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Depo Prep Made Easy:
7 steps to effective deposition preparation
By Marjory Harris, Esq.
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How we used
to do it – the hard
way
I started practicing law in the pre-computer era. Post-its had
not come upon the scene. I do not recall if we had yellow markers
then. Preparing for trial or deposition always involved taking out
a fresh yellow pad, some colored pens, and some little pieces of
paper to stick in files (replaced some years later by Post-its).
Just as my boss and countless other attorneys did, I reviewed the
entire file, making notes, sticking little pieces of paper into the
file to mark important pages, copying out passages from law books,
jotting notes as ideas came to mind. I was warned against marking
up our evidence, so I always made a photocopy first and then marked
on my copies what I considered to be important passages, with notes
scribbled nearby.
I then took the masses of pages of notes and amalgamated
them into a summary of questions to ask at deposition or trial, with
legal justification should I be questioned about my contentions.
If you are still preparing for depositions in this manner (or worse,
not preparing in any organized way), the following suggestions should
make depo prep easier and faster. The same suggestions will help
you prepare for trial.
Caveat: Before you begin, articulate why you
are taking the depo. What do you hope to establish? If you are preparing
a response to a depo set by an opponent, consider how you can use
the occasion not just to preserve what you already have, but to increase
it. If your opponent is hoping to increase apportionment, you
should be trying to decrease it. While you are there, ask the doctor
really specific questions about future medical treatment. When the
doctor’s report mentioned that the applicant may need surgery
in the future, get on the record exactly what types of surgery might
be contemplated, the risks of infection, etc.
Too often attorneys
go into battle based on a knee-jerk reaction (“I don’t
like this report”) without considering the consequences. Asking
oneself if this is a good strategy and how it might backfire is a
necessary step to effective deposition preparation.
If you cannot
come up with a good written reason to do a depo, consider a written
request for a supplemental report. Sometimes while I am preparing
such a letter, I realize I need to do a deposition. Sometimes I wait
to see what response I get. With a deposition there are certain dangers,
such as incomplete or murky answers, obfuscation of what was previously
clear, the chance for the other side to mess up your case while you
are trying to get something more. Also, judges prefer to read actual
medical reports, in my experience, rather than depo transcripts.
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1. First, use your computer.
It is
much faster to organize what you have written, to copy and paste
from existing files, to save your work so that you do not have to
reinvent the wheel each time you prepare for a deposition, if you
do it on a computer. If you do not type well or quickly, get the
latest version of Dragon
Naturally Speaking and
see how easy it is to type quickly when you let the computer do it.
If you do not want to invest in Dragon Naturally Speaking, Windows
7 comes with voice recognition software that is amazingly good.
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2. Scan all important documents
If you are not already scanning documents as a routine matter, this article may
inspire you to do so. Are you fed up with being a slave to masses of papers,
piles of subpoenaed records, stacks of books, pages from yellow pads, Post-its
and the other flotsam and jetsam that has long been the bane of law practices?
Scanning documents and keeping them organized in client folders not only gets
rid of the paper mess, it allows you to work from any location without having
to drag documents and law books around with you. See my Computer Corner series
for suggestions on office efficiency.
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3. Organize your documents within the folder
I am referring to
the folder on your hard drive, of course. It is a lot easier to
organize the electronic folder then any physical folder, thanks
to “drag and drop” and “copy and paste” techniques.
When preparing for a depo, simply make a new folder using the right
mouse button or clicking on the new folder icon, and label it “Depo.” Then
you can copy into that folder every important document involved
with the deposition. If you have saved numerous files to the client
folder and have not organized them in sub folders, just winnowing
out what is useful will save a lot of time. You can also mark up
the documents copied to the “Depo” folder while leaving
a pristine copy in the main folder.
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4. Use a file
manager viewing utility
so that you do not have to open each file in order to see
what is in it
My favorite program for quickly viewing my files is FileCenter.
Since a new version will be coming out shortly, I will not discuss
it at this time. It is such a powerful program, with so many uses,
you might want to go ahead and try
out the current version.
If
you do not want to pay for FileCenter but want a lot of features,
purchase PowerDesk
8 Professional. I found a 10%
off coupon online,
so check Google for a discount coupon before you purchase it. There
is no free trial but a 60 day money back guarantee. I decided to
keep it, because it does certain things that FileCenter does not.
Basically, it is Windows Explorer on steroids. Among the many nifty
features is the ability to add notes to the file, which you can see
at a glance. See Computer Corner this issue for a review with screenshots.
Whatever program you use,
the idea is to be able to see what is in the file without having
to open it, and to be able to copy and paste whenever possible into
your notes. As you quickly go through the files in the viewer, you
will want to copy and paste relevant portions into your notes file
(see next step). You may also want to copy the file path so that
you can quickly create a hyperlink in your notes file.
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5. Create a notes file
In the olden days, we scribbled on yellow
pads as we reviewed the file. Now. I set up a file in the client’s
depo folder by opening a new document and saving it as “Depo
Notes.”I have the habit of hitting Control+S frequently when
I type, dictate, paste or otherwise make changes to a file. I hate
having to redo things when there is a sudden loss of power or a
crash. This way, the most I can lose is my last thought.
