EP 719: Deposition Tips, Part 2: 12 Goals to Accomplish in Every Depo

Episode Notes

Transcript

nnouncer [00:00:01]:
Welcome to The Jury Is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney Erich Veith.

Tim Cronin [00:00:20]:
Welcome to another episode of The Jury Is Out. I’m Tim Cronin.

John Simon [00:00:23]:
I’m John Simon.

Tim Cronin [00:00:24]:
And we’re gonna pick back up with our deposition tip. Series. So I have written here, John, 12 possible goals to accomplish in any depo. There’s probably way more than this. These are the ones that I thought of to write down based on some past episodes or what we like teach in our classes. Establish one or more elements of your case.

John Simon [00:00:45]:
That is number one on there. Should be number one on everybody’s list. You know, again, I do something called an issues digest. You’re familiar with it, Tim, where I write out the elements of the case. And under each of those elements, you’re going to have issues and sub-issues. Did they sell the product? You know, maybe they didn’t, maybe they’re in the chain somewhere and, you know, you need to establish that. Were there any modifications to the product? You know, if it’s a product liability case, element number 1 is, you know, they sold the product in the course of ordinary course of business, right? Well, that’s not always as straightforward as it seems, right? Because you might have a distributor and a reseller and it might’ve got modified or changed.

Tim Cronin [00:01:18]:
It’s not their primary business.

John Simon [00:01:19]:
It’s not their primary business.

Tim Cronin [00:01:20]:
Here’s one I think I’ve seen people who don’t do a lot of product cases, if, if they have one, is it a reasonably foreseeable or reasonably anticipated use? And then a whole defense to the case might be that it wasn’t. And so very early on, that’s a box you gotta check. So always think about with every witness, how many of the elements of my case can we try to establish?

John Simon [00:01:42]:
And the one thing with all these depots, every one of them is like making a movie, you know, a short story, a movie. I mean, it’s gonna be played. It has to be organized. It has to be impactful. I mean, there’s a whole bunch of, you gotta get all this information. You gotta be thinking about, you know, it’s sort of like thinking about 15 different things at once. You know, like I always say, like standing up in a canoe trying to cross a lake. You gotta go with the flow.

John Simon [00:02:05]:
You gotta read the witness. You gotta be, be looking. And I, the other thing too, you know, is I look at your opposing counsel is gonna direct you in this deposition. The ones that more experienced ones don’t, but the less experienced ones always.

Tim Cronin [00:02:17]:
Mm-hmm.

John Simon [00:02:17]:
Let me know when I’m hitting something that’s a pressure point. Oh, I’m touching it. Yeah, I’m checking. You know, all of a sudden I’m like, oh, wait a minute, let’s cover— let’s spend another 10 minutes on this.

Tim Cronin [00:02:25]:
Yeah, go.

John Simon [00:02:26]:
Right. And it’s also— and, and good lawyers do this— I watch the expression, not of the witness, of opposing counsel as I’m asking the question. Or here’s the other thing, you know, they all of a sudden start writing furiously. I ask a question about something in a deposition and they’ve been sitting there not writing anything for 45 minutes, and I look around the table and 6 of them are all Going nuts, you know, writing.

Tim Cronin [00:02:47]:
This is what they think the case is.

John Simon [00:02:48]:
Let’s, let’s talk about this a little bit more. Okay. You know, so again, it’s listening, it’s being, you know, receptive to everything that’s going on around you. But I do that in every product case, auto case, not just the element, but explore the element, get an admission on the element. You know, I will ask them what I do is in the depot, and it comes naturally from doing it so much, you know, I’ll let them explain. And then I will rephrase it in a clear, concise, simple, straightforward statement and have them agree with it.

Tim Cronin [00:03:20]:
We’re looking for soundbites.

Announcer [00:03:21]:
Right.

John Simon [00:03:21]:
And, and, or just element, you know, boom, this is this, this is this. So you sold it in a regular course of business and he said, you know, and so I will go through that. And unless you get anything other than, it happens so often that we’re not listening close enough. It happens to me all the time. Even though you think you got a clear answer, You know, I will usually, if I’m, you know, I’ll ask it again. It is repetitive. I agree with you. I’m asking it again.

Tim Cronin [00:03:45]:
I just want to make sure.

John Simon [00:03:46]:
But I’m not going to read it 4 times at trial. I’m just wanting— I just one time, one answer I need. But you got to really make sure that you are creating a clear record by stating your question carefully. And here’s the other thing too, in depositions, it’s unlike trial. You know, you’re not going to sit there and read something at trial. and read it carefully and slowly. You know, it’s just not going to happen because you got a jury sitting there. But with a deposition, you can be a lot more specific in terms of your questions and how you’re more deliberate, more deliberate, more specific.

