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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.
  depo pre made easy
There is an easier way.
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.
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.

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.

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.

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.
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.

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.
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