In the “Depo
Notes” file I collect everything that seems it may be useful
for the deposition. Once I am done, I can then easily reorganize
my notes by blocking text and dragging it to a different location,
or copying and pasting it into my questionnaire template. There
may be a lot of leftover material in the notes file, but more is
better at this point in the process.
A mistake to avoid is using
a previous summary of your case instead of reviewing the original
data. Defense attorneys often dictate a summary of the applicant’s
deposition shortly after it is over. They may not bother to read
the actual transcript and instead rely on their notes. This can
lead to costly errors later in evaluating the case.
The same holds
true for medical summaries. When I review the summaries in forensic
reports, I often find important items missing from the report being
summarized. It would be a huge mistake to prepare for a medical
deposition without reviewing the actual medical file and relying
instead on a summary in the subpoenaed records or one prepared
by an assistant. There is no substitute for looking at the actual
evidence with a fresh eye.
It does help when making these notes in a complex case to have a
little outline or structure. If you end up with 6 pages of notes,
you will wish you had done that to start with. At the very least,
it is a good idea to separate research from the facts of your case.
As you review your file, especially the medical reports, extract
important information. Copy and paste, noting the document you are
referring to. You may want to insert a hyperlink, if there is a lot
you want to include, rather than extract bits and pieces. The linked
file can be marked up since it has been saved to the “Depo” folder.
Do medical research as necessary. Click here for the Medical
Manager article and spreadsheet, which has useful medical links.
You could also use OneNote or myBase to
help gather notes and research for preparation and later storage.
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6. Prepare
your questionaire
The depo questionnaire ensures that you establish all the points
you need to, that your questions are so clear that the doctor’s
answer addresses the legal issue and is “substantial evidence.” Key
questions asked ex tempore may be missing some component. For example,
if you are trying to get the doctor to Bensonize or to undo Benson apportionment,
it is important that the question be worded exactly like the Benson decision. Sometimes we read a transcript later and
are horrified to find that what we thought was a clear exchange of
questions and answers is actually quite murky and could be interpreted
different ways. The best way to avoid this is to have everything
clearly worded in advance. If the doctor does not answer the question
to your satisfaction, you can always say, “Doctor, my question
was specifically whether [then restate the exact language].”
Make sure you identify the reports clearly: e.g., “Doctor,
in your report dated November 10, 2010, you note on page 2, etc.”
Many
depositions involve apportionment issues. Your question should be
specific to the facts of your case. They should also incorporate
the language of important apportionment decisions, such as Escobedo and Benson.
For examples of apportionment questions, see these articles:
Have ready follow-up questions to commonly encountered doctor
responses. For example, when the doctor refers to epidemiological
studies, be ready with questions showing that epidemiology does
not prove causation. See http://en.wikipedia.org/wiki/Epidemiology.
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7. Final Step-
save your work
While you may be thinking at this point that I have not described
anything that sounds easy, consider this: each time you prepare
in the future, it will take less and less time, as you save
your work in a way that you can easily find it and build on
what you did before. The same issues come up over and over.
There is no need to draft new questions each time, if they
relate to common legal issues. Your Benson questions, for example,
can be used without re-researching the Benson case, if you
did it right the first time. If there is a change in the doctrine,
just revise that set of questions to conform to the new interpretation.
If you save your deposition questionnaires as described below,
you will be able to prepare for a deposition in a fraction
of the time you would otherwise have to spend.
One of the major benefits of doing it this way rather than the old-fashioned
way is that you can reuse your work over and over. Besides saving
the questionnaire to the client’s folder, save it to a folder
in your legal directory (see Computer Corner articles: How
to Store It, How to Find It and Saving
Graces. It will be of
no help if you just leave this in the client’s
folder, just as it does not help if you have drafted your questions
in longhand on paper. Your work will disappear in the mist of time.
In addition to saving your questionnaire, do not forget to save the
text or PDF copy of the transcript in both the client’s folder
and your general legal folder that you have dedicated to deposition
preparation. It helps to extract particularly good questions and
answers and save them in a database such as myBase (see above) or
in a word processor outline.
As a final note, you will want to incorporate the actual questions
you asked, when you had a successful deposition (or maybe great questions
your opponent asked), into your questionnaire template for future
use. Always ask the court reporter to e-mail you a text file of the
deposition transcript. I keep the reporter’s
card, so I can follow up if they forget to email it or send a CD.
You can then analyze the deposition with a program like TextMap,
then copy and paste the relevant lines into another document. |
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Marjory Harris began practicing law
in 1974 as a defense attorney and later became an applicant's attorney
and a certified specialist. She continues to represent injured workers
at the San Francisco, Oakland, San Jose and San Bernardino venues
and mentors attorneys on big cases.
Reach Marjory at (888) 858-9882
or email to MHarrisLaw@verizon.net www.workerscompensationcalifornia.com |
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