John Simon [00:04:19]:
You can take one question, keep doing it over and over.

Tim Cronin [00:04:21]:
You’re not wasting a jury’s time until you get it.

John Simon [00:04:24]:
And you can test different versions of it in a deposition.

Tim Cronin [00:04:28]:
I’m always thinking about like, well, look, I might be facing a summary judgment at some point, and I want to be able hand— put, put up a PowerPoint slide with one question and answer if they’re saying I didn’t establish specific— like one clear question and answer. Like, well, Judge, that’s it. Their person admitted this. That’s like, I certainly have evidence to establish.

John Simon [00:04:47]:
Yeah. But the elements, I mean, if you’re not establishing, building, addressing the elements of your case, I don’t know why you’re there at the deposition. Yeah. Why are you there? So I think that’s first and foremost. Sit down, know the law, write down, okay, what do I need to prove in this case? Is it a product case? Is it a third party? Is it a premises case? You know, is it a medical malpractice case? Is it a contract case?

Tim Cronin [00:05:10]:
What’s my verdict director gonna look like? Am I checking a Warner Brothers?

John Simon [00:05:14]:
And guess what? That’s a great point. The questions, when I, when I formulate the questions in my deposition on the elements of the case, guess where I look? The verdict director. Yeah. I look at the language in the instructions that they’re going to be, how they’re gonna be instructed. And I mean, that’s what you’re going to have to prove. And so, you know, that’s what we— that’s what you should be—

Tim Cronin [00:05:33]:
I want to be able to put up that verdict director and then go to a slide.

John Simon [00:05:37]:
Right.

Tim Cronin [00:05:37]:
Their corporate rep admitted that. Just as important, I think, possible goal number 2, just as important as establishing your own elements, eliminate claims and defenses. I remember earlier on, right when you started the firm, you had a multi-piece wheel case. a very nice $105 million result. Nice way to start a firm. And then—

John Simon [00:05:59]:
We were very happy about it.

Tim Cronin [00:06:00]:
You were very happy about it, I imagine. And then you got a bunch of those cases nationwide. Early in my career, we had one, Jonny and I ended up trying it down in Louisiana. But early on, you and I were working it up, and then you and Kevin had a trial at the same time. So Jonny and I went and tried it, but you took the corporate rep of the company that made this multi-piece wheel. And the counsel defending the depot, look, they’re nice, they’re good lawyers, but it was clear they’d never defended one of these cases before. And I remember at the first break, like an hour and 20 minutes in, we’d traveled up to Northern Illinois, I think, for the depot. And we walked out into the hallway and you said, I just eliminated every defense that exists in these cases that that attorney very clearly doesn’t know that they have.

Tim Cronin [00:06:49]:
Yeah. Yeah. Like all of the typical defenses were gone. and you did it really nicely with the guy.

John Simon [00:06:54]:
Yeah, he wasn’t as prepared because, you know, there hadn’t been as many. It was probably a first-time case for the other lawyer, and it was a smaller company that had smaller companies. You know, one of the things too, like a lot of times it’s— for instance, you think about, you know, if you have an assault case at a hotel and it’s about security, you know, what do the other hotels do, right? And so when I took depositions in that case of the other you know, corporate reps and the, and the experts, one of the things I knew was coming my way is they were going to say, look, nobody does security like that. You know, we wanted a lobby, a guard in the lobby. We wanted them to actually monitor the cameras. And well, nobody does that.

Tim Cronin [00:07:33]:
That’s crazy.

John Simon [00:07:33]:
There’s no hotel. What a crazy idea, you know? And so I knew that was coming. And so, and it did. One of the, one of the experts for the defense said, you know, they only do that in Las Vegas, watching the, you know, the gaming tables. And nobody does that, this kind of stuff. And then he gave examples of hotels in the area around our hotel in Chicago. And of course, I knew I needed to address that, right?

Tim Cronin [00:07:58]:
Yeah.

John Simon [00:07:59]:
And so I wanted to know exactly when he was there. When was the last time he was there? Why was he there? How long did he stay there? Was it at night? Was it during the day? And I spent a little bit of time, a lot of time on those things and found out that the last time he had been at any of those hotels was 11 years. Prior to our incident.

Tim Cronin [00:08:15]:
Okay.

John Simon [00:08:16]:
11 years.

Tim Cronin [00:08:17]:
Yeah. So you can’t say—

John Simon [00:08:18]:
He had a whole section of his report saying how nobody in that area does it. And I didn’t broadcast it, but at trial I just said, now wait a minute, on cross, you talked for 20 minutes about these hotels. This one in particular, when is the last time you set foot in that hotel? And he said, oh, well. And I said, do you remember telling me 11 years? And he goes, yeah. So I said, so just so that everybody’s clear here, you haven’t been at that hotel. You don’t know what’s been going on the last 11 years, right? Yeah, that’s correct. You know, that’s—

Tim Cronin [00:08:46]:
but again, this incident in this case happened 12 years ago or 2.

