits on my desk (it kind of looks like an old fashioned typing stand) so that I can page through the case law directly on the device as I write. This saves me time several different ways, since I don’t have to wait for printing, don’t have to keep track of a pile of paper, and I automatically have all of the cases saved electronically, so it’s easy to save them along with whatever motion or brief they go with. Then, as I wrote above, when I get to the hearing or argument, I have all of the pleadings filed by both sides, and the cases cited in those pleadings literally at my fingertips for use in a moment’s notice.

Client intake/prep/meetings: I have found the iPad to be a tool that really impresses clients. Part of that is the “hey, neat gadget” factor, but sometimes it proves to be really useful.

For example, at initial client meetings I often pull up the scene of the auto accident or other occurrence in real time on Google Earth. That way the client can directly and accurately explain the layout of the road, where they were when they first saw the other car, the point of impact, etc. It has also been useful on a few occasions to prevent me from taking a case that I shouldn’t have. For example, by showing me the stop sign my prospective client had that they “forgot” to tell me about.

Since the iPad also has a pretty good built-in camera, I also use it to take photos of injuries and/or scars, as well as head shots of potential witnesses for me use to identify them to the jury in my opening statement.

Anything out of the office: All of my email from my Miller & Zois account also goes wirelessly to my iPad. This is invaluable when emergencies arise, since I can quickly respond by email when I am doing something like sitting defending a deposition. It’s also great for emailing my paralegal “to do’s” as I think of them, rather than having the chance to wait and forget.

Now, don’t get me wrong- there are some litigation tasks that I still do the same way I did in the dark ages of the 1990’s. Maybe I will try to fit them into another post in the near future. Also, there will most likely be another post coming up about the various ways an iPad can be useful at trial. So keep coming back to the blog!

The best work day of the year.

Today is my favorite workday of the year.

Obviously, I love being home with my wife and family during the holidays, but I can’t shake my affinity for working the days between Christmas and New Year’s. December 26th is the best day of the year to be in the office.

Like many offices, ours is half-empty because a lot of folks have decided to stretch the holidays into a week of family time. My phone will barely ring today because clients, opposing counsel, and insurance adjusters are busy vacationing or just enjoying family time. Other than new case intake (unfortunately, serious injuries don’t take the holidays off) I don’t expect to get many calls today.

So today is a great day for catching up on correspondence, writing and blogging. Got an unusual case where you need to custom-draft discovery requests? Today is the perfect time to do it. Responding to a motion or working on an appellate brief? Today is ideal.

So I plan to spend the day in my office listening to music and catching up on a variety of writing I have been trying to find time for.

Of course, my happy outlook on being at the office the day after Christmas has nothing do with the fact that my house looks like a Christmas cyclone swept through it. I promise.

I hope you have all had a great holiday season, and that if you find yourselves working today, you are being productive!

Citing 50 year-old cases from trial courts that no longer exist isn’t super persuasive, just so you know.

The most time consuming part of getting any case ready for trial is discovery. This is the process of the two sides learning (discovering, get it?) information about each other’s cases before trial. This is what the lawyers and clients spend their time doing for most of the year between when the case is filed and the trial.

Discovery happens two ways- by exchanging written material, and in person. In person discovery is usually in the form of a deposition, where witness testimony is taken under oath and transcribed for use later on. That’s not what this blog post is about.

I am here to talk about written discovery, or more accurately, the often ridiculous objections I see used in an effort to avoid answering it. The two primary forms of written discovery are interrogatories and a request for production. Interrogatories are written questions to the other side that must be answered under oath. A request for production is kind of the same, except it is a set of written requests that the other side produce documents or other tangible things relevant to the case.

When you receive the other side’s answers to your written discovery, you are going to get one of these three things (or some combination thereof): 1) an answer, 2) an objection, or 3) an objection with a partial answer. Under the Maryland Rules, only options 1 & 2 are really allowed, but option 3 is kind of an “everybody does it anyway” type deal.

That’s all fine. Objections to discovery requests are and should be allowed. Sometimes they are even meritorious (usually not). But what really bugs me is the way the objections I see over and over are supported. I think there are law firms in Maryland that have been using the same cases to support discovery objections since before I was born.

Here is a smattering of citations that were used to support objections to discovery requests that I have received this year (I swear this is true):

Sperti v. Muir, Court of Common Pleas of Baltimore City, Prendergast, J., Daily Record, Aug. 10, 1966, Maryland Rules Decisions, Pg. 291.

Thorn v. Good Humor Ice Company of Baltimore, Superior Court of Baltimore City, Prendergast, J., Daily Record, May 8, 1964, Maryland Rules Decisions at 265.

Brocato v. King, Daily Record, June 29, 1956.

OK. Here’s the thing. First, these are all unreported trial court opinions, which may not be cited as authority under Md. Rule 1-104 and the cases interpreting it. So that’s a problem. Second, they are trial court opinions from trial courts that no longer exist. Go to the Maryland Judiciary’s website and let me know when you find the Superior Court of Baltimore City, or the Court of Common Pleas of Baltimore City. Third, Maryland Rules Decisions was never an official reporter, just an unofficial volume put together by one of the bar associations. Finally, you can’t even get copies of these opinions anymore, at least not on Lexis. I even tried just to see if I could and got nothing.

So the moral of this story is that if you are going to object to my discovery requests, why not try to find some authority that is younger than I am, that’s actually from a published case, and maybe even from a court that still exists? I mean, it can’t really be that hard to find a real case that supports your objection, can it?

How to handle expert witnesses with disciplinary charges/orders.

There has been some controversy recently in the community of Maryland lawyers who handle personal injury and worker’s compensation claims.

It can sometimes be difficult to locate medical providers who will treat patients who were injured in accidents or on the job. If the patient was injured in an accident, the physician may have to wait for payment until the personal injury case resolves. In the case of a work-related injury, the physician must by law accept payment according to the fee schedule set by the Maryland Worker’s Compensation Commission, which is usually far less than the rates paid by private insurers. Many medical providers aren’t willing to accept these conditions, so the few who will are an invaluable resource for Maryland personal injury lawyers and our clients.

One of the local medical practices willing to treat these sorts of patients has become involved in proceedings before the Maryland Board of Physicians. Some of their doctors have pending disciplinary charges, and some others have already consented to orders resolving the charges. This has attracted the attention of those in the legal community working on those sorts of cases, and has been commented on by industry bloggers.

I kind of view this as a tempest in a teapot. The charges are not the sort where I would expect any of the physicians involved to lose their licenses or have them suspended.

Perhaps most importantly, the existence of the charges and/or disciplinary orders before the Maryland Board of Physicians is not discoverable or admissible in any civil or criminal action in the State of Maryland.

We have a statute for this- Md. Health Occupations Code Ann. §14-410 (a). The statute says that:

(1) The proceedings records, or files of the Board or any of its investigatory bodies are not discoverable and are not admissible in evidence; and

(2) Any order passed by the Board is not admissible in evidence.

So if you find that you have a treating physician or an expert witness who has been involved in proceedings before the Maryland Board of Physicians, relax. Those proceedings are never going to come into evidence, and the jury will never hear about them. Provided, of course, that you are prepared with a motion in limine citing the law on the issue.