Page 32 - FDCC Insights Spring 2022

Floyd G. Cottrell
Four Tips on Deposing Plaintiffs
By Floyd G. Cottrell
After 38 years in personal injury defense practice and deposing thousands of plaintiffs, here are some thoughts on sometimes idiosyncratic techniques that on occasion reaped great rewards.
Mix it up
The typical deposition of the plaintiff begins with background questioning, moves into liability, then delves into the injuries and treatment. Plaintiffs’ attorneys know it and prepare their clients accordingly. And as the deposition unfolds exactly as the plaintiff’s attorney predicted, the plaintiff’s confidence grows as he or she adheres to the prepared answers.
The background-liability-damages progression is not sacrosanct and there is much to be gained from discomfiting the plaintiff (and the plaintiff’s attorney) with a more eclectic approach. Damages first and liability last may be preferable where damages are fairly incontrovertible, but liability is hotly contested. Why not tire the plaintiff out a bit before delving into the more disputed issues?
The “liability last” approach recently worked well in a case brought by a longshoreman run over by a tractor-trailer in Port Newark who we strongly suspected walked backwards into the truck’s path while looking up checking the numbers on containers stacked four high. The plaintiff made several concessions we may not have obtained if liability questioning was earlier in the day. And the plaintiff ’s attorney’s complaints that, “it’s been four hours and you haven’t touched liability” probably only fueled a desire of the plaintiff to just get it over with.
Get the context
In most depositions, a plaintiff will be asked to fill up two baskets. Basket #1 will have everything the plaintiff could do before the accident and can no longer do because of the injuries, that is, what is completely gone from the plaintiff’s life. Basket #2 will have all the things still done that are harder to do because of the injuries. And the plaintiff will have carte blanche to fill up the baskets with lists of activities developed in deposition preparation. Because we let it happen.
There is a better approach. Recognize that plaintiffs, like the rest of humanity, have only so much unstructured time to devote to activities beyond work and the
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