The Plaintiff’s Deposition — Be Smart and Be Prepared

Your attorney has told you that your deposition has been set by the defendant’s attorney (make sure the date and time are good for you — you should have been consulted about this before it was set, but if for some reason you need the date and time changed, the sooner you speak up the easier it will be). You are nervous. You don’t know what to what to expect. You don’t want to screw it up. These feelings are natural. Take a breath and read on. By the end of this article, you should feel more comfortable with what you need to do to give a good deposition.

What the Heck is a Deposition?

Your attorney should let you know what a deposition is and what questions to expect. However, if you still don’t know, a deposition in its most basic form is a series of questions the defendant’s attorney asks you to answer under oath which are “reasonably calculated” to lead to evidence admissible in your case. The most common places for depositions are either at your attorney’s office or at a court reporter’s office — you aren’t going to court just yet. There will be no judge present.

The court reporter is hired by the person taking the deposition to create a written transcript of everything that it said during the deposition word for word. She (or he, but I’ll use “she” because I’ve met far more female than male court reporters) is not an advocate for either side. She has no dog in the fight. Her only job is to administer the oath (e.g., “Do you swear to tell the truth. . .”) and write down everything you and the attorneys say during your deposition. She uses a coded shorthand on a machine that looks like a tiny typewriter. If you were to look at what she is typing directly, it would look like gibberish. Rest assured, she can read it. Think of the court reporter as just a human tape recorder (no offense, court reporters).

The usual set up for a deposition is a conference table with you seated directly next to your attorney and opposing counsel seated across from you. The person/people you are suing have the right to be present at your deposition (though they won’t participate directly). Don’t read anything into them being there or not being there. There are plenty of reasons why parties would want to show up at depositions. My best advice is to ignore them. There are only two people to which you need to pay attention: your attorney and the attorney deposing you — in that order.

Can My Attorney Feed Me Answers During My Deposition?

No. If you are confused as to what a question is asking, ask the defense attorney to rephrase it. If you think that an answer you will give may involve the attorney-client privilege, you may consult with your attorney about the privilege issue before answering. Your attorney cannot give you answers, even to stupid innocuous questions. The deposition is based on your knowledge and memory alone, not your attorney’s.

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What Should I Wear to My Deposition?

For most plaintiffs, I recommend dressing “business casual”. Keep the jewelry and perfume/cologne to a minimum. Don’t go tanning. You don’t want to dress too nice, as you may look ready for a job interview, which is a message many plaintiffs don’t want to send.

The Defense Attorney Seems So Nice!

While most people have been conditioned from television and movies to believe that opposing counsel will be openly hostile to you at all times, this hardly ever occurs in real life. In fact, the best tactic a defense attorney can use in taking your deposition is to be as nice as possible to you. Why? To get you to talk more, of course. Expect a smile, a nice handshake and a “nice to meet you” when you are introduced to the defense attorney. The defense attorney may even joke around a bit. Be nice and cordial back to the defense attorney, but keep repeating the following in your head once the deposition starts:

1. This person is not my friend,


2. We are not having a conversation.

Settlement tip

Number 2 is particularly crucial. A deposition can quickly start to feel like a conversation, with each side talking, occasionally laughing, and the defense attorney seeming genuinely interested in everything you have to say. The only problem with conversations is that people tend to start to volunteer information, which you absolutely do not want to do in your deposition. No matter how nice the defense attorney seems (and it may be genuine), never forget why you are there.

The Defense Attorney is a Jerk!

If you are unlucky enough to be deposed by a posturing buffoon who insists on trying to get a rise out of you with every question, the best antidote to this is to not give him what he wants.

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As a general rule, you do not want to appear angry or frustrated at your deposition. Avoid sarcasm (which may not translate well in a written transcript, anyway). You want to come across as the sympathetic victim that the jury would want to compensate. You don’t want to come across as the foaming-at-the-mouth lunatic on COPS last night who wound up getting tased.

Why Am I Being Deposed?

There are three main reasons a defense attorney deposes a plaintiff:

1. The defense attorney cannot speak to you directly once you have an attorney, so this will be his only chance to directly question you before trial.

2. The defense attorney is not only evaluating your answers, but how you will be as a witness at trial. Are you likable? Do you come across as honest?

3. It is much harder to lie or conceal something during a deposition, where follow-up questions can trap you should you choose to go that route.

