Developing a Discovery Plan and Establishing Witness Goals
Paul J. Scoptur
Aiken & Scoptur S.C.
260 E. Highland Ave. #700
Milwaukee WI 53202
www.plaintiffslaw.com
A major key to effective deposition taking is developing a discovery plan and establishing goals for each deposition. It isn’t enough to wing it, to give it a few minutes thought. Instead, the discovery plan starts before suit is filed and each potential deponent must be identified before the discovery plan is done.
There are several rules to follow when developing the discovery plan and establishing witness goals.
Rule 1: Consider pre-discovery focus groups. Pre-discovery focus groups can give you valuable information, such as what questions to ask in deposition, what is important to jurors, development of themes. What may be important to us as lawyers may be unimportant to jurors. Use focus groups to zero in on those facts and witnesses that are important to the jurors who will hear your client’s case. After all, it’s what’s important to the jurors, not what’s important to the lawyer.
Rule 2: Outline your plan and put it in writing. Each case involves a multitude of facts that need to be organized, not in the head but on paper. You can use a legal pad, or a myriad of software programs. Microsoft Word has a notebook feature that allows you to organize your discovery plan. Circus Ponies has a Notebook which can form the basis of the plan. List case critical issues, witnesses and documents. Identify the standards and rules that apply. Whatever you use, put the plan in writing so you can visualize it and revise it as discovery progresses.
Talk to your client and your experts. They can tell you what is important to them and what they would like to know. The experts can tell you what to focus in on when doing the depositions.
Rule 3: Identify who you want to depose and why. The order and sequence of the discovery and depositions is crucial. Do you do the defendant first? Perhaps a 30(b)(6) deposition is first, to get the important documents? The order of how you conduct the depositions can set the stage and pace of the rest of the discovery.
Rule 4: Determine the methods of discovery you will use. Discovery and depositions can take many forms. Paper discovery can be used to gain information and admissions early in the case.
Do I videotape the deposition? Do I appear in person or do it by telephone? My rule is to videotape every deposition I take. No exceptions. You can hire a videographer or do it yourself, but you just never know what is going to happen. Non-verbal communications can be extremely effective. A shrug, a headshake, a defeated look by the witness can only be picked up by the camera.
I also do a lot of depositions by telephone. I have found this to be an effective method, as well as saving money and time out of the office. Many lawyers feel a need to “be there,” but I have found after too many hotels in too many cities and too many cancelled flights that I don’t have to “be there” to be effective. Try it, you will be surprised.
Rule 5: Restrict Discovery. Cases are won and lost in discovery. The more discovery you do, the more prepared the defense becomes. We often choose not to depose the defense experts, even in medical malpractice cases, and rarely depose the defense medical examiner. First of all, it costs money. Second of all, it’s time out of the office. Most importantly, it gives the expert a test run of cross and prepares the defense expert for your case. Consider these factors when deciding who to depose.
Rule 6: Focus on what it takes to lose your case. Negative conclusions and attitudes held by jurors can’t be eliminated by rhetoric, metaphors and analogies. Even bad defenses can have legs. Find out what your landmines are and figure out fixes. This is a good time to do another focus group. Once discovery has started, you find out landmines for your case. Use focus groups to find fixes for those landmines.
Rule 7: Develop takeaways. All discovery needs takeaways that will support your case. All discovery needs to have a purpose; it really cannot be random or, as Rodney Jew likes to say, “drive by” discovery. Takeaways include: showing a lack of qualifications for a specific job, establishing what the rules of conduct are, establishing violations of those rules, establishing the standard of care, establishing the conduct by the defendant and that the conduct is an intentional disregard of the rights of the plaintiff.
Some examples. In a nursing home case, there was an issue concerning the transfer of a patient. Plaintiff contends two aides were necessary, the defense contends only one was needed. There was only one aide assisting with the transfer, and the resident fell, breaking both of her hips. At deposition, the following takeaways were obtained in the deposition of the CNA who did the transfer, both as to the number of aides needed to transfer and the lack of staffing.
