Quick Tips, Preparing Clients for Tricky Deposition Questions, DC Trial, Vol. XIII, No. 2 (Summer 2013).

For this column, I will discuss preparing for and dealing with potentially tricky questions posed by defense counsel.

Below are some trick (or tricky) questions I’ve encountered at clients’ depositions over the years. While objectionable, they are not necessarily susceptible to instructions not to answer. If they are applicable to the facts of your case, it is best to prepare your client for them.

Q: “How did you pick this physical therapy outfit?”

Comment: This question arguably assumes that the plaintiff independently selected the physical therapist. While the plaintiff almost certainly attended physical therapy at the location that is the subject of the question, he may have been referred there by his treating physician or someone else.

Q: [In a pedestrian case] “How far were you into the intersection when you looked for traffic/vehicles?”

Comment: This classic is obviously objectionable because it puts the plaintiff in the intersection or crosswalk before he first looked to see if it was safe to enter the roadway. Object that it assumes facts to which the plaintiff has not testified or misstates prior testimony, or both.

Q: “Is it possible that...?”

Depending on how this question ends, defense counsel is probably trying to trick your client into (1) offering an opinion when she is unqualified or lacks sufficient facts to do so or (2) speculating. Object that the question calls for an improper lay opinion, speculation, or both. Prep your client with some of these questions and also remind her to beware of saying that something is impossible.

Q: “So you injured your neck and back in the accident [the question omits the right leg, which was also injured]?”

Comment: I’ve encountered many defense attorneys who, after hearing from plaintiff a litany of body parts injured in the occurrence, later ask a leading question purporting to summarize plaintiff’s testimony that omits facts or portions of that testimony. If you catch this mistake or tactic, object that the question misstates prior testimony and insert the omitted fact or testimony in your objection. It is worth advising your client of this potential issue in case you later miss the objection at her deposition.

Questioning tactic: Rapid-fire questions that don’t give the client time to complete an answer or questions that cut off a client’s complete answer.

Comment: I always advise clients to pause before they answer. If need be, I’ll do this again during a deposition. I also tell them not to allow defense counsel to move on to a new question if they haven’t completed an answer. This becomes a problem when a client is thinking about how to complete an answer and we – as defending counsel -- cannot tell that the answer is, in fact, incomplete (e.g., client gives an answer that seems complete, then provides a long pause). This often arises when the client is answering questions about her injuries, the effect they have had on her, the things she did before the occurrence that she no longer does at all, as long, without pain, or as well.

Q: “Why did you sue my client?” and its cousin: “Why did you sue my client for $500,000 dollars?”

Comment: As we know, attorneys, not clients, choose the amount claimed in the Complaint. If there were conversations between my client and me about these issues, I would object and instruct the client not to answer as an answer would violate the attorney-client privilege in Maryland, the District and Virginia. Even if, however, there were no such conversations (there ought to be [1]), in cases filed in Maryland Circuit Courts and DC Superior Court I would object to this question as it is not reasonably calculated to lead to the discovery of admissible evidence, and seeks irrelevant and unfairly prejudicial information. In those jurisdictions and in Virginia, [2] assuming it is true, I would prepare the client to say that he only wants the jury to return a fair verdict and that he left the amount of the lawsuit up to his attorney (I haven’t had a client select – as opposed to approve of – the amount of a lawsuit in my career).

Q: [If the client had chiropractic treatment before the injury causing event:] Defense counsel may ask “Didn’t the chiropractor twist your back around?” or “Didn’t he crack your back?” (implying that the chiropractor caused the problems the client alleges were caused by the occurrence).

Comment: Prepare the client to testify in detail about what was done at the chiropractor’s office and, if true, how these visits helped him.

Q: [In contested liability cases] Prepare your client for questions “The impact came as a shock?” “So you weren’t thinking clearly?”

Comment: Defense counsel will use these questions to undermine your client’s perceptions of the injury causing event. While the answer to the first question may be “yes,” it does not necessarily follow that this will also be the answer to the second question.

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After each deposition, I evaluate how my client did and whether changes to my client’s deposition preparation session could have improved his or her performance. I loosely work from an outline – which includes the above tricky questions – to make sure I have not missed any topics. Carefully preparing your clients for, among many other things, these tricky questions can help to elevate both their comfort level and performance at their depositions.

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If you have any ideas that you think would work in this space, please email me at eric@stravitzlawfirm.com. Although I cannot guarantee that your ideas will make it into the column, I’ll certainly appreciate hearing from you.



[1] Unless you have a case in which the circumstances and damages require that suit be filed in Federal Court under diversity jurisdiction or in a Maryland Circuit Court (in which – like Federal Court -- you can now file “in excess of seventy-five thousand dollars ($75,000)” under Maryland Rule 2-305). Even then, it is a good idea to discuss the amount of the lawsuit with your client.

[2] In Virginia, any party is permitted by statute to discuss in opening statement or closing argument, or both, the amount for which plaintiff sued. Virginia Code § 8.01-379.1.