Can’t the defense attorney get all the info he needs from my medical records, accident report, interrogatory answers and document production?

For the most part, yes, and know that the defense attorney will have all of these things before your deposition. However, the three reasons I just listed above still apply, and nothing beats getting your answers directly from the source.

Your Deposition is Not Your Time to Tell Your Story

Most plaintiffs erroneously believe that the deposition is their chance to tell their side of the story. Wrong! The deposition is the defendant’s chance to find out as much information about your case as possible. If the defense attorney fails to ask you about something that you consider important, great! You can volunteer this information at any time after the deposition, or wait until trial and surprise him.

I am not advising that you withhold information in response to a question which has been asked. I am advising you to not volunteer information if a question has not been asked. Your day to tell your story is at trial, when your own attorney will be asking you questions, not at your deposition.

What Should I Review Before My Deposition?

At a minimum, you should review your Complaint (the document your attorney prepared to kick off the lawsuit), your interrogatory answers (written answers to questions submitted by the defense attorney which you signed under oath), and the accident report, if there was one. Notice I said “review”, not “memorize.” Mainly, you want to double-check and make sure that there are no errors in these documents which will require correcting or explaining during your deposition. If you find any errors, let your attorney know immediately. It is always better to correct these before the day of your deposition.

If everything you’ve reviewed is accurate to the best of your ability, great. It should be much easier to remember then, as the truth always is.

Your attorney should have a meeting with you prior to the day of your deposition to prepare you and let you know of any areas of particular concern that may be specific to your case. For example, if you had a prior injury to your body before the accident in this lawsuit, be prepared to talk about that.

How Long Will My Deposition Take?

This varies from case to case and most often depends upon the style of the defense attorney. Some are more long-winded than others and feel the need to explore seemingly irrelevant areas of questioning at length. Expect that it will be at least two hours, with most lasting between 2-4 hours. People with more complicated medical issues or histories can expect it to be longer than that. This is a question even your own attorney may not be able to answer, unless he is familiar with opposing counsel.

The Worst Thing You Can Do in a Deposition : Lie

No matter how foolproof or elaborate you think a lie may be, the odds of you eventually getting caught — given all the tools available to opposing counsel during litigation — are higher than you think. The risk of being caught far outweighs any benefit you may receive from lying under oath. If you are caught lying under oath you can expect your lawsuit to be dismissed and you could possibly incur monetary sanctions (like the other side’s attorney’s fees). If you exaggerate your injuries, expect that surveillance will catch you doing something you claimed you couldn’t do. Lawsuits can take years to resolve. It is awfully difficult for someone to consistently fake difficulty walking, lifting, etc. over such a long period of time. Aside from surveillance, what will your friends, neighbors, co-workers, etc. say about what you can and can’t do? There are far too many ways to get caught. For example, do you think former President Clinton ever imagined that Monica Lewinsky would keep her blue dress with all of its DNA evidence preserved?

Most plaintiff’s attorneys can work with the truth about your physical condition to recover you a fair settlement or judgment. No plaintiff’s attorney will be able to save your bacon if you get caught lying in your deposition.

I do want to draw a distinction between “lying” and “saying something that turns out to not be true.” If your memory is incorrect, like thinking that your accident happened on a Saturday when it in fact happened on a Sunday, this is easily corrected. Of course, this brings me to my next topic.

The Second Worse Thing You Can Do in a Deposition: Guess

Guessing during a deposition should be avoided at all costs. Guessing most often happens when a Plaintiff is asked a question to which he would feel embarrassed not having an answer. For example, “How long were you at the red light before you were hit from behind?” “What color was the defendant’s car?” “What was the substance you slipped on at the grocery store?”

Get over your fear of feeling stupid for not having answer to what seem like simple questions. It is far better for you to say “I don’t know” or “I don’t remember” than to simply guess and be wrong. If you were to say that the color of the defendant’s car was black, when it was really canary yellow, that inaccuracy will call into question your entire memory of the accident. When you admit to not knowing something, it improves your credibility as to those facts you do remember.

If you are asked to guess, estimate or “ballpark” something during a deposition, make sure you’re answer includes the fact that this is what you are doing: “I’m not 100% sure, but I’d estimate that I was sitting at the light 5 seconds before the defendant hit me.”