John Simon [00:08:49]:
So, and, and again, that’s something that you set it up in the deposition, right? Right. You’re anticipating what he’s going to say. The other thing we see a whole lot of is federal regulations, okay? Automobile cases, automobile product cases. Every single car out on the road, it has to, you comply with all the federal regulations or it’s illegal. You can’t sell it, right? And so every single car on the road, millions of cars, all comply with every single federal regulation that’s ever been passed. Not all of them. Well, yeah.

Tim Cronin [00:09:20]:
They say they do when they’re defending their case.

John Simon [00:09:21]:
They’re supposed to. They’re supposed to. And so that’s a big defense.

Tim Cronin [00:09:25]:
Minimum standard.

John Simon [00:09:25]:
Exactly. And so what are you going to do with that? Well, first of all, in the introductory paragraph to the regulation, it says it’s a minimum standard. But then what I do is, is in— I do this all the time with car companies. I’m giving away all my, you know, trial strategies here, but I will ask them, has your company ever had any recalls?

Tim Cronin [00:09:44]:
Right?

John Simon [00:09:44]:
Oh, wait a minute.

Tim Cronin [00:09:46]:
Yeah.

John Simon [00:09:46]:
And you recalled them why? Because it was a safety issue. Okay. That’s the recall.

Tim Cronin [00:09:50]:
But it passed all the federal—

John Simon [00:09:52]:
With flying colors. You know, it passed all of them with flying colors. Can a car, you know, be— obviously every one of them had, there wouldn’t be any recalls, right?

Tim Cronin [00:09:59]:
If they were all completely safe.

John Simon [00:10:01]:
So again, you need to be creative. You need to think about, okay, if this is a defense, you know, you want to figure out. And then a lot of times too, I won’t, I won’t actually lay out the defense or what I’m trying to do, but I’ll just get, get some groundwork.

Tim Cronin [00:10:16]:
Yeah.

John Simon [00:10:16]:
So that I can save it for, you know, save it for trial.

Tim Cronin [00:10:19]:
One of the questions I like on that topic, I’ve got a case with a car manufacturer now, is just like nonchalantly, Do you think your company’s goals should be to meet, operate based on minimum safety standards, minimum standards or maximum safety? What should your goal be? And of course they’re going to go, well, we exceed them.

John Simon [00:10:40]:
And then you can say this, well, let’s talk about it this way. If you didn’t pass this, if you didn’t meet the standard, they would be illegal. You wouldn’t be in the car business. You’d be selling something else like snow cones or whatever. You wouldn’t be selling cars.

Tim Cronin [00:10:53]:
But at one point, the regulations did not require seat belts. Does that mean seat belts didn’t make cars safer?

John Simon [00:10:59]:
And so another thing, and we’ve handled several of these underride cases where the rear underride guard on the back of a trailer, you know, it gets rear-ended and the car goes underneath and passengers are decapitated. And it’s a horrific, horrific injury. And it happens more often than you would believe. But we get in those cases, you know, one of the defenses, the obvious defense in those cases is, Well, they ran into the back of the trailer, right?

Tim Cronin [00:11:24]:
Yeah.

John Simon [00:11:24]:
Well, wait a minute. They ran into the back of the trailer.

Tim Cronin [00:11:26]:
It’s not a bad defense, to be honest.

John Simon [00:11:28]:
Well, no, and it’s just true. But so what do you do with that, right?

Tim Cronin [00:11:31]:
Yeah.

John Simon [00:11:31]:
And you got to think of ways that are very, you know, solid, reasonable. And I said, well, let’s talk about the purpose of what’s on the back of the trailer. Is it for decoration?

Tim Cronin [00:11:41]:
Yeah.

John Simon [00:11:42]:
It’s for aerodynamics. Does it help with the air? Oh, it doesn’t help with aerodynamics? My, my, what could it possibly be? Why is it there? Why would the government require something like that to be there? What is it for? Oh, so other than a car hitting it, is there any conceivable way, any other conceivable reason why that thing needs to be on the back of the trailer other than a car running into it? Well, no.

Tim Cronin [00:12:03]:
Yeah.

John Simon [00:12:03]:
Okay. So if it’s only there for this situation, the situation that we’re here talking, you know, again, you, you build that up a little bit.

Tim Cronin [00:12:10]:
Then what’s the point? Is it, is it to try to make sure they don’t get decapitated during that event? So, you know, happens.

John Simon [00:12:17]:
Well, I’m, I’m kind of phrasing it as I would at trial.

