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Auto Accident Depositions This 49-page chapter from T. Evan Schaeffer's Deposition Checklists and Strategies provides strategies, tips, pattern questions, and deposition outlines. It covers:
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Auto Accident Depositions Elements of cause of action, typical defenses, documents, deponents, defendant-driver deposition, police officer deposition, reconstruction expert deposition by T. Evan Schaeffer Excerpted from Deposition Checklists and Strategies
I. Elements of the
Plaintiff’s Cause of Action A. Theories of Recovery §2:01 Overview §2:02 The Elements of Negligence, as
Applied to Vehicular Liability §2:03 Practice Tip: Read Your
State’s Model Jury Instructions §2:04 Common Fact Patterns §2:05 Practice Tip: Don’t Overlook
Potential Defendants §2:06 Practice Tip: Know the
Statutory Law of Your State B. Typical Defenses in a
Vehicular-Liability Case §2:20 Contributory or Comparative
Negligence §2:21 Other Negligence-Based
Defenses §2:22 Practice Tip: Discover and
Attack the Facts Upon Which the Defense Is Based II. The Discovery Plan A. The Sequence and Timing of Discovery §2:30 The Initial Round of Written
Discovery §2:31 Caution: Never Overlook the
Importance of Insurance §2:32 Request for Admissions §2:33 Practice Tip: Inspect the
Scene §2:34 Practice Tip: Secure the
Automobile if It Is a Total Loss §2:35 Depositions §2:36 Written Discovery of the
Opinions of Defendant’s Experts §2:37 Practice Tip: Consult With
Your Client’s Doctor B. Documents and Exhibits in a
Vehicular-Liability Case §2:50 Documents and Exhibits:
Overview §2:51 Liability Documents §2:52 Damage Documents §2:53 Practice Tip: Take Your Client
to Depositions C. Typical Deponents in a
Vehicular-Liability Case §2:60 Typical Deponents: Overview §2:61 Occurrence Witnesses §2:62 Practice Tip: Learn to Do
Informal Discovery §2:63 Medical Witnesses §2:64 Other Witnesses Regarding
Damages §2:65 Practice Tip: Abstract
Depositions as You Go §2:66 Defendant’s Expert Witnesses §2:67 The Depositions the Defendant
Will Take §2:68 Practice Tip: How to Use
Experts in an Auto Case III. Deposition #1: Defendant-Driver A. Setting the Stage §2:80 Overview §2:81 Timing B. Deposition Goals, Strategy,
Preparation, and Exhibits §2:90 Deposition Goals §2:91 Deposition Strategy §2:92 Deposition Preparation §2:93 Deposition Exhibits C. The Deposition Outline 1. Background Facts and Thumbnail Outline §2:100 Background Facts §2:101 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions §2:110 Standard Introductory Questions §2:111 The Witness’s Background §2:112 The Witness’s Preparation for the
Deposition §2:113 The Witness’s Relationship to Other
Parties and Witnesses §2:114 Practice Tip: Putting the Witness at Ease 3. The Collision §2:120 Part I: Events Leading Up to the
Collision §2:121 Part II: Central Events §2:122 Part III: After the Collision §2:123 Practice Tip: Driving Experience and
Licensure 4. Defendant’s Condition on Day of Collision §2:130 Defendant’s Activities on the Day of the
Collision §2:131 Practice Tip: Estimates of Times §2:132 Practice Tip: Establishing Fatigue §2:133 Alcohol and Drugs 5. The Vehicles §2:140 Condition of the Deponent’s Vehicle
Before the Collision §2:141 Condition of the Vehicles After the
Collision §2:142 Practice Tip: Lack of Damage as Evidence
of Negligible Force 6. Traffic Tickets and Plaintiff’s Negligence §2:150 Traffic Tickets §2:151 Plaintiff’s Contributory Negligence 7. Admissions, Witnesses, and Statements §2:160 Admissions §2:161 All Witnesses to the Occurrence §2:162 Knowledge of Conversations §2:163 Formal Statements §2:164 Informal Statements and Interviews §2:165 Conversations About the Accident or the
Lawsuit 8. Closing §2:170 Photographs and Diagrams §2:171 Closing Questions IV. Deposition #2: Police Officer Who Did
the Accident Report A. Setting the Stage §2:180 Overview §2:181 Timing B. Deposition Goals, Preparation, and
Exhibits §2:190 Deposition Goals §2:191 Deposition Preparation §2:192 Deposition Exhibits C. The Deposition Outline 1. Background Facts and Thumbnail Outline §2:200 Background Facts §2:201 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions §2:210 Standard Introductory Questions §2:211 The Witness’s Background §2:212 Relationship to the Parties and Witnesses §2:213 Practice Tip: The Importance of Law
Enforcement Witnesses §2:214 Preparation for the Deposition 3. The Occurrence §2:220 The Witness’s Involvement in the
Occurrence §2:221 The Witness’s Involvement in the
Occurrence, Continued §2:222 The Accident Report 4. Witnesses and Statements §2:230 Knowledge of Other Witnesses §2:231 Statements at the Scene by the Parties §2:232 Other Conversations About the Occurrence V. Deposition #3: The Defendant’s