Dealing with Inaccurate Records

More often than one would think, inaccuracies find there way into accident reports, medical records, or other written records. These can be as benign as getting a date wrong to as severe as stating that you weren’t wearing a seat belt (when you were) or that you have a prior injury, which you don’t. Do not be intimidated by inaccurate records.

Frequently, the defense attorney will stick one of these records under your nose during the deposition and ask you to explain it. “Now why would Dr. Jones say that you were an unrestrained driver? Where would he have gotten that information, if not from you?” The easiest way to deal with these records is to stick to your guns as to the facts and not try to explain records that you didn’t create: “I told Dr. Jones that I was wearing my seat belt, because I was. I have no idea why he would write, ‘unrestrained.’ It must be an error.”

Unfortunately with medical records, errors that occur early in the treatment have a habit of being repeated in later records, as the doctor takes facts from earlier patient histories and includes them in later ones. So if the doctor writes “unrestrained” on your first patient visit, it’s probably going to be repeated over and over (and maybe even by other doctors who took their histories from the first doctor’s records). Don’t let this dissuade you from telling the truth in your deposition. Your attorney can straighten the issue out with your doctor after the fact, and hopefully have your records corrected.

Videotaped Depositions

If you are told that your deposition is going to be videotaped, don’t worry. There are many reasons for a defense attorney to do this which may be entirely unrelated to your case. Some firms videotape all plaintiffs’ depositions. Some insurance adjusters want to be able to watch your videotape so that they can personally size you up as a witness.

The video deposition can actually be your friend. A defense attorney is much less likely to behave like a jerk on videotape. Just remember not to pick your nose.

Former Defense Attorney Tricks

As a former defense attorney, I’ll fill you in on two of my favorite tricks when deposing plaintiffs:

1.  “The Silence Game” – After a Plaintiff is done answering a question, I’d wait for 10-15 seconds (usually I’d pretend to be looking at my notes) and see if the Plaintiff would spontaneously start talking again. It worked with alarming regularity. This trick preys on people’s natural aversion to awkward silences. Silence has pressure, and it makes plaintiffs want to fill it. Don’t fall for this. If you’re done answering the question, and the defense attorney is silent, let him sit there until the awkwardness makes him uncomfortable enough to ask another question. If your deposition is not videotaped, there will be no record of the silence. The written transcript will make it appear that you just gave one long answer without any break. Don’t play the silence game.

2.  “The Surveillance Game” – A partner at the defense firm I used to work for gets credit for this one. The defense attorney goes to the deposition with many folders, one of which is clearly marked “Surveillance”. It does not contain surveillance reports. Rather, it just contains a few random typed papers. At an appropriate point in the deposition, the defense attorney conspicuously pulls out the “surveillance” folder and asks the plaintiff to tell him everything they did the preceding weekend, all the while pretending to compare the answers to the junk in the folder. This ruse is just to discourage the plaintiff from lying about any physical activities he may have engaged in. It works fairly well, as the plaintiff is scared to death about leaving anything out. So just be aware, not every “surveillance” folder is surveillance.


You will be nervous before your deposition starts. Even attorneys get nervous when they get deposed. You should calm down quickly when it starts and you get into the groove of answering questions. Keep in mind that the deposition is not an endurance contest. You can ask for breaks at reasonable times (1 10-minute break per hour is not unreasonable) so you can use the bathroom, smoke, stretch, get refreshments, or whatever. If you have an injury causing low back pain, or anything which makes you uncomfortable during the deposition, let the other attorney know. Tell him that you will need to shift/stand or whatever makes you feel comfortable at times during the deposition, and that he can keep going as long as you don’t ask for a break. There’s no rule that says you have to sit for your whole deposition (though it is courteous to do this if it doesn’t cause you discomfort).

Final Note – Always Read and Sign Your Deposition!

At the end of the deposition, the court reporter will ask your attorney if you want to read and sign your deposition or waive that right. Let your attorney know you want to read and sign! What this means is that after the written deposition transcript is prepared, you will get the opportunity to read it and correct errors. Many people (and some lawyers) believe that this only applies to errors made by the court reporter. Not true. You can change any answer which you later realize is incorrect or incomplete. Note, however, that changes to your own errors will appear on a page at the end of the deposition, known as an “errata sheet.” The original answers will remain, but you are much better off making an early correction to your deposition than you are waiting for this error to surface at trial. If you change something important, like adding an injury, the defense attorney may want to depose you again on that subject alone, as he was not afforded the opportunity to do so at the first deposition.