Tim Cronin [00:12:20]:
Yeah.

John Simon [00:12:20]:
I would do it in a little more subtle fashion in the deposition just to get them to acknowledge, yeah, that’s what it’s for, right? Okay, great. Any other reason you can think of? No. And you’ve set that witness up for when they, when they go to trial.

Tim Cronin [00:12:30]:
Yeah.

John Simon [00:12:30]:
You can be a little bit more specific about it.

Tim Cronin [00:12:33]:
Number 3 goal is, and this is building off 1 and 2, which is establish elements of your case, eliminate claims and defenses. Number 3, nail down something you already know or have already gotten to give the other side less wiggle room. Just because you’ve gotten some admission about some fact, or element or something that undermines a defense from one witness or two doesn’t mean you shouldn’t be trying to get it from every single person to give them no wiggle room. Close to that. Number 4, box a witness into what they can or cannot say at trial to avoid later creativity. Cut off avenues of escape. This is kind of an offshoot of what you said earlier, John. When you get an, an answer you like, an admission you like, you do this, I do this.

Tim Cronin [00:13:15]:
I will rephrase it 3, 4 more times to make sure they can’t have any creativity at trial to go, well, you asked it like this and that’s, I understood this.

John Simon [00:13:26]:
So why? You know, people, why is that? Why do we do that? It’s because at trial, hundreds of times, you know, you get a witness to say yes to a question and all of a sudden at trial it’s not necessarily yes and we didn’t mean this and, well, I assume this and we phrase it.

Tim Cronin [00:13:40]:
I’ve had to have my own experts try to do that.

John Simon [00:13:44]:
I remember as a very young lawyer, one of the first cases I was trying doing plaintiff stuff, it was a simple auto case and I deposed the driver. And the driver, I wasn’t very clear in my questions. I was having a conversation with the witness and he was a nice guy. And I said, so here’s what happened. And you pulled out and got hit and okay. And I didn’t really pin down specifically that it was his fault, that he had the stop sign, because I thought, well, wow, they’re not disputing liability in this case, right? It’s, you know, he had the stop sign. My car didn’t have the stop sign. And then we get to trial and I’m sitting there listening to the defendant, the defendant’s direct, right? And it’s a little 2-day auto case and I’m listening to him and, and I’m wondering if he even had a driver’s license.

John Simon [00:14:26]:
Sounded like he wasn’t even there in the state at the time. You know, he’s, he’s, he’s acting like he wasn’t even in, wasn’t even in the county when it happened. And so when you say all of the elements of the case, I know this sounds kind of like crazy, but—

Tim Cronin [00:14:39]:
You were driving a car.

John Simon [00:14:40]:
You were driving a car. You were the driver. You were stopped. You were stopped at this intersection here. Put an X where you were stopped. Now, there’s a stop sign there. Show us where the stop sign is.

Tim Cronin [00:14:53]:
You know, it seems— Tedious.

John Simon [00:14:54]:
It seems tedious, but you would be— you maybe you wouldn’t be surprised, you know, depending on how many cases that you, you know, you’ve tried. But, you know, it’s all of a sudden, you know, words have different meanings. And so you got to really Be very clear and specific about whatever that fact is. Establish all the facts. I put not just the elements of the case, but admissions. Admissions, you can get factual admissions. What are we disputing? I have a section in all my outlines that say facts of the case.

Tim Cronin [00:15:23]:
Yeah.

John Simon [00:15:23]:
And that’s about, okay, I think I have an understanding of how this happened, but maybe you disagree and let’s sort that out. Let’s see what we disagree with. Right?

Tim Cronin [00:15:33]:
You will often, and I do too, after you get the admission of the fact, maybe in 3, 4 ways, have a completely closed-the-box question of, okay, so the parties don’t have a dispute about that fact in the case, right? We can talk about other things, but this, right? No dispute, complete agreement. Yes. Then you can move on.

John Simon [00:15:54]:
Right. Eliminate it. So, you know, when you go to trial, you, you’re going to have what issues you really have at issue.

Tim Cronin [00:15:59]:
Another goal number, possible goal number 5 to accomplish in a depo, eliminate a witness from being able to say anything meaningful if you already have everything you need from others. Sometimes you’re trying to keep getting more witnesses to nail down something you already know, but sometimes you may just want to sideline a witness. If you’ve already got your case that looks really, really good, you got a witness or 2 left, you just want to try to prevent them from saying as much as possible.

John Simon [00:16:23]:
And I do that routinely with, with experts. Uh, just to confirm that, that, you know, a lot of times what you’ll see is they have an expert who’s retained to give an opinion on this subject. And, you know, maybe it’s one’s an accident reconstruction, the other one’s human factors, and, and then things don’t go so well with the accident reconstruction. So all of a sudden the human factors is talking about speed, you know?

