Depositions In Automobile Negligence Cases

This article will attempt to cover the fundamentals of preparing for and defending your client’s deposition and taking the tortfeasor’s¹ deposition in an automobile negligence case. It is not intended to cover every possible topic that could reasonably be covered at such preparation sessions or depositions. Further, it is intended only to provide information specific to automobile negligence cases. That said, let’s begin with a supposition: Trials should be about a search for the truth. Unfortunately, since jurors can neither read minds, nor summon videos depicting the true nature of the areas of contention in a case, trials are really about the jurors’ impression of the truth regarding the key areas of dispute.

I. Defending your client

In light of the above supposition, it is essential, whenever ethically possible, to try to eliminate potential innocent inaccuracies² in our clients’ testimony that, when fused together in a capable defense attorney’s closing argument, can result in an unjust defense or diminished verdict.

1. At or shortly after the initial intake meeting:
   1. Ask your client to prepare an open-ended letter to you marked “Confidential Attorney-Client Communication.” Have the client make entries in the letter regarding his human losses³ that can be used to refresh his recollection during a deposition preparation session. [Note: We generally ask this only of our more diligent clients.]
   2. Explain that to a defense attorney, the words “I feel better” mean 100% better (explain this again during the deposition preparation session).
   3. Also at this meeting, instruct your client not to give any recorded statements (unless required by his insurance policy). Why allow him to create another record that could contain innocent contradictions?
   4. Obtain photos of vehicles and injuries (unless they would weaken your case), and photos (images) of the scene of collision.
   5. Is a lost wage claim likely? Make sure the client knows that it will need to jibe with his tax returns, disability slips, and medical appointments.
   6. Discuss potential pitfalls of social networking sites or blogging about the collision.
2. Before meeting with your client to prep:
   1. Ideally, review all relevant case-related documents before the prep session. At a minimum, review them with or in front of the client at the preparation session.
   2. Review the law that applies to the collision (e.g., the boulevard rule).
   3. If you even vaguely suspect your client of having past claims, run an ISO claims search.⁴ Similarly, if you suspect a criminal history, run the client through a database, such as Accurint or the free Maryland Judiciary Case Search website⁵, that might reveal it.
   4. Get any intake sheets or questionnaires your client may have completed for each heath care provider he saw as a result of the collision.
   5. If there are any prior injuries to the same body parts injured in the subject collision, get all of the medical reports that relate to them. Without these records, you cannot know whether you will be asserting an aggravation of a pre-existing condition or a new injury.
   6. Review any hospital records for evidence of alcohol (ETOH) consumption, or drug abuse, or both.
   7. Read the client’s medical records to search for problem areas (e.g., internal inconsistencies, inconsistencies with other records, entries that require context or explanations). If you don’t have time to do this, review these records with the client during prep session.
   8. Google your client. Does your client have a page on Facebook or MySpace? Does he Tweet or blog? Does he use any social networking sites? Find out. Find out if the tortfeasor or any witnesses in the case use social media.
   9. If your client is likely to review them, provide him with a copy of his answers to interrogatories and medical records.
3. Preparation session – generally
   1. Work hard to gain the client’s trust. Tell the client stories about past clients whose cases have gone poorly because they were not forthcoming about prior injuries, criminal convictions, prior claims, etc. Explain how the attorney-client privilege works. Explain how you can deal with almost anything that you learn about in advance. This method allows you to get your message across without insulting your client.
   2. Review whether your client has spoken to anyone about the case.
   3. Explain that it is okay for your client to reveal that he met with you, but not to divulge any words that were spoken at the meeting.
   4. If the case warrants it, consider multiple preparation sessions or videotaping your client, or both. While it may be impractical, some excellent lawyers advocate having a different lawyer cross-examine your client during the prep session.
   5. Explain to the client that, if during the deposition, I don’t instruct you not to answer a certain question, it should be answered in the manner we discussed. Tell your client not to argue with opposing counsel or ask of her: “Why do you need to know that?”