Accident Reconstruction Expert A. Setting the Stage §2:240 Overview B. Deposition Goals, Preparation, and
Exhibits §2:250 Deposition Goals §2:251 Deposition Preparation §2:252 Deposition Exhibits C. The Deposition Outline 1. Background Facts and Thumbnail Outline §2:260 Background Facts §2:261 Thumbnail Outline/Deposition Checklist 2. Preliminary Questions §2:270 Standard Preliminary Questions §2:271 Past Deposition and Trial Testimony 3. Expert’s File §2:280 The Expert’s File Materials §2:281 Identifying the Expert’s File Materials,
Part 2 §2:282 Cross-Reference: Practice Tips From the
Products-Liability Chapter 4. Expert’s Background and Qualifications §2:290 The Expert’s CV §2:290.1 ‑Practice Tip: “What Is Your Role in This
Litigation?” §2:291 The Expert’s Preparation for the
Deposition §2:292 The Expert’s Professional Background:
Occupation and Education §2:293 The Expert’s Professional Background:
Publications §2:294 Past Testimony as an Expert §2:295 Other Work as an Expert, Including Income
From Testifying §2:296 Past Work for the Lawyer Who Is Your
Opponent §2:297 Practice Tip: The Time, Speed, Distance
Formula §2:298 Practice Tip: Challenging Black Box
Reports 5. Expert’s Work on the Case §2:310 Overview §2:311 What the Expert Is Charging §2:312 The Expert’s Preparations to Render an
Opinion §2:313 Conversations and Correspondence With
Lawyers About the Case §2:314 Conversations and Correspondence With
Others About the Case §2:315 Practice Tip: The Expert’s Knowledge and
Understanding of Case-Related Facts 6. Expert’s Report and Opinions §2:320 The Reports Prepared by the Expert §2:321 The Process by Which the Report Was
Prepared §2:322 Discovering the Expert’s Testimony:
Opinions Contained in the Report §2:323 Discovering the Expert’s Testimony:
Opinions Not Contained in the Report §2:324 The Opinions and Factual Basis for the
Opinions §2:325 Did the Plaintiff Cause or Contribute to
the Collision? §2:326 Knowledge of and Disagreements With Other
Experts §2:327 Practice Tip: Testimony From the Expert
Supporting Your Theory of the Case 7. Closing §2:340 Closing Questions VI. Depositions #4 - #6: Three More
Thumbnail Outlines §2:350 Passenger in the Vehicle of the
Driver-Defendant §2:351 Witness at the Scene of an Accident §2:352 Ambulance Driver VII. Forms Form 2:01 Complaint in a Vehicular-Liability Case
(With Reference to Form 2:02 Interrogatories in a Vehicular-Liability
Case (With Reference to Form 2:03 Requests to Produce in a Vehicular-Liability
Case (With Reference to Form 2:04 Deposition Notice for an Expert in a
Vehicular-Liability Case (With Reference to I. Elements of the Plaintiff’s
Cause of Action A. Theories of Recovery §2:01 Overview A case alleging vehicular liability is usually an action for negligence. In working up a vehicular-liability case, you will find yourself alleging, then proving, facts that fall into the familiar negligence framework: duty, breach of duty, causation, and damages. As explored further in the sections below, it is the combination of these familiar legal rules with the myriad of factual patterns that can arise in a case of vehicular liability that makes many of these cases truly unique. §2:02 The Elements of Negligence
as Applied to Vehicular-Liability Case The legal elements of a negligence action are easy to state, even if they are not always easy to apply: duty, breach of duty, causation (cause-in-fact and proximate cause), and damages. As applied to vehicular negligence, here are a few points to keep in mind:
Variances in the substantive law might arise in vehicular-liability cases involving railroads, governmental entities, or other less-than-ordinary defendants; or in cases involving uncommon legal theories. Form: See the following form at the end of this chapter and on the CD: • Form 2:01 Complaint in a
Vehicular-Liability Case (With Reference to §2:03 Practice Tip: Read Your
State’s Model Jury Instructions One of the quickest ways to determine the substantive law of your state, as well as what you will have to plead and prove at trial, is to read your state-approved jury instructions. In the section on vehicular liability, you will find a quick guide to various fact patterns that equate to negligence. The Missouri Approved Instructions, for example, contain separate instructions on failure to keep a lookout; failure to signal an intention to turn; failure to yield the right of way; following too closely; passing on the right; slowing without adequate warning; and many others. §2:04 Common Fact Patterns While the law applicable to a vehicular-liability case is often the same from case to case, this is rarely true of the facts, which can make any particular case challenging. Study the literature of vehicular liability and you’ll see entire books devoted to subjects such as the following:
As you prepare the pleadings, discovery, and deposition outlines in a vehicular-liability case, keep in mind the ways in which the unique facts of your case might alter the application of the law. §2:05 Practice Tip: Don’t
Overlook Potential Defendants In determining the proper defendants, you must always be aware of all potential sources of insurance coverage. Consider these issues:
§2:06 Practice Tip: Know the
Statutory Law of Your State In pleading the acts of negligence attributable to the defendant, most practitioners list specific statutory rules-of-the-road that were violated by the defendant’s actions. Be sure to either learn these statutory rules yourself or get a very up-to-date form book applicable to your jurisdiction. [§§2:07-2:19 Reserved] B. Typical Defenses in a
Vehicular-Liability Case §2:20 Contributory or
Comparative Negligence The most common defense to a vehicular-liability case is contributory or comparative negligence, i.e., an allegation that your client, the plaintiff, did something wrong that caused or contributed to causing the collision. As you prepare your case for trial, you should always be aware of the factual basis for such allegations against your client. This is especially true for depositions; the sample depositions in this chapter all include sections about contributory negligence. Allegations of contributory negligence can take many forms depending on the facts of your case: a failure on your client’s part to exercise due care, for example, or (in some jurisdictions) a failure to wear a seatbelt. §2:21 Other Negligence-Based
Defenses Other defenses might target the causation element of your negligence claim. The defendant might allege, for example, that your client’s injury was caused in another incident, or that it preexisted the collision. §2:22 Practice Tip: Discover and
Attack the Facts Upon Which the Defense Is Based In conducting discovery in a vehicular-liability case, you must be aware not only of the unique facts that will help you to prove your case, but also those unique facts that the other side will use to defend it. Be aware of the following fact-based defenses that a defendant might use, which is not an exhaustive list:
[§§2:23-2:29 Reserved] II. The Discovery Plan A. The Sequence and Timing of Discovery §2:30 The Initial Round of
Written Discovery Your initial round of discovery in a vehicular-liability case—including interrogatories and requests for production—will not differ significantly from a typical personal injury case. That is, you will be trying to identify witnesses and others with knowledge, learn about insurance, and find out what the defendant’s contentions will be at trial. You should serve your initial round of discovery on the defendant as soon as possible after the case is filed. Though a variant of the typical personal injury case, cases involving vehicular negligence are unique in that they involve many factual issues that do not arise in the typical personal injury case. For example, the various defenses to allegations of vehicular negligence—e.g., sudden stop, unavoidable accident, and so on—will be based upon the development of facts unique to a vehicular-negligence case. As you develop your initial round of discovery, pay careful attention to the particular facts that make your case different from the typical personal injury case. Form: See the following form at the end of this chapter and on the CD: • Form 2:02
Interrogatories in a Vehicular-Liability Case (With Reference to • Form 2:03 Requests to
Produce in a Vehicular-Liability Case (With Reference to §2:31 Caution: Never Overlook
the Importance of Insurance No matter what the source, form interrogatories in cases of vehicular negligence almost always include questions about insurance. Since the potential value of the case may be limited by the amount of available insurance, never allow a defendant to attempt to skirt its obligation to fully answer your insurance questions. §2:32 Request for Admissions Requests for admissions are an easy and efficient way to narrow the issues in your case. They will also save you the trouble of having to establish each and every material fact through formal proof. Requests for admissions are also very helpful in establishing the foundational elements you will need for admission of the proof that supports the damage elements of your case. For example, rather than obtaining testimony that a doctor’s bill was reasonable, you can send a request for admission on this issue. It often makes sense to look through your file as the case progresses, and send out requests for admissions on every disputed issue. Since there are sanctions available in many jurisdictions for failing to admit to undisputed facts, you might be surprised to find that your opponent will admit many of your requests. §2:33 Practice Tip: Inspect the