Tim Cronin [00:16:44]:
Right.

John Simon [00:16:45]:
And so what you want to do is you, you want to say with each expert, so you’re not giving an opinion on this, you’re not giving an opinion on this, you’re not giving an opinion on this.

Tim Cronin [00:16:53]:
And that’s the next goal I have. 6, eliminate an expert’s qualifications to give opinions about something. When I do this most often is I handle a lot of med mal cases. And the other side, I’ll be, the first thing I do is depose the defendant physician, the healthcare provider, individual healthcare provider is at issue. And I try to put my whole case on before they’ve like seen anything else in the case, ’cause they may not know where we’re going.

John Simon [00:17:16]:
Mm-hmm.

Tim Cronin [00:17:16]:
You get a lot of admissions. But you end up deposing, like, if we have 5 experts in a med mal case, the other side has 10. So what I start almost every either defendant doctor or treater that works for the same hospital, so they’re prepared by the defense or defense expert early, like the first section for my depos is always, this is what kind of doctor you are. This is what that kind of doctor does. There are other types of doctors, a neurologist, a neuroradiologist, whatever. What they do is different than you in that they do this, this, this. You don’t do that. That’s not part of your practice.

Tim Cronin [00:17:58]:
So you’re not going to be giving opinions about A, B, C, D, E, F. I’ve seen it have a chilling effect where I know from their correspondence, from their notes that they were planning to go there. And once they agree it’s outside their qualifications, they don’t go there. Yeah.

John Simon [00:18:13]:
You know, another thing too that we sort of touched on a little bit earlier is, you know, it’s a big issue and you, we might have in one of your outlines going forward, but you know, what you ask that witness and how much you cover with that witness depends a lot on when you take ’em in the case.

Announcer [00:18:28]:
Yeah.

John Simon [00:18:28]:
And that’s a big, big issue of if you have a very important witness in the case, do you wait till you have all the information and you’ve taken everybody else and take it? And that’s just, do you know, it’s a, tough decision.

Tim Cronin [00:18:40]:
It’s case by case.

John Simon [00:18:41]:
It’s case by case.

Tim Cronin [00:18:41]:
And other times you take corporate rep very early.

John Simon [00:18:44]:
What I do is if it’s a case that I’ve handled before, if it’s a, you know, a roof crush, you know, rollover, an underwrite case, you know, a hotel security case, for instance, and I’m pretty familiar, especially if I’m familiar with the exact defendant. For instance, we’ve had repeat cases against trailer manufacturers with the same, the exact same design. And in those cases, I immediately took the— I didn’t take the corporate rep. I immediately took a junior, a more senior engineer who I had taken in another case.

Tim Cronin [00:19:13]:
Who made the design?

John Simon [00:19:14]:
And he was a very honest, straightforward guy. And it was trouble for my opponent in the case. And I just, I literally was able to put on the entire case, eliminate defenses, eliminate issues with one single witness. And I knew the witness. I had spent— not only I had him at trial and at You know, in a deposition. And so I knew the witness very well and there was no reason for me to wait.

Tim Cronin [00:19:37]:
Whereas if it’s a type of case that you haven’t handled before or type of product, right?

John Simon [00:19:42]:
I want to know the lay of the land. You want to know everything out there first.

Tim Cronin [00:19:45]:
I wait until I make sure I have every freaking document, know what everybody else is saying. I know exactly what my experts are saying and their experts, and then I’ll take the corporate rep fully armed with everything. Another goal, and this is more like, there is some information seeking, Goal number 7, find out who knows key information or documents you don’t have yet and how or where to get it.

John Simon [00:20:07]:
And that’s so easy because you’re going to get a lot of answers. I don’t know. I don’t know.

Tim Cronin [00:20:11]:
Who does?

John Simon [00:20:12]:
I don’t know. Right. And why I don’t know, and who would you go to? Where would you start?

Tim Cronin [00:20:15]:
Do you have documents of that type? Where are they kept? How easily can you get them?

John Simon [00:20:19]:
And that’s, that’s really, we were talking about elements of your case and building your case. That’s, that’s almost purely a discovery aspect of that. And I’m, And we’re not saying you don’t do discovery in this deposition. You know, you do, you’re going to do discovery naturally because a lot of the questions are not going to be able to answer.

Tim Cronin [00:20:34]:
Yeah.

John Simon [00:20:34]:
And you got to follow up and figure out where, where you need to go or what documents you need to ask for.

Tim Cronin [00:20:38]:
Well, and you, I mean, we often think we don’t have— what is, what is Alvin Wolf’s—

John Simon [00:20:43]:
You never have the 40 lessons. You never have all the medical records. You never have all the documents.

Tim Cronin [00:20:49]:
Yeah. So we often suspect Or, or more than suspect, there are documents out there that are crucially important that we don’t have. And it’s not necessarily the other attorney’s fault. They may not know. They’re, they have what their client gave to them that you’re trying to establish. There are other types of documents. You keep them in this repository or this system. It’s very easy to retrieve them.

Tim Cronin [00:21:14]:
You basically press a button. So there definitely are some discovery aspects of a DEPO.

John Simon [00:21:20]:
Yeah. And, and I do that in anticipation.

Tim Cronin [00:21:21]:
And that is improving your case.

John Simon [00:21:22]:
Right. And, and that, I do that in anticipation. of the, you know, the discovery disputes where, where you get— you ask for documents and, and the answer will be vague, overly broad, uh, unduly burdensome, right? We all— we get the same ones all the time. And I’m like, okay, do you understand what I’m asking for? Okay, do you have those?

Tim Cronin [00:21:40]:
Track of, right, other— of complaints and incidents, right?

John Simon [00:21:43]:
What do you call those?

Tim Cronin [00:21:43]:
Yeah.

John Simon [00:21:44]:
Who keeps them? Who’s the custodian?

Tim Cronin [00:21:46]:
How do you get—

John Simon [00:21:47]:
How are they retrievable?

Tim Cronin [00:21:48]:
Oh, you can press a button and they all print out, right?

John Simon [00:21:51]:
And so those You know, those are things again that you need to lay the groundwork for that so that when you are challenged with objections to what you’re asking for, you’ve got some answers. Think about this, going up to argue a motion requesting documents in any kind of case, you know, say it’s a product case and you haven’t taken any depositions and have no idea what documents that they have or don’t, you’re at a major disadvantage because, you know, if they come in and say, well, it’s unduly burdensome, or we don’t have these, or the custodian went to Hawaii and doesn’t work there anymore, whatever, And what are you going to say if they say that?

Tim Cronin [00:22:26]:
I want them.

John Simon [00:22:27]:
Uh, well, yeah, I just will. Can you get them for me anyway? You know, but it’s really important to identify not just the documents, but how they’re kept, the system that they have in place, who is most knowledgeable about that system, how are they retrieved? Can they be sorted by topic? Can they be sorted by, by time, by chronology, by, by product? And, and just really spend as much time as you need so that when you leave that deposition, you got a really good firm handle on the system that they have in place to, you know, access what documents are created. You start out with what, what documents are created in the process, not where they’re just where they’re kept. But what I’ll do is I’ll go through the manufacturer, I’ll go through the entire, you know, product case. I can look at it like it’s a, you know, it’s a living, breathing person. You know, when did it start? When was it born? You know, who had the original design? Were there prototypes?

Tim Cronin [00:23:19]:
Product planning stage.

John Simon [00:23:20]:
Right. Planning, design, design changes. And, and I go through and say, okay, at this stage, what documents were created?

Tim Cronin [00:23:26]:
Yeah.

John Simon [00:23:27]:
What are they called? How long are they kept? And so then when you, you’ve, you’ve established through the process what documents are created, and then the, the other part’s a little easier because how long do you keep ’em? Are they retrievable? Do you toss ’em out? I mean, I, I had a case against a—

Tim Cronin [00:23:40]:
Retention policy.

John Simon [00:23:40]:
A foreign, a foreign automobile manufacturer. And they said it was actually, it was a Japanese automobile manufacturer. And they actually said in court that they didn’t keep any of these documents on seatbelt testing and design because their country’s very small and they had space issues at the— that was, that was 30 years ago, I guess. But anyway, you know, that’s what they— that we tried that case and that’s what they told the jury. And jury wasn’t real, real, real happy with that either. So.

Tim Cronin [00:24:06]:
It’s one particular type of case this has become. If you learn how it all works, this has become, it’s actually become easier. So would, you know, Alvin says you never have all the medical records. There’s actually a very easy way if you’re methodical now to make sure you have all the medical records.

John Simon [00:24:21]:
What’s that?

Tim Cronin [00:24:22]:
So now that we going to electronic medical record systems, a lot of places have Epic, like bigger institutions have Epic and you can learn and it’s not that difficult to learn. You can figure it out online. You have experts who explain it. Exactly all of the different types of records that can get created. For example, like secured chats, they don’t usually turn those over in the beginning, but it’s basically like an instant messaging system, a chat system.

John Simon [00:24:51]:
Internally at the hospital.