   6. Review all discovery responses.
   7. Try to find out in advance of the deposition if opposing counsel can be expected to act like a bully.⁶ If so, warn your client about this and explain that if this occurs you will mix it up with the other lawyer to make it clear that this won’t be tolerated. In short, your client needs to know you have his back. Remind him that a calm demeanor is the best defense, to simply focus on the question and answer he will give, and to ignore the tone with which the questions are asked.
   8. Does the client have a criminal history? Research whether it will be admissible. What has the client been doing since he was convicted? How has the client changed his life since that time? You will need answers to these questions to discern how to present him in the most favorable light.
4. Preparation session regarding liability issues
   1. Review how the collision happened in as much detail as possible.
   2. Explain the difference between a well thought out estimate and a guess (e.g., consider the response to “How much time passed between the time you first saw the tortfeasor’s vehicle and the point of impact?”). Review estimates of time, distance, dates, speed or any other potentially relevant measurement.
   3. Explain that an estimate should be expressed as an approximation or a range unless the client is certain of a precise figure.
   4. Cross-examine your client during the prep session to test the limits of his knowledge regarding time, speed and distance.
   5. Show how counsel can whittle down an answer (e.g., “Were you waiting at the light for more than a minute? More than 30 seconds? More than…?”).
   6. Review the concept of time. I have had many clients claim in preparation sessions they were stopped at a light for more than double the time it would take for the entire traffic signal sequence to complete one rotation. They weren’t lying, just guessing.
   7. Eyes. Review where the client was looking at all key junctures. How did the client look? (For example, in an intersection case, did he look left-right-left, right-left-right, or some other way?) Any key landmarks? Any obstructions to vision?
   8. Hands. What was the client doing with them leading up to the impact.
   9. Vehicle. If the client was driving, was he experienced with it? With the road/route he was taking? Any mechanical problems? Passengers? Where were they sitting?
   10. Timing. Was the client running late? Was there an estimated time of arrival? If so, review timing of start of trip, time of collision, and ETA so that the client does not unwittingly give the defense the impression that she was rushing if in fact she was not doing so.
   11. Route. Was the client familiar with it? How? Where coming from? Where going to? Make any stops along the way? Were any planned? Why?
   12. Road before collision. Discuss traffic conditions, visibility, traffic control devices, lanes, directions of travel, markings in roadway.
   13. Road after collision. Skid marks, positions of vehicles in road before the collision, at impact, and at rest thereafter. Any liquids or debris in the road post-impact.
   14. Consider diagrams. Will you want your client to draw one at trial? If so, practice before the deposition until the drawing is as accurate as possible. If your client cannot create an accurate depiction of the scene and is asked to do so at his deposition, you should object and instruct him not to do so. On the other hand, if you want him to be able to draw at trial, you had better allow him to do so at his deposition.
   15. Consider distractions. Was the client using a cell phone, PDA, radio, mp3 player, iPod, GPS system? Was he looking for or at something inside the vehicle just before the collision? Had his cell phone just rung?
   16. Corrective lenses. Does the client wear them? If so, for reading or distance? Were they on at the time of the collision. Was his or her prescription current? Is his license restricted in any fashion?
   17. Speed. Is it an issue? If so, what was the speed limit? Can the client estimate the speed of the tortfeasor’s vehicle? If so, explore the basis of this estimate (How long did he observe it before impact? Any obstructions to vision? How long has the client been a driver?). You don’t want to destroy your client’s credibility by having him offer a meritless lay witness opinion. Can the client credibly testify regarding his own speed? Explore his basis here too.
   18. Rear-end collisions generally. Ask: “How did you apply the brakes (gently, normally, slammed, etc.)? Why? How much time passed between application of brakes and impact? Were your brake lights working? How do you know?”
   19. Rear-end collision — at impact the client was stopped. If the client will testify that his car moved forward as a result of the impact, how far did it move? Did his vehicle leave skid marks left at the scene? If he will testify that there were none, did the impact temporarily jar his foot off of the brake?
   20. Rear-end chain reaction collisions. If you represent the first vehicle in the line: “How many impacts did you feel? How much time between each impact?” If more than one, review the sequence of impacts.