Scene Never forget to inspect the collision scene, no matter when you are retained. Here’s one benefit of scene inspection that might not have occurred to you: having a good visual understanding of the location of the collision will help you craft much more effective deposition questions. Preserve these recollections with photographs that you can use later as demonstrative aids and exhibits. §2:34 Practice Tip: Secure the
Automobile if It Is a Total Loss If you do not act quickly, the companies who have insured the vehicles involved in the accident will often dispose of the automobile quickly by selling it for scrap. You should locate it immediately and photograph it. Then attempt to preserve it if you think it will ultimately be helpful to demonstrate to the jury the severity of the collision. §2:35 Depositions When should you begin taking depositions? To keep maximum pressure on the defendants, begin the depositions as soon as possible. Generally, this will mean after the defendant has answered your initial round of discovery. A list of the type of deponents you can expect to encounter in a vehicular-liability case begins below in Section I.C: “Typical Deponents in a Vehicular-Liability Case” (§§2:60 et seq). §2:36 Written Discovery of the
Opinions of Defendant’s Experts The scope of written discovery of the opinions held by the defendant’s experts differs widely from jurisdiction to jurisdiction. In every jurisdiction, however, you should make sure to take advantage of the rules to the fullest extent. For written discovery of the opinions of the defendant’s experts generally, see §1:180. §2:37 Practice Tip: Consult With
Your Client’s Doctor A critical aspect of any personal injury case is evidence that links the injury your client suffered to the act of negligence you allege in your complaint. Most cases will require expert testimony on this point from a doctor. While a doctor with no prior connection to your client can be an expert witness, you should always start by considering your client’s treating physicians as potential resources. Establish contact with your client’s treating doctors early in the case. Set up a short meeting to introduce yourself to the doctor and inform him or her about the lawsuit. Use this meeting as an opportunity to discuss the doctor’s views on causation, keeping in mind that your conversation probably is not privileged. [§§2:38-2:49 Reserved] B. Documents and Exhibits in a
Vehicular-Liability Case §2:50 Documents and Exhibits:
Overview As is true of most personal-injury cases, the documents and exhibits in a vehicular-liability case will fall primarily into two categories: liability and damages. The damages category can be further subdivided into medical and non-medical types of documents and exhibits. Some documentary evidence will overlap these categories, and special categories will often exist that are unique to a particular case. But generally speaking, these categories will apply to most vehicular-liability cases. The following sections examine how these categories and sub-categories are populated with actual documents in a typical vehicular-liability case. §2:51 Liability Documents Liability documents will help you prove that the defendant was negligent. In a vehicular-liability case, you will encounter the following types of liability documents, among others:
As you are drafting your initial discovery, think specifically about each of these types of documents, especially if you are working from a form book. §2:52 Damage Documents As stated, damage documents will include both medical and non-medical documents. The medical documents are those that describe your client’s injuries; these documents may form the basis of an expert opinion that your client’s injuries were caused as a result of the collision. The medical documents will also include medical bills. Non-medical documents will include those that support your client’s claim for lost wages, past and future, which might be used at the depositions of the economic experts, if any. §2:53 Practice Tip: Take Your
Client to Depositions Your client has the right to be present at any of the depositions in his case. Here are some situations in which your client’s presence might help you obtain better deposition results:
[§§2:54-2:59 Reserved] C. Typical Deponents in a
Vehicular-Liability Case §2:60 Typical Deponents:
Overview The witnesses you will need to depose to prepare a vehicular-liability case for trial will always include the defendant, which is the subject of the first sample deposition. Other deponents can be divided roughly into three categories: liability witnesses, damage witnesses, and expert witnesses. The liability witnesses will include occurrence witnesses and others who might have knowledge about how the collision occurred, such as police officers or persons who were with the defendant before the collision. Damage witnesses will include doctors and other medical professionals. There is more about these two categories of witnesses, as well as experts, in the sections that follow. §2:61 Occurrence Witnesses Occurrence witnesses who witnessed the collision or came upon the scene shortly before or after will be of great importance to the liability aspect of your case as you prepare for trial. These witnesses may have seen what happened or may have overheard statements by the parties. Occurrence witnesses can often be approached informally to be interviewed about what they know. If testimony or an occurrence witness is not helpful enough to preserve in a deposition, or if it can be preserved in other ways, then the witness may not have to be deposed. For more on this point, see the next section. §2:62 Practice Tip: Learn to Do
Informal Discovery Informal discovery is a skill at which criminal lawyers are often very competent, since criminal cases do not usually involve depositions. Criminal lawyers or their investigators often have no choice but to call witnesses on the telephone, and then try to overcome the witness’s initial reluctance to cooperate. When it’s done right, informal discovery has these benefits:
For many reasons, of course, informal discovery is often impractical or impossible, which is why you’ll always need to be honing your deposition skills. But in those situations in which it might work, don’t neglect the techniques of informal discovery. §2:63 Medical Witnesses Vehicular-liability cases will generally involve medical witnesses who will help you prove (a) that the injuries were suffered as a result of the incident upon which the case is based (i.e., causation) and (b) that the injuries resulted in a claim for medical costs, pain and suffering, disability, loss of income, etc. (i.e., damages). The medical witnesses may be treating doctors, chiropractors, physical therapists, or the like. If you know in advance that a particular witness will not be available for trial, you will need to take a deposition specifically for the purpose of presenting it later to a jury. An example of a trial-preservation deposition of a treating doctor can be found in Ch. 3, Premises Liability (see Deposition #2: Plaintiff’s Treating Physician for Use at Trial). §2:64 Other Witnesses Regarding
Damages To support your claims for damages, you might use non-medical witnesses such as co-workers and friends who can testify about how the plaintiff was changed as a result of the injuries. Typically, you will not need to depose such friendly witnesses yourself, except to preserve their testimony for trial. It is more likely that your opponent will depose these witnesses, and that you will be in the position of defending the deposition. §2:65 Practice Tip: Abstract
Depositions as You Go Abstracting depositions as soon as you receive the transcript is an easy way to avoid the time crunch that comes in the final weeks before trial. An additional benefit is that you can use the deposition abstracts to prepare for later depositions, rather than having to review a stack of transcripts. Here’s another tip. Rather than arranging the abstracts as a page-by-page synopsis of the testimony, try abstracting the deposition by topic or issue. In an auto case, you might organize the testimony with headings such as distance, speed, headlights, and injury. Then copy-and-paste the witness’s most important deposition testimony to the issue outline with a page citation. §2:66 Defendant’s Expert
Witnesses The types of experts the defendant is likely to employ will be determined largely by three factors: (a) the nature of the case and the issues in dispute, (b) the amount of damages at stake, and (c) the type of experts you employ. In a vehicular-liability case, it is common for a defendant to use an accident-reconstruction expert. A sample deposition of an accident-reconstruction expert can be found later in the chapter. On the damage side of the case, the defendant might employ economists, vocational rehabilitation experts, and life care planners. Even in a case in which the potential damages are limited, the defense will probably hire a medical expert who will testify that the plaintiff’s injury was not caused by the defendant’s negligence, although this testimony is sometimes presented by a treating physician. Form: See the following form at the end of this chapter and on the CD: • Form 2:04 Deposition Notice for an Expert in a Vehicular-Liability Case (continued in pamphlet)
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