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128 Responses to The Plaintiff’s Deposition — Be Smart and Be Prepared

  1. kim says:

    Well, my day in the hotseat is next Friday, the 4th. Having gone to all the defense depos, I know the attorneys, and feel as confident as one can in a situation like this. (no, they are not my friends!) I just hope it does not take over one day! They will not have had time to review our discovery responses by then, since they waited until the very end to get into the game. Trial is set for the 14th, and it is the 3rd re-set, so will probably be a “go.” We are getting our docs to them on Tuesday! Any advice on how to control facial expressions? I have a horrible poker face! Have tried biting my tongue, concentrating on abdominal muscle contractions, etc….any other ideas?


    • fl_litig8r says:

      Botox injections before the depo? 🙂 If your depo is being videotaped (which is the only reason to worry about facial expressions), hopefully the presence of the camera will be enough of a constant reminder to try to keep your expressions under control. You could also try negative reinforcement leading up to the depo. Wear a thin rubber band on your wrist and try to control your expressions leading up the depo. When you goof, snap your wrist (not too hard). Try saying angry things in the mirror while not showing your anger.

      As long as your tone remains fairly neutral, that should make up for any facial expression faux pas. There’s nothing more infuriating than arguing with someone who keeps their calm and talks softly while you’re losing your shit (I learned that lesson at a young age from my evil older sister). Make it a game if the defense attorney raises her voice or becomes especially rude to be as polite and calm as possible — see if you can get her to shout. Point out when she’s getting angry so that it appears in the written record, e.g., “Please don’t raise your voice [use that tone]. I’m not trying to upset you. I’m just trying to answer your questions.” Let her beat on you while you just suffer through it — don’t fight back. Jurors punish bullies. Come to think of it, you may want to save some of this for trial. Just use the depo to practice a bit.

      • kim says:

        Well, they got yet another re-set (4th one!), and then postposed the depo. Looks like I’ll be a plaintiff forever.

        • fl_litig8r says:

          I really wish judges would be less generous with continuances, especially after the first one. I get the feeling that many just want to clear their dockets and think that the more a case is continued, the more likely it is to settle. It just adds to the public’s negative impression of the justice system.

          • kim says:

            Thx for the support. I’ve been offered a job with my lawyer IF this ever ends, (and if I can afford what will probably be a pay-cut), and was sort of looking forward to it. Difficult to believe that someone can know everything there is to know about me and still want to hire me. LOL!

          • fl_litig8r says:

            Maybe it’s your self-deprecating sense of humor that won him over. 😉

  2. Diane says:

    Hi again just like to ask a few questions, frist of all my Attys met with the other attys on June 19th the outcome of this one is that the Judge order another depo for me on Aug 2. This is the thrid one. My lawyer stated that it was because I had a second surg to my right Ankle in April 2012 and the judge also ordered another IME. I want to knew what different questions will they be asking me then the other two depos and will I have to go over again the questions from the very beginning of this case. The judge ordered the next hearing for Sept 25 2012. When will they talk settlement? This case as been ongoing since April of 2009. Also My doctor stated that I can only work partime not fulltime anymore( i’m a nurse and the injury was to my rt ankle)
    will that benefit me?

    • fl_litig8r says:

      Typically, “update” depositions will only cover new issues — in your case, that would be your medical treatment and condition since the last deposition. However, whether the defense lawyers will delve into areas they could have covered at prior depositions will depend on how much leeway your lawyer and the judge afford them. I wouldn’t expect them to try to cover the same things they did during the first and second depositions. First, this would be highly objectionable (“asked and answered”) and the judge would probably limit the scope of the deposition if your lawyer needs to involve him. Second, there’s no real reason for the defense lawyers to waste time covering things that have already been covered.

      As to when they will talk settlement, that won’t be until after your third deposition and the new IME, at the earliest. This, of course, is assuming that your treatment is finally done and you’re finally at MMI. Neither side can accurately value your case until that happens.

      With respect to your doctor limiting you to part-time employment, this should help increase the value of your case, especially if this is a permanent limitation — cases involving a permanent disability are clearly more valuable than those involving a temporary disability.

  3. kim says:

    Well, just got off the stand. Confused about what they did NOT ask. We provided 10,000 pages of docs, no questions about those, or the covert recordings i provided, or about the psychological impact of their actions. I don’t understand the lack of questions in these areas????. Unless they think they have a slam dunk for summary judgment (not likely) and can question me again sometime after that?