21 Q She couldn't transfer herself, could she?
22 A No.
23 Q And you would always use two people and a lift
24 when you transferred her?
25 A Always, yes.
1 Q That was what was supposed to be done, right?
2 A That's the way we were always taught, yes.
16 Q And as part of that training, were you trained to
17 never leave the patient alone when you were
18 moving the stand away from the patient?
19 A Yes.
20 Q Did you think that you had enough help on that
21 second shift in terms of transferring patients?
22 MR. BUDZINSKI: Object to the form. Go
23 ahead and answer.
24 BY MR. SCOPTUR:
25 Q You can answer.
1 A No. Most of the time I think there could have
2 been more help.
3 Q Did you ever complain about that to anybody?
4 A I have said it to the nurse that was on duty,
5 even.
6 Q Right. So you made some complaints to other co-
7 workers about it?
8 A I have said something.
9 Q And did they ever add more staff in regards to
10 that shift?
11 A No.
12 Q Did you think that it would have been -- strike
13 that. Was it sometimes hard to do your job
14 because of the lack of staff?
15 MR. BUDZINSKI: Object to the form.
16 BY MR. SCOPTUR:
17 Q You can answer.
18 A At times it wasn't easy when you were working
19 with -- when you have so many residents and you
20 only got so many staff to do the proper job.
21 Q And if you would have had more staff, then you
22 could have transferred -- well, strike that.
23 Sometimes you would only use one person to
24 transfer even though you were supposed to use
25 two, right?
1 MR. BUDZINSKI: Object to the form.
2 BY MR. SCOPTUR:
3 Q You can answer.
4 A Yes. I guess for some people they would want you
5 to do it with one person, but it's more -- better
6 for the person when you have two.
7 Q It's safer too, isn't it?
8 A Safer, yes.
9 Q But sometimes because of the lack of staff, even
10 though you should be using two people to
11 transfer, you were forced to use one on occasion,
12 right?
13 MR. BUDZINSKI: Objection. Form.
14 BY MR. SCOPTUR:
15 Q You can answer. Go ahead.
16 A I guess they would want you to use one person at
17 times.
18 Q Because of the lack of staff?
19 A Because -- Yes.
11 Q Okay. Then it says, "Had been transferred onto
12 bed with EZ Stand with one assist." Did I read
13 that correct?
14 A I believe so, yes.
15 Q Okay. And she should have been -- she should
16 have had two assists, right?
17 A Yes.
18 Q And is it your belief that the lack of help was a
19 reason that you only were doing it yourself, as
20 opposed to with another staff member?
21 A Yes.
1 Q If you had the EZ Stand available to you, would
2 you then sometimes use one person and the stand
3 to transfer the patient?
4 MR. SCOPTUR: Object to the form.
5 A Even if I -- Even if there was an EZ Stand, most
6 -- majority -- most of the time I would use two
7 people because it's safer.
5 Q Do you remember whether you had asked for help in
6 transferring Ms. Kosobud on April 4th, and more
7 specifically, at the time of the fall? Had you
8 asked somebody for help prior to that?
9 MR. SCOPTUR: Object to the form.
10 A Yes, I did ask for some help before the process
11 was -- to do the process itself.
12 BY MR. BUDZINSKI:
13 Q What process?
14 A Of using the EZ lift to...
Rule 8: Get concessions that support your case. Make the defense witnesses your witnesses. In the same nursing home case, the Director of Nursing was deposed, and the following concessions were obtained as to a breach of the standard of care.
10 Q. Well, you said she could be safely
11 transferred with one person in the E-Z
12 stand, but on April 4th there was one
13 person and the E-Z stand and she
14 wasn't safely transferred, was she?
15 THE WITNESS: Can I consult
16 with you?
17 MS. KIESLING: No, we can't.
18 If you can answer the question, go
19 ahead. If you don't have an answer to
20 the question, then, tell Attorney
21 Scoptur that.
22 THE WITNESS: I cannot answer
23 that question.
