De Novo, a new legal weblog, is hosting an online symposium about legal education. My contribution, "Complications Mar The Law School Birthing Process," is here. Be sure not to miss the other fine contributions.
No doubt, you gave your client strict instructions during your deposition preparations: Answer only the question that's asked; don't volunteer information; after you've answered the question, stop; if no one is talking, keep your mouth shut, etc.
So what do you do if your client, despite your preparations, turns out to be a non-stop talker? Repeat after me: You're a lawyer, not a potted plant. Speak up. Sure, it's the other guy's deposition, but if your client isn't following your directions, it's time for some reminders, such as:
Just before a deposition the other week, my client told me he feared that the other side would bring an outsider, tangentially connected with the opposing party, to the deposition as an observer. According to my client, I couldn’t allow this. If I did, the deposition “could turn into a brawl.”
Well, the customer is always right. Although this sort of thing comes up in my practice from time to time, I had never gotten to the point of finding out whether the rules would allow me to exclude a non-party observer from a deposition. This time I looked it up, but found nothing. My plan was to ask the other lawyer to keep the observer away. If he didn’t agree, I’d postpone the deposition so that I could file a motion for a protective order. (Brawls being a bad thing at depositions, in my opinion.)
In my last post, I explained why I believe plaintiffs' lawyers should always meet with a treating physician privately before a deposition begins. I said it surprises me when lawyers don't take advantage of this opportunity. Just as surprising is the fact that some defense lawyers don't ask about the meeting during the deposition.
It's true most doctors don't go out of their way to help you when you pry into the details of their conversations with the plaintiff's lawyer. But you should be able to elicit a list of topics the two talked about, which will give you some insight into the issues the plaintiff's lawyer thinks are most important--or about which he thinks he is most vulnerable.
For the plaintiff's lawyer, a lot of the work required for the deposition of a treating physician takes place just before the deposition begins. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. Even before routine depositions, you should call ahead and say you'll need ten minutes with the doctor. Then prove to him what a nice guy (or gal) you are. If the other side noticed the deposition, tell him the deposition was the other side's idea. Make sure he knows how to get paid for his time. Tell him you hope the deposition won't take very long, but you can't control what the other side will do.
I got a chuckle reading Jim Dedman's post about a forward-looking decision from 1897 that predicted the use of technologically-advanced demonstrative evidence years before it happened. Read the post (and pay attention to the quotation from the poet Horace, who doesn't make guest appearances in judicial opinions too much anymore).
[T]he Seventh Circuit Court of Appeals has reversed the district court's Daubert-based exclusion of testimony from a civil engineering and human factors expert who contended that Cook County failed to maintain a road appropriately and that such failure caused the accident at issue in the litigation underlying the malpractice case. Although the Seventh Circuit remanded the Daubert issue for the district court to resolve, the Court criticized the district court's failure to explain how it applied the Daubert factors to exclude the expert's testimony and strongly intimated that the testimony was well-defended and should be admissible.
For the case, follow the link to Houston's Clear Thinkers.
A recent decision from the First District contains some paragraphs you may want to pull out for your next summary judgment brief:
Summary judgment is proper if, and only if, the pleadings, depositions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822, 791 N.E.2d 1261, 1265 (2003). In determining whether a genuine issue of material fact exists, a court must construe the pleadings, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Prowell, 339 Ill. App. 3d at 822, 791 N.E.2d at 1265.
The purpose of summary judgment is not to try a question of fact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993). A triable issue precluding summary judgment exists where the material facts are disputed or, where the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792. Summary judgment should only be allowed when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.
SeeEliot v. Williams, No. 98-L-2919 (March 3, 2004). In Eliot, the court reversed a decision by the trial court granting summary judgment for the defendant; the court held there was a genuine issue of fact as to whether the defendant's hiring of a person without doing a background check "was a legal cause, as well as the cause in fact, of the plaintiff's injuries" when the new employee later assaulted the plaintiff.
The opinion also contains an interesting discussion of "proximate cause" and "intervening cause" and which are summary judgment issues. There may be more than one proximate cause for an injury, but "[a] defendant may be held liable even if his negligence is not the sole proximate cause of the plaintiff's injuries, so long as his conduct contributed in whole or in part to the injury." Proximate cause is normally a jury issue, unless "reasonable men" would be unable to reach different conclusions about undisputed facts.
Despite having been free from the burdens of law school for many years, I still like to return every so often to the St. Louis University School of Law to browse the library stacks, particularly the section dealing with litigation. It was this list of books in the trial advocacy section at Penn State's Dickinson School of Law that made me think it's about time to head back to SLU. Last time I was there, I discovered a regularly-updated publication of settlements from around the country. It'll be the first book I look at during my next visit.
Texas Attorney Howard Nations presents a very comprehensive overview of the settlement process, with tips for both plaintiff and defense, in "Persuasion in Settlement Negotiations," available from his firm's website.