   21. Intersection collisions with traffic light.
       1. Did the client and tortfeasor enter the intersection from a stopped or moving position? Which vehicle entered first?
       2. Traffic light. What was its sequence (try to discover this from first-hand observation or through the appropriate local government agency before the prep session)? What color was the light for each participant in the collision before he or she entered the intersection? How far away was he when he first looked at the light? When he next looked at the light? When he last looked at the light (if he looked at it a third time)? Compare your client’s perception of the light sequence with what your research reveals.
   22. Lane change collisions. If the client changed lanes, did he turn his head to look before doing so? Did he check his mirrors? If so: Which one(s)? How many times? In what sequence?
   23. Stick (manual/manumatic/tiptronic) v. automatic. If not an automatic, explore what gear your client was in at all critical junctures, and why.
   24. Last clear chance. If this doctrine is on your radar, you’ve undoubtedly taken a tough case. Recall that Maryland requires a fresh opportunity for the tortfeasor to avoid the bad event whereas the District does not. Compare MPJI-Cv 19:14 with D.C. Std. Civ. Jury Instr. No. 5-18.
   25. Evasive actions. Did the client take any? Why/why not?
   26. Position of vehicles at impact and rest.
   27. Tricks or trick questions (the first two are auto tort specific, while the next three are not, they are worth mentioning).
       1. [From defense counsel] “The impact came as a shock to you? So you weren’t thinking clearly when you…?”
       2. [From defense counsel] “How far were you into the intersection when you looked at traffic.”
       3. Remind your client not to let opposing counsel move on if he hasn’t finished his answer.
       4. Remind your client to beware of questions that begin with “Is it possible that…?” as the lawyer may be trying to him into answering a question when he doesn’t have all the facts. Tell your client that if he doesn’t know, he should say so. He should also beware of characterizing something as impossible.
       5. Remind your client not to let opposing counsel get away with questions that seem to summarize his testimony, but omit facts or portions of it. Assure your client that you will object to these questions.
   28. All conversations at the scene whether the client was a direct participant or merely overheard them.
5. Preparation session regarding damages issues
   1. “Any part of your body strike any part of the inside of the vehicle?” Remind the client that the headrest is part of the inside of the vehicle. Anything loose inside the vehicle knocked about (e.g., change, discs, mp3 player, purse contents, change, mobile phone)?”
   2. Impact. “Describe its sound and feel. Where did it take place on each involved vehicle? Review any photos and whether they are “fair and accurate depictions.”⁷
   3. Pain. “When did you first feel it?” Ask your client to describe it. Discuss the progression of pain from impact to present. Discuss the language of pain. Pain can be described in terms of frequency (constant v. intermittent); area (localized v. radiating); and intensity (shooting, stabbing, massive, horrendous, excruciating, stiff, aching, throbbing, numb, burning, pulsating, sharp, dull, sore, or nagging). Pain can also be expressed on a 0 (no pain) -10 (worst ever) scale. Further, it can be expressed as a percentage of improvement (e.g., “I am 90% better than when I was at my worst”). Two caveats: First, advise your client to testify at all times using words with which he is comfortable. Lastly, the point is not to exaggerate or misrepresent your client’s condition, but to assist him in expressing the pain he endured.
   4. Police. If they didn’t come to the scene. Prepare the client for “Why didn’t you call the police to the scene?”
   5. Injuries. Discuss, and compare the client’s current memory with how they are referenced in the records.
   6. Gaps. Discuss any significant gaps in treatment. Can the client explain them? Remind him of holidays or other events that may have caused gaps.
   7. Appointments. Discuss any missed, cancelled or rescheduled appointments (look for these in the records and medical bills). Find out if, for example, the client needed to work overtime at work or couldn’t get coverage for work or arrange for child care.
   8. Explore any discrepancies regarding the health care provider’s (HCP) recitation of the event and the client’s current telling of it? Sometimes clients will describe having felt a big impact despite there being little visible property damage to the involved vehicles. This will sometimes be wrongly interpreted by a HCP and then recorded in the medical records as a “high speed impact.” I recently had this issue arise in a case that was arbitrated. Fortunately, the arbitrator understood how my client’s testimony could jibe with the medical records and evidence of property damage. I’m not sure that a jury would have reached a similar understanding.