    My attorney said i did well. It is not easy to stick with the game plan. The urge to tell the story is strong. And it actually got to be fun answering only the question that was asked and forcing them to keep rephrasing to get the answer to the question they were meaning to ask!

    Thankfully they used the lady, and not the man. He is charismatic, and would have had better luck. She has been standoffish from the first time I met her, and this lack of personality worked in my favor!

    Mediation this Monday. Cross your fingers…….
    thanks again for being here!

  4. Diane says:

    Can you please answer additional questions for me on my Case. One important question is that in regrads to MMI. What if the injury I have never gets any better then what it is today. What Happenns if my doctor just keeps sending me for therapy but I dont heal is that going to drag the case on. Second Question in regrads to my past W’2’s what is the timeframe that They ask back and to what year after do they ask for and whats the purpose of this?

    • fl_litig8r says:

      MMI doesn’t mean that you’re completely healed, or that you won’t need further treatment. It just means that you will have no significant improvement from future treatments, though future care may be needed to maintain your current level of health. So, there will come a point where your doctor determines that you’re not going to get much better, even if further therapy is warranted. Sometimes reaching MMI can take years, especially in cases like yours involving multiple surgeries. It will happen, though.

      For your second question, I refer you to this article.

  5. Diane says:

    I was just told by my attys that the motion on Sept 12th is for the defendants to try to get out of the settlement. The defendants are the city of NY and they tried this before, after my frist Surg. My attys already provided proof that they are involved. Is there anything I should worry about. I feel in a pothole in April of 2009. Can they be discharged from the case after all this time.

    • fl_litig8r says:

      Without seeing the motion and the alleged grounds for it to try to get out of the settlement, I can’t even speculate as to the likelihood of the motion being granted. Typically, it is very difficult to get out of a settlement, absent fraud (and sometimes “mutual mistake”), so unless the city has one doozy of a reason, the odds are against it.

  6. Diane says:

    I’m sorry I misled you in saying The city of Nyc settled already in my case what I meant to say is that. The city is asking for this motion on Sept 12th To get out of the lawsuit that I filed against them for falling in a pothole in April of 2009. Can they get out of the suit or is this just a another delay to settle. I dont know if your aware of the Pothole law in NYC. Like I said they tried this before my second surg or after my frist surg, it seems like everytime I have a surg they do this what can you as an atty think they would won this motion and if they do what next? I’m also suing A gas company for the actual work that was done and the city for the pothole. Please clear this up for me and to the best of your knowledge again do I have anything to worry.
    Thank You

    • fl_litig8r says:

      I doubt that the City is using the motion just as a delay tactic, mainly because there are so many ways to delay a case that don’t involve the amount of work required to request summary judgment. I’m vaguely familiar with NYC’s pothole laws, and from what I’ve read there are two attractive grounds under which the City could ask for summary judgment. First, if the City did not have prior written notice of the pothole, it isn’t liable. Second, a 2003 law changed primary responsibility for many New York sidewalk potholes from the City to the adjacent landowner. Without knowing the specifics of your case (which I’m not asking for) or the basis of the City’s motion, I couldn’t say whether it is proceeding under one of these two arguments. If it is, then it could win, assuming the facts support either argument.

      So, I can’t say you have nothing to worry about. However, I’m sure your own lawyer is aware of these major hurdles and has a much better feel for the City’s summary judgment chances.

  7. Judy says:

    I am being deposed next week. Can I record it? Can I video it?

    • fl_litig8r says:

      If you really want to do this, you should immediately cross-notice the deposition and include the fact that you will be video/audio taping it. If someone will be manning the video camera, you likely have to disclose who the person is on the notice. Your state rules of civil procedure may have the specific things you need to list to set a video deposition in its general deposition rule. Your state may not allow unlicensed videographers to tape depositions — my state of Florida allows anyone to do this, as long as they are identified on the notice.

      To cross notice the depo, basically copy all the information on the defendant’s depo notice (changing the title to “cross notice” and add “videotaped” before the word deposition). Then change the info about who is noticing the depo to you and add any information you need to regarding the person videotaping it (if it will just be you setting up the camera and letting it record, list yourself).

      However, before you do this, I’d advise against videotaping your own deposition. