Discovery

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.

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.

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.

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!

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?

Timeliness of Court Rulings

Litigation is a deadline-centric business. There are deadlines for just about everything lawyers must do in a court case. The statute of limitations sets a deadline for filing the complaint. There are deadlines for filing expert witness designations, for the close of discovery, and for filing pleadings, motions and appellate briefs. Nearly everything a trial lawyer does has a deadline imposed by the law, the rules of court, or a by court order.

You know who is in the litigation business but is not constrained by deadlines? Judges.

I think every lawyer has had the experience of filing something and it vanishes into the abyss, only to be heard from again when somebody finally gets around to it.

For example, in one of my cases, I filed a motion for sanctions on February 8. Today is June 1. It’s been nearly four months. No ruling has been made, no hearing has been set, no judge’s chambers has contacted me. And I know the court is aware of the motion. It has been docketed and assigned a document number. I filed another motion April 13. It has also been docketed and assigned a document number. Again, as of today, no ruling, no hearing set, no contact from the court. That motion has been ripe for over a month.
I do not believe that this is something that any judge would find acceptable if it were done by one of the parties or their counsel.

I know courts are busy. I know the clerk’s offices are inundated with paper and don’t always operate under ideal conditions. But seriously. Is it really that hard to send a 5 page motion to a judge, have them spend 10 minutes reading it, and then either set a hearing or sign an order?

I wish there were a court rule requiring courts to take action on a motion within a set time period after a motion becomes ripe for a ruling. As it is, there’s not an easy solution to the problem, beyond calling and pestering the clerk’s office to get it sent to a judge. Of course, that creates at least some concern of irritating clerks and/or judges that you will need to interact with in the future.

Not an easy problem. Any readers have a better idea for how to handle these situations? Perhaps require clerks and motions judges to wear clocks like Flavor Flav?

Is Being A Bad Lawyer An Ethical Violation?

The Legal Profession Blog has a post linking to a lawyer discipline case from New York where an attorney was suspended for two years after being sanctioned by the U.S. Court of Appeals for the Second Circuit. Even after the two years is up, he can only practice again after the entry of a court order allowing it.

This is a pretty serious sanction. What did he do? Steal from a client? Miss a filing deadline? Get a criminal conviction? Was he a tax cheat? Nope. He got suspended for being a terrible lawyer. The court noted that on multiple occasions he had submitted briefs of “shockingly poor quality.” Things like getting the names of his clients wrong, including irrelevant boilerplate, referencing evidence that was never submitted, and filing the work of a paralegal without reviewing it.

I am so happy to see a court take a stand like this. My practice is 100% litigation, and you would not believe the astonishingly poor quality of some of the written material I see submitted to both trial and appellate courts. I’m not talking about proofreading or citation errors. Everybody makes a mistake sometimes. I mean stuff so appalling that it is clear that no attempt was made to edit or even read it before filing.

I have a case now where opposing counsel has filed papers with the court certifying that pleadings and discovery were served on me three weeks before the date they were actually mailed to me. When I got them, they were unsigned and turned out to be mostly gibberish. The best part, and I swear to God I am not making this up, is that they were printed in the Comic Sans typeface. I asked twice, in writing, for the filing to be corrected so the court knew the correct dates I received the material. Nothing. It’s the most astonishing thing I’ve seen in 14 years practicing law. I’m now awaiting a ruling on my second motion for sanctions.

I wish courts were more active in policing this kind of thing. But the reality is that most of the time nothing gets done about it unless the behavior is particularly egregious or it is repeated often enough that eventually a judge ends up getting really mad.

Defense Requests for Medical Authorizations

One thing I am seeing defense attorneys do more and more is using a Md. Rule 2-422 Request for Production to try to get plaintiffs to sign authorization forms permitting the defense to access medical and other information without a subpoena. For them, it’s a more efficient (some might say lazy) way to obtain the same material they could get by serving a subpoena on the person who has whatever records they want. For plaintiffs, it’s allowing the defense free license to root through anything they want without worrying about the protections afforded plaintiffs under the Maryland Rules and the Health General Code.