   9. X-rays. If there are repeat x-rays in the medical records (i.e., both the hospital and orthopedic surgeon took x-rays of the same part of the body), this is best addressed by the HCP who ordered them. Nonetheless, your client should be aware that he may be asked about this.
   10. Physical Therapy (PT). If the client underwent PT, discuss span of treatment, number of visits, and utility (if it didn’t help the client recover, the jury may not provide money for it in its verdict). What modalities were used? Were any of them painful? If so, you might want to have your expert explain why this was the case. Review PT and other health care bills generally, so the client does not express shock at the amounts at the deposition.
   11. Injections and testing. Did the client undergo any for treatment purposes? Were they painful? Was an MRI or CT scan ordered? What was the procedure like?
   12. Percentage of improvement. Discuss the percentage that the client’s injuries have improved at a variety of time intervals (e.g., 1 month after the collision, 6 months after it, presently). Similarly, discuss the client’s self-assessed pain rating (0-10 scale) at a variety of time intervals. Often, these ratings will appear in the medical records.
   13. Vacations. Did the client cancel or not schedule one because of the collision? If the client went on a previously scheduled vacation, was his enjoyment of the vacation affected by the collision?
   14. Loss of Consortium. If alleged, explain what it means and how invasive, graphic, and uncomfortable the deposition may become.
   15. Change in activities. Explore whether there were things that the client normally did that he was unable to do for a period of time after the collision. Similarly, explore whether there were things that the client couldn’t do as long or as well after the collision. Also, explore whether these issues have resolved or not.⁸ In order to assist your client in talking about such things, break them down into more digestible pieces, for example:
       1. work related activities
       2. activities related to the home
       3. exercise/sports
       4. hobbies
       5. ability to get a good night sleep
       6. favorite things
       7. interactions with children or grandchildren
       8. moodiness
   16. There is a sweet spot for testimony regarding human losses. Help your client find it. Exaggeration kills personal injury cases. Whining and underreporting diminish them. If your client can tell a story about how the collision has affected him, it can be very persuasive. Help your client find the sweet spot.
   17. Lost Wages. Why did you miss work? Did a health care provider write a disability slip? What did your job involve physically? Why couldn’t you do it? Was light duty available? How did you know? Why couldn’t you do it? Dates & times missed? Salary or wage rate at that time?
   18. Lawyer referrals to the doctor. Initially, you will have to determine whether to object and instruct your client not to answer based on the attorney-client privilege.⁹ If you have decided to allow your client to testify regarding same find out if your client had a regular physician? If he went to the hospital as a result of the collision, did he try to contact the physician referenced in any discharge instructions? Why not? Did the client have health insurance?¹⁰ If not, and he needed a doctor who would wait until the end of the case for payment, this could explain the lawyer referral.
   19. Transportation. Did you drive yourself from the scene? Go by ambulance? Was the client driven to heath care appointments or did he drive himself?
   20. Muscle spasms. If the medical records reference them, make sure the client understands what they are so that he doesn’t mistakenly contradict the records regarding this point.
   21. Past medical history.
       1. Explain that a mistake here could lead jurors to think that the client was trying to hide something.
       2. Ever claim a permanent injury to same body parts injured in this case before or after the collision?
       3. Ever complain of pain in the same area? If so, are current symptoms any different?
       4. Ever hospitalized overnight?
       5. Prior personal injury cases. Facts. Severity of impact. Injuries. Treatment. Length of treatment.
       6. Prior workers’ compensation claims? Slip and falls?
   22. Gym memberships. If your client had one at the time of the collision, did he put it on hold? When, if at all, did he return to the gym? Was the membership put on hold? Has he resumed full activities at the gym?
   23. Language usage. Discuss the importance of words. Explain (1) that to a defense attorney (and perhaps to a jury), the words “I feel better” mean 100% better; (2) the difference between “accident,” “collision,” and “crash;” and (3) that “whiplash” has negative connotations.
   24. Surgery: Is it recommended? If so, is it scheduled? Does your client intend to have it? If it’s taken place, was it helpful? Painful? Describe the rehabilitation process.