24 EXAMINATION
25 BY MR. SCOPTUR:
1 Q. Why?
2 A. Because I was not present at the time.
3 Q. Well, you know what happened, right?
4 She slipped off the bed and broke both
5 her hips, didn't she?
6 MS. KIESLING: I'm just going
7 to interject with an objection as the
8 witness has testified she knows what
9 happened in some respects based on
10 conversations she's had.
11 As she stated, she was not in the
12 room and so may not know all the
13 circumstances surrounding the incident
14 and that may or may not contribute to
15 her response to this particular
16 question.
17 MR. SCOPTUR: Okay but you can
18 let her say that.
19 MS. KIESLING: Sorry.
20 MR. SCOPTUR: You don't have to
21 speak for her, Carley.
22 MS. KIESLING: Okay.
23 MR. SCOPTUR: That's an
24 inappropriate objection and you know
25 that too.
1 EXAMINATION
2 BY MR. SCOPTUR:
3 Q. It's your understanding that she slid
4 off the bed, right?
5 A. That was what was reported.
6 Q. She broke both of her hips, right?
7 A. That was what was reported.
8 Q. Do you consider that to be a safe
9 transfer?
10 MS. KIESLING: I'm going to
11 object to the form of the question.
12 MR. SCOPTUR: That's fine. You
13 can answer, ma'am.
14 THE WITNESS: I cannot answer
15 that specifically the way you're
16 stating it because I was not present.
17 EXAMINATION
18 BY MR. SCOPTUR:
19 Q. Why not?
20 A. I was not present.
21 Q. Based on what you know, was that a
22 safe transfer or not?
23 A. If she -- no, it was not.
24 Q. One of the jobs of a CNA in your
25 facility in 2002 was to provide for
1 safe transfers, correct?
2 A. Correct.
3 Q. That's also true of your LPNs?
4 A. Correct.
5 Q. And also true of your RNs, right?
6 A. Correct.
7 Q. This LPN what was her -- strike that.
8 This CNA, what was her name?
9 A. Mary.
10 Q. Do you know?
11 A. Mary Malthe.
12 Q. Mary. You would agree with me that
13 Mary did not provide a safe transfer
14 for Ms. Kosobud based on what you know
15 about what happened, right?
16 MS. KIESLING: I'm going to
17 object to the form again. You can go
18 ahead and answer.
19 MR. SCOPTUR: Sure.
20 THE WITNESS: No, she did not.
21 EXAMINATION
22 BY MR. SCOPTUR:
23 Q. In fact, she provided an unsafe
24 transfer, didn't she?
25 MS. KIESLING: Object to the
1 form.
2 THE WITNESS: I just answered
3 that question, didn't I?
4 EXAMINATION
5 BY MR. SCOPTUR:
6 Q. Well, I said it a little bit
7 differently this way. It was unsafe,
8 wasn't it?
9 MS. KIESLING: Object to the
10 form. You can go ahead and answer.
11 THE WITNESS: Yes.
12 EXAMINATION
13 BY MR. SCOPTUR:
14 Q. And providing an unsafe transfer for a
15 resident is below the standard of
16 care, correct?
17 MS. KIESLING: Object to the
18 form of the question.
19 THE WITNESS: Yes.
Rule 9: Ask about jobs. Jurors can relate to jobs, we all have one, whether it’s being a parent, a worker, a teacher. Ask witnesses about their jobs, and more importantly, what qualifies them to do their job. You may be surprised.
13 Q Well, what qualifies you to be safety
14 coordinator?
15 A What qualifies me?
16 Q Yes.
17 A I was appointed the position by the vice
18 president of operations at the time.
19 Q But, I mean, what qualifies you to do that job?
20 A What qualifies me?
21 Q Yeah.
22 A Probably not a whole lot.
23 Q Well, does anything qualify you for that, other
24 than the appointment?
25 A The appointment?
1 Q Yeah.
2 A Well, I looked up -- when I was given -- Before I was