Tim Cronin [00:24:52]:
Internally or between providers where they’re talking to each other. I happen to know most of them by default, when they turn over their designated record set at the beginning, they don’t click that box. Even though it’s protected health information, they have to turn it over. So you can learn all of these different types of things, meticulously lay them out in your initial written request for production, which we do. And then in every med mal case, Johnny started doing this back when he was a brand new lawyer, first started working for me. These had become much more widespread and you had said like, we all need to be taking custodian record depots in every med mal case. Well, Johnny figured out, talking to experts and just through questioning the other side, every single possible type of thing that can be generated from these electronic medical record systems, depending on what, what type of system they use, and took a custodian of records depo at the beginning of every med mal case we had and meticulously asked every one of those things. And the defense lawyer’s like pulling their hair out, like, oh my God, what are you doing?

John Simon [00:25:55]:
Like, and they’re our client’s records.

Tim Cronin [00:25:56]:
Yeah. I’m making sure I have all of my client’s records. You didn’t give me all of them. And we’ve gotten better and better at that. And then you can get audit trails now, which show you—

John Simon [00:26:07]:
Explain what those are.

Tim Cronin [00:26:08]:
Audit trails is something that can be generated. It’s like the backend of every electronic medical record system. It gets produced usually in Excel, not Excel sheets, but there’s a whole bunch of tabs. And then we give them to an expert every single time anybody at the hospital or institution has access to your clients. You can get user-based ones. So if you want to know over a week or month period, every time a particular doctor has touched any medical record to see where they were at what time, what door they accessed, whose chart they were in and for how long, there’ll be HIPAA concerns about other people. You can get their user audit trail. You can get your patient’s audit trail, which is every single person who has ever opened up your client’s chart.

Tim Cronin [00:26:53]:
Why they opened it up, if they made any changes, what they were doing, how long they were doing it.

John Simon [00:26:57]:
How long they were on it. Yes. Yeah.

Tim Cronin [00:26:58]:
It includes risk and legal if they were in it right after this incident happened. And it can show you particular things like, you didn’t gimme secure chats and there’s 1,000 secure chat threads within these 10 days between, I mean, that’s an issue Nathan and I have live in a case right now. So those electronic medical record systems, if you take the time to learn about ’em, You really can get gold and make sure you have everything. That is crucially important. Anytime early on, try to do everything you can to establish in a depo any types of documents you may not have, how you can get them. And then possible goal number 8, you may have essential documents produced from the defendant, or maybe you don’t know if they’re essential. There may be documents produced from the other side that you don’t know, that understand the significance of them or how to interpret them. And you better make sure you understand and know that so that you know what the other side is going to use them for later on at trial.

Tim Cronin [00:27:56]:
So that’s another like legitimate discovery purpose of a depo, I think. Make sure you understand all the documents they produced and what they mean or don’t mean and what they’re going to say about it. Possible goal tip number 9, take away or flip expert opinions before they have a chance to give them or recite them. them on the defensive so they’re hesitant to say what they were prepped to say. That can be by attacking their qualifications or credentials to cover an area earlier. It can be by, look, if you know an expert’s coming in to dispute causation in your case and you found another depo or an article they’ve written that says basically the opposite, before they have a chance to say what I think they’re there to say—

John Simon [00:28:36]:
Confront them with it.

Tim Cronin [00:28:37]:
I’ll put them up and go, you know, I was reading, you have a lot of articles out there. It’s very impressive. I will hold up a stack like I have a 6-inch thick stack. It’s all highlighted and tabbed. You see that? I’ve read them all for your benefit, just to let you know. I’ve read them all. And this particular one says this, blah, blah, blah.

John Simon [00:28:53]:
Now, certainly not— you’re not—

Tim Cronin [00:28:55]:
certainly not going to dispute that. And then their opinion is— yeah, it’s—

John Simon [00:28:59]:
It’s this.

Tim Cronin [00:29:00]:
The next one, goal number 10, is a famous book written by Rick Friedman, who you’re friends with and in the inner circle with. That’s called Rules of the Road. And essentially you want to establish safety rules. Look, if it’s a car accident case, you’re literally using rules of the road. You have to stop at a stop sign, yield to traffic, right?

John Simon [00:29:18]:
What rules apply to you?

Tim Cronin [00:29:21]:
Establish safety rules that apply to the case by which to judge the defendant’s conduct.

John Simon [00:29:26]:
If it’s a hotel, what do hotels do? What are hotels supposed to do? Well, you know, what’s the standard in the industry? If it’s an automobile company, you know, design issues. If it’s a medical procedure, that’s where everything gets— oh, there’s so much gray area because you can’t have amorphous concepts of negligence.

Tim Cronin [00:29:43]:
And you have to do this, you have to do this.

John Simon [00:29:46]:
And then we see that all the time with, well, it was— it’s a judgment, clinical judgment, judgment call. And that’s why I ask all the time, doctor, every witness, is it possible? Well, first I ask, can doctors commit malpractice? Is there such a thing? Some witnesses They know that doesn’t exist. So no matter what the evidence is, you’re not going to support a—

Tim Cronin [00:30:06]:
I had one recently that said, as long as you subjectively think you’re doing the right thing, it’s not negligent. He was the only standard of care defense expert.