   25. Prepare the client to respond to questions about what “before and after” witnesses listed in answers to interrogatories or witness lists will testify to. Prepare to object if these questions ask your client to be a mind reader.
   26. Potential Problems. Criminal Record. Bad driving record. Past or later injuries.
6. Defending the deposition
   1. Diagrams. Don’t allow the client to draw them if he hasn’t practiced doing so and you have not become convinced that he can do so accurately. (Caveat: Keep in mind that if you take this position at deposition, the judge may not, over objection, allow your client to draw a diagram at trial.) Do allow your client to comment on the accuracy of a diagram drawn by defense counsel.
   2. Don’t tolerate opposing counsel’s bad behavior. It bears repeating: your client needs to know that you have his back.
   3. If your client is providing information that is non-responsive, don’t be afraid — while the deposition is in progress — to firmly tell your client: “Focus on the question Ms. Defense Counsel has asked.”
   4. Don’t instruct your client not to answer unless it is necessary to preserve a privilege, to enforce a limitation directed by the court, to present certain motions, or to memorialize that your client is being harassed.¹¹
   5. Objections. Be mindful of the rules and guidelines concerning them. See fn. 6, but do object where appropriate.

II. Deposing the tortfeasor¹²

1. Preparation
   1. Review the file materials relating to the collision, including but not limited to, any police reports, photographs of the scene, intake sheets, and witness statements.
   2. If liability is at issue, use Google Maps satellite street view or Bing bird’s eye view to examine the scene of the collision. If you think it is sufficient you may not need to go to the scene yourself. (I once tried to personally visit the scene of every contested liability auto tort case I handled; with the advent of Google Maps, I no longer think this is necessary in all cases.) However you do it, make sure you understand the dynamics of the collision in relation to the scene.
   3. Google the tortfeasor. Consider running him through Accurint or another database.
2. Goals: It should be obvious that, while deposing the tortfeasor, you will attempt to nail down key facts for trial. In addition, you want to mitigate potential harmful testimony or, at least learn about it so that you can find out before trial whether there is a reasonable explanation for the tortfeasor’s harmful allegations. Of course, anything admissible you can unearth to show that the tortfeasor was not a good driver or isn’t truthful will also help.
3. Liability Related Topics
   1. Consider what “Rules of the Road” apply to your case and ask the tortfeasor questions related to them.¹³
   2. Driving Experience
      1. How long has he had a license? In what jurisdiction? Has it ever been suspended or revoked (this could lead to evidence of a mental or physical defect)? Any restrictions on it? Does he have handicapped plates? If so, what is his disability? I also like to make the tortfeasor produce license at deposition to confirm.
      2. Extent of experience vehicle involved in collision? Did he own it? If not, did he have permission to drive it?
      3. Stick v. automatic. If driving a stick, find out how long he has been driving stick.
   3. Ask about driving purpose. Establish the time of the collision. Then find out if the tortfeasor was going to work or any place involving a specific time he was expected to arrive? Was the tortfeasor rushing?
   4. Ask about route. How well did he know it? If he didn’t know it, was he working from written directions, a GPS, a map, a live phone call? Was he or she due at the final destination at a particular time? If so, why? Any consequences for being late?
   5. Explore potential distractions.
      1. Did he have passengers? Where were they seated? What were they doing? Was any music playing? If so, what music? How loudly?
      2. Were there any roadside distractions (e.g., other collisions, people on the side of the road, dogs or other animals loose near the road)?
      3. Cell phone use? Movie playing? GPS chirping? Ask about electronic device use, including but not limited to, cell phone (texting, phoning, web surfing, emailing, instant messaging, etc.), PDA, GPS, radio, CD and DVD use. If your client insists that she saw the tortfeasor using a cell phone before impact or you get a denial that seems suspicious, ask the tortfeasor for all of his cell phone numbers and carriers. Also ask if he will sign an authorization so you can get the records limited to the day of the collision. If he had a passenger whose cell phone he may have been using, depose that person and request the same information.
   6. Had he ingested any drugs (recreational or prescription) or alcohol during the 24 hours leading up to the collision. If so, what was ingested, why was it ingested, when was it ingested, and in what dosage? If prescription drug(s), ask about the doctor who wrote the prescription and the pharmacy that filled it.
