Before reading this brief blog/article understand that I, Eric Roy, wrote this blog for my and my staff’s benefit. I learned the information contained in this blog from Rick Friedman. If you wish to achieve a more thorough understanding of the material I suggest you read any of Rick Friedman’s literature which is exceptional. This article discusses some discovery techniques to use in a plaintiff’s personal injury action.
At a basic level, the purpose of your discovery should be to accomplish several different things. The first thing you are trying to achieve in discovery is to establish new rules or principles that should have governed the defendant’s conduct. Remember that we need to demonstrate to the jurors that there were in fact clear rules or regulations in place and that Defendant violated those specific rules or regulations. We thus need to do our best to create some hard and fast rules that are not in dispute and then prove that defendant violated those rules at trial. In discovery we thus should be inquiring as to the source of those rules. We need to find out where we, as plaintiff’s counsel, can go to find these rules or regulations. To this end we need to request policies, procedures, manuals, and any other literature that were aimed at governing defendant’s conduct. These regulations can be found in a variety of forms. Perhaps public laws guide the actions of the defendant’s industry. Perhaps there are internal policies in place meant to govern defendant’s actions. Whatever they are and wherever they can be found we need to get our hands on the sources for those rules.
To this end think about propounding very specific interrogatories regarding any bodies of literature which may provide governing authority over the defendant’s specific industry or actions. Remember that it will typically be an assistant or some other non-lawyer who will do the legwork of actually locating and gathering your requested documents. Thus make your requests readily understandable to the lay person. Your interrogatories will primarily be used for the purpose of locating sources for rules as opposed to rules themselves.
With respect to requests for admission try to lock the defendant in to specific answers. You can then use these answers to guide the defendant’s testimony on cross examination during trial. Don’t waste your time asking case dispositive questions in your requests for admission as you are highly unlikely to get the answer you are seeking with that method. Instead, ask the defendant if he was bound to abide by certain rules and regulations. Ask the defendant to admit or deny the existence of basic rules. For instance, “admit or deny that a driver should not text while driving”. In this way you lock the defendant in to admission of certain rules.
Depositions will be your most powerful discovery tool of course. If you end up conducting your deposition of the defendant in his own office take advantage of the fact that he or she may have a lot of books which govern his or her trade in the office. Read into the record the various publications and treatises located on the defendant’s shelves. Then you can ask the defendant about the specific books. Ask the defendant if each of those texts are authoritative in his or her industry. Then later, after deposition, have your research assistant tear this literature apart in an effort to find rules in those books that the defendant violated. This is a powerful tool because it will be hard for the defendant to argue that those rules are not authoritative given the fact that they are on his own bookshelves and moreover he likely testified in his deposition that they are in fact authoritative.
In addition to deposing the defendant himself be sure to depose the corporate spokespersons, if you are suing a company. Under the federal rules and most state rules you can require a corporation to designate a person most knowledgeable to testify on a given subject matter. This is excellent as this person most knowledgeable’ s testimony is binding as to the defendant company. Keep in mind that federal rule of procedure 30(b)(6) has no limit as to the number of spokespersons you can force the defendant to produce nor is there a restriction on the number of depositions you can take for this purpose.
When conducting your 30(b)(6) depositions know that there will be times when the defense will produce a witness who really knows little to nothing. This leaves you with a couple of choices. You can lock in the witnesses’ testimony as to his or her lack of knowledge and then file a motion with the court requesting sanctions or a new witness. However it may be better to use this witness to your advantage. Since the witness knows nothing, have him or her testify to as much. Ask the witness about what standards govern the defendant’s actions. Lock the witness into stating that he doesn’t know those standards. Then at trial you can essentially show the jury that the person most knowledgeable in the corporation doesn’t even know applicable standards. Thus you can show a lack of communication and training within the organization and so forth. If the person most knowledgeable doesn’t know the standards it stands to reason that the acting defendant did not know those standards either, thus the corporation wasn’t communicating these standards to its employees.
When you are conducting your deposition, you need to not only be looking for sources for rules but also securing the defendant’s agreement to rules you have already obtained. To do this, begin by asking the deponent whether he agrees or disagrees with the rules which you are the most sure he or she will agree with. To demonstrate to your deponent that he shouldn’t play games with you begin some of your questions by citing to the authority for the rules. In this way the deponent understands that you are informed as to the nature of these rules and that you will make him look foolish if he plays games with you. If the witness doesn’t endorse your rule then ask him directly if he disagrees with the rule. The objective here is to force the deponent to take a solid position one way or the other. If the witness denies the rule on the record he looks ridiculous and will look particularly dishonest and ridiculous in front of the jurors at trial. Force the witness to agree with your rule or to otherwise take an unreasonable position by disagreeing with your rule. The point is, you don’t want the witness to hide in ambiguity and uncertainty. If the witness is unable to take a position then change course and have your witness define the rules for you. Ask your witness what the defendant is supposed to do under x, y, and z situations. In this way you create new rules.
After you have solidified a witness’s agreement to a rule or had the witness otherwise testify to a new rule be sure to ask the witness why such rule is in existence. In this way you can get the witness to admit, in his or her own words, why and how such rules protect members of our community. You can then use this language while conducting your cross examination. You can cite to the defendant’s own statements in your opening statement. Explain to the jurors that the defendant will admit, during trial, that these rules are in place to protect members of the community much like individuals in the jury box today.
At the end of the deposition be sure to walk your deponent through a detailed specific inquiry as to the facts of the case. It is best to do this at the end of the deposition after you have already inquired as to the rules. Otherwise you run the risk that the witness will not admit to those rules which would be in contradiction to facts he or she just elicited. Don’t bother trying to get the witness to admit violation of the rule in the deposition unless you have an unusually cooperative witness. The better route is to wait until trial to do this. Before concluding your deposition ask the witness if the defendant made a mistake in their actions. If the witness tells you that mistakes were made then follow up by asking what all mistakes were made, why they were made, when and how they were made and so forth. If the witness denies making a mistake then you have established ammunition which will make the defendant look unreasonable at trial. The jurors will punish the defendant for proceeding with such arrogance and lack of responsibility.