Since I see this so often, I imagine there must be personal injury lawyers out there who allow their clients to sign them. Other personal injury lawyers, that is. Not me or the lawyers in my firm.

Now, I’m a reasonable man. I’m not saying that there are no circumstances where I will allow a client to sign a defense authorization. In some cases I don’t have a choice. In first party claims against an insurance carrier for UM/UIM benefits, for example, the carrier often has a contractual right to obtain an authorization written into the policy. Or if the records being sought are maintained out of state (and therefore outside the subpoena power of a Maryland court) I will often agree to an authorization, as long as it includes appropriate limitations that I have approved in advance, like excluding records about mental health, substance abuse, or STD/HIV/AIDS treatment. If they don’t agree to my requested conditions, they are welcome to get an out-of-state subpoena issued the hard way.

I don’t believe in making opposing counsel’s life difficult just for the heck of it, although sometimes it’s tempting. But I would be remiss if I gave away my clients’ privacy protections under the law for no good reason, and that is what I would be doing by allowing my clients to sign these broadly-drafted defense authorizations.
Here is one of these requests that I just received, and my response:
REQUEST NO. 20: The Plaintiff is required to execute the attached Medical Release Authorization form and the Employment Records Release authorization form so that the Defendant may obtain any and all documents requested not currently in possession of the Plaintiff, the Plaintiff’s agents, or the Plaintiff’s attorneys.
RESPONSE: No, she’s not.
Yes, that was my actual response. I won’t deny I’m a smartass, but it’s also legally accurate.
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Using Private Investigators in a Personal Injury Practice

I’m 38. For many in my generation, when we hear the phrase “private investigator”, Tom Selleck playing Magnum, P.I. is what springs to mind. But in the real-world practice of law, there are certain times when a good private investigator can be invaluable, even if he isn’t a Ferrari driving ex-Navy SEAL.

One example is locating difficult to find witnesses. A few years ago we had a red light – green light case in Baltimore City where our client had a permanent crush injury to her ankle. The case was vigorously contested on liability, and the only locatable witnesses agreed that the defendant had a green light. So I got my investigator working on locating the other witnesses who were listed on the police report. He found one of them- an 11 year-old boy who had seen the accident happen from a friend’s porch that was located a short distance from the light. He confirmed that my client had entered the intersection on a green light.

We tried that case. The jury found the boy more credible than the adult witnesses, who had been drinking that afternoon. The jury awarded our client over a million dollars in damages- on a case we never could have won if we hadn’t found that witness.

Private investigators just seem to be better at locating people than process servers. So in addition to locating witnesses, often I will use a private investigator to serve a summons on a defendant if they are hard to find. I think one reason PI’s are better at this lies in the compensation structure. Process servers only get paid when service is made, while PI’s get paid by the hour. So the process server has a financial disincentive to spend time working to locate a “hard serve” while the PI does not. Of course, another factor is that the PI likely has investigative training that the process server does not.

PI’s are also good for taking recorded statements from witnesses once they are located. This is important, because it is possible for the person who obtained the statement to become a witness in the case if there are any questions about the authenticity of the statement or the circumstances under which it was taken. That prevents counsel from becoming a witness in the case.

Practice tip: Oftentimes, insurance companies will get a recorded statement from a witness shortly after an accident occurs. In many cases, this will be months or even years before you know the witness even exists. So when I send an investigator to locate and get a statement from a witness, I send along a pre-printed permission form for the witness to sign allowing me to get a copy of any statement they have given previously. Once it is signed, under Md. Rule 2-402 (f), the defense must produce a copy of the statement.

Florida Court Allows Financial Bias Discovery of Plaintiff’s Treating Physicians

Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.

In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. One was handled in the trial court by my colleague Rod Gaston, the other by me, and I was appellate counsel in both. So we feel that our law firm is out on the leading edge in this issue.

One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is neccessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.
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