   7. Traffic. What was it like? Were there other cars in the vicinity just before impact? Where were they located in relation to his vehicle, to your client’s vehicle?
   8. Eyes. Where was the tortfeasor looking at various intervals leading up to the collision?
   9. The scene.
      1. Number of lanes in each direction (if more than one)?
      2. Lines in road?
      3. Signs, signals, traffic control devices?
      4. Sight lines? Obstructions to vision?
      5. Road flat or curved? Uphill or downhill?
      6. Composition of road?
      7. Weather. Sunny or overcast? Hot or cold? Precipitation?
      8. Direction of travel of all involved vehicles?
      9. Any lane changes leading up the point of impact? Describe. Why?
      10. Last time you went to the scene? Any changes since the collision?
   10. The collision.
       1. Get his version of it in minute detail.
       2. Break the collision down frame by frame and confirm each detail.
       3. Nail down relevant times and distances.
       4. Link events to roadway positions.
       5. Speed. Before and at the time of the impact. All involved vehicles.
       6. Awareness. Find out when he first became aware the collision was going to take place? What caused this awareness? Location of involved vehicles at that time. Speed.
       7. Evasive action. Any taken? If so, what? If not, why not?
   11. Rear-End Collision Specific
       1. Was vehicle in front moving, starting, slowing, or stopped? If stopped, for how long?
       2. Were its brake lights on? Turn signal?
       3. The front of your vehicle struck the back of my client’s vehicle.
       4. At the time of the collision there were no obstructions to your vision.
       5. You were traveling at a speed that would not allow you to stop before hitting my client’s vehicle in the rear.
       6. You did not apply your brakes in enough time to avoid hitting my client’s vehicle in the rear.
       7. It didn’t back into you? It didn’t role backwards? If he denies either of these points, find out how far backwards he alleges your client’s vehicle moved? Did he ask your client why this happened? Confirm the distance from the tortfeasor’s front bumper to your client’s rear bumper when he first noticed your client’s vehicle and at all key intervals until impact.
       8. Did it appear to you that there was a reason for it to be stopped?
       9. How long had you been following it (ask about time and distance)?
       10. What kind of distance had you been maintaining?
       11. Did you honk before impact? Why/why not?
       12. Did you consider that the [vehicle in front] might have to stop in the normal course of driving?
       13. You were travelling too fast for the conditions and struck the rear of Plaintiff’s vehicle.
   12. Intersection collision specific
       1. Vehicles to left or right.
       2. Vehicles in front.
       3. Was his vehicle the first/last vehicle coming from your direction – or in your lane – into the intersection once you had the green light.
       4. Discuss the arc of his turn or movement into the intersection.
       5. Where was he in that arc at the point:
          1. He first saw the client’s vehicle.
          2. Of impact.
       6. What percentage of his vehicle was in the actual intersection at impact.
       7. Was his turn signal on?
       8. Mirrors. What mirrors did his vehicle have? Did he check any of them before making his turn? If so, which ones? What did he see when he checked them?
       9. Did you know in advance that you wanted to turn onto ~ road? How did you know this?
       10. In your opinion, who had the right-of-way? Why?¹⁴
   13. Point of Impact. In relation to: curb lines, lane lines, shoulders, center of intersection, etc.
   14. Area of contact on all involved vehicles. Which vehicle struck which.
   15. Post-collision events. Resting position of involved vehicles.
   16. All conversations at scene (whether he participated in or merely overheard them). If the client will testify that he accused the tortfeasor of shoddy driving, see if the tortfeasor will confirm this. Ask him how he responded. Also: was the client rude, mean, threatening?
   17. Post-scene conversations. Cover all other than those with counsel.
   18. Roadway post-collision.
       1. Skid marks. Length, width, from which vehicle.
       2. Fluid in road. Source.
       3. Debris in road. Source.
       4. Pavement gouges.
       5. Damage to property (e.g., sign posts, trees, bushes).
   19. Photos/Images. Find out if they fairly and accurately depict…
   20. Language. If it’s a big impact, see if you can get him to call it a “crash.” If so, casually loop the word “crash” into other questions.