John Simon [00:30:14]:
Wow.

Tim Cronin [00:30:14]:
And I was like, okay, I don’t think you’re testifying. But yet the question I think you were getting to is, is it possible for— and I copied it and I do it in every one— a physician to exercise his or her judgment and still fall below the standard of care?

John Simon [00:30:30]:
Yeah. And half of the physicians that I ask that question to say no.

Tim Cronin [00:30:34]:
Or they fight for a while until they actually concur.

John Simon [00:30:36]:
And they go, well, no. And so as long as they think they’re doing their best, we gotta live with that, right?

Tim Cronin [00:30:42]:
Yeah, that’s what— even if they’re wrong, like here they were wrong. They diagnosed this, it wasn’t correct.

John Simon [00:30:49]:
Yes.

Tim Cronin [00:30:50]:
So you need to establish clear bright line rules that even the other side agrees their conduct should be judged by to make it easier on the jury. Like, okay, this is what should happen. Now you’re just deciding, did it or didn’t it? Number 11, as part of establishing safety rules that apply to the conduct of the defendant, figure out why those exist. In other words, establish—

John Simon [00:31:18]:
What’s the purpose of the rule?

Tim Cronin [00:31:19]:
You do that because it can prevent— there’s a, it creates a risk of this. Got it. That puts people like my clients—

John Simon [00:31:26]:
It puts the rule in context so the jury knows why the rule is there.

Tim Cronin [00:31:29]:
And then my favorite one, Jon, this is yours. I remember in COVID we were having weekly attorney meetings to all try to stay in contact with each other. How about that? It was good because we’re all in our houses, not seeing anybody but our family who’s sick of us. And you gave a presentation and I forget what the context or title of it was, but ultimately you said there’s 2 goals and rules in every single case. And we all kind of laughed, but I’ve now repeated it all the time.

John Simon [00:31:59]:
It was a 2-sentence seminar. Yeah.

Tim Cronin [00:32:01]:
Yeah. And it was generally your goal in everything you do in the case should be one of 2: try to make your client look good and the other side look bad.

John Simon [00:32:13]:
Now, for our friends on the defense side, I learned that from y’all.

Tim Cronin [00:32:17]:
Okay? Yeah.

John Simon [00:32:18]:
That’s what every—

Tim Cronin [00:32:19]:
All they’re doing is thinking, my client looks like a piece of garbage.

Announcer [00:32:22]:
Right.

John Simon [00:32:22]:
Why do they want to know whether you were arrested 20 years ago. You know, this is an auto accident. You got rear-ended by a truck. And so I started thinking as a young lawyer, why in the world do they want to know about a, you know, a conviction, you know, or something else that happened or whatever? And, you know, the old saying, and I’ve said this, you heard me say this many times, you let me pick my client, I’ll let you pick the facts. Okay?

Tim Cronin [00:32:43]:
Yeah.

John Simon [00:32:44]:
But, and again, you want to present your client well in the best light. Okay? And the same thing when I take, and I’ve said this before on this podcast, when I take depositions of an opponent in the case, a defendant, whether it’s a doctor, a truck driver, an engineer designing something, whatever. When I show up at that deposition and that person is polite, respectful, honest, straightforward, I leave that deposition disappointed. Okay.

Tim Cronin [00:33:07]:
Yeah.

John Simon [00:33:07]:
Because I, and I, again, I know they’re going to make a very good impression in front. They made a good impression in front of me. Same goes with my client. You know, if my client shows up, And, and does a really good job and they’re prepared, and if something’s bad, they admit it. There’s, they’re truthful, straightforward, honest. Uh, the value of my case goes up.

Tim Cronin [00:33:25]:
Yeah.

John Simon [00:33:25]:
Okay. And so if, if you’re not aware of that, you need to be. That’s, that’s very important.

Tim Cronin [00:33:31]:
I mean, it’s every single thing that happens in the case. It probably has some effect on whether your client is more likable and sympathetic or the opposite or the other side. So, That was possible goals to accomplish in any depo. If you are not accomplishing one of these goals, you might want to ask, why are you taking the depo? Yeah.

John Simon [00:33:52]:
And maybe you don’t need to.

Tim Cronin [00:33:53]:
And maybe you don’t need to. We’re going to stop there and come back continuing with our deposition tips. Thank you for joining us for another episode of The Jury Is Out. I’m Tim Kroman.

John Simon [00:34:03]:
I’m John Simon. We’ll see you next time.

Announcer [00:34:08]:
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John Simon [00:34:33]:
941-2929.

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