   21. Witnesses.
       1. Names, addresses, phone numbers.
       2. When did you learn of the witness?
       3. How was the witness found?
       4. What is his understanding of what the witness saw? Where was the witness standing in relation to ~ ?
       5. Any relationship to the witness?
       6. Any post-scene discussions with the witness? Why? What was said by each person involved?
   22. Investigators. Did any come to the scene? Identify. If so, what did each do?
   23. Police. Did he call them? Did he get a ticket? How did he deal with it?
   24. Take any drugs (over the counter, prescription, or illicit¹⁵), medications, or drink any alcohol in the 24 hours before the collision.
   25. Criminal charges/traffic tickets
       1. Nature of same
       2. Ignore/Pay through mail/Appear in Court (if so, how did he plead?)
   26. Criminal History.¹⁶
4. Causation and Damages Related Topics
   1. Ask about the sound and force of the impact,
   2. Property Damage
      1. Describe.
      2. Repaired (if so, at what price) or unrepaired?
      3. Structural?
      4. How long did the repairs take?
      5. If you have an image showing visible property damage to the torteasor’s vehicle, ask whether any of the damage pre-dated the collision (you don’t want to hear this for the first time during cross-examination at trial).
   3. Ask whether the collision made the tortfeasor sore. Any injuries? If so, to what body parts? If so, did he seek medical care. Did he take anything for them? How long did they last? Ordinarily, this will be irrelevant at trial, but if the tortfeasor opens the door during direct examination (or if defense counsel argues that the impact was insufficient to cause injury), you’ll want to be sure that an affirmative answer (or impeachment) will be forthcoming if you cross-examine on these issues. Additionally, if the tortfeasor sought medical care, his medical records could assist with proving liability if they show that he described the collision differently to his health care providers than he did in his answers to interrogatories.
   4. Appearance of the client. Ask about any post-collision observations of your client. Was your client conscious? If so, was he mobile?…in shock? Did the client appear to be in pain? How could he tell? If they communicated, was the client nice?
   5. Conversations. Cover all conversations that he participated in or overheard. If he tells you what your client said, establish whether he is quoting or paraphrasing. Was your client surly, neutral, or pleasant?
5. Generally

   Do what good defense attorneys do with our clients: Give the tortfeasor an opportunity to lie or exaggerate to you. If the tortfeasor takes a position that you can prove is absurd or patently false, push them as far as you can out onto that limb.

1 I use “tortfeasor” because he or she will not always be a defendant.
2 If the inaccuracies are not innocent, then your client may well get what he deserves.
3 See David Ball on Damages, 2nd Ed.
4 See https://claimsearch.iso.com/
5 http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp
6 The MAJ Listserv is a great resource for vetting opposing counsel.
7 In other words, regardless of whether the images are helpful or harmful, you want to know whether your client’s testimony will get them in evidence.
8 If your client testifies that he has not returned to doing certain pre-collision activities, you can bet that defense counsel will ask him if he has tried those activities since the collision. If your client answers in the negative, the next question will be: “Well how do you know you can’t [insert activity]?”
9 If so, consider filing a Motion in Limine to preclude counsel from asking about this at trial.
10 Ordinarily, as a collateral course, this would not be admissible at trial unless client opens the door.
11 For more information on this topic, see The Multi-Jurisdictional Practitioner Looks at Depositions in the District of Columbia, Maryland and Virginia, DC Trial, Volume IX, No. 4 (Fall 2009).
12 At the risk of stating the obvious, many of the topics listed for client preparation can also be turned into questions for the tortfeasor’s deposition.
13 See Pat Malone’s and Rick Friedman’s essential reading for Plaintiff’s lawyers: Rules of the Road, 2nd Ed.
14 You might be able to prove that he acted or failed to act based on a misunderstanding of the rules of the road.
15 I’ve yet to have a deponent admit to being, at the time of the collision, under the influence of an illegal drug or substance. It’s still worth asking.
16 Knowing the law in your jurisdiction regarding the admissibility of prior crimes evidence can assist you in formulating your questions on this topic. See Md. Rule 5-609 (2010); D.C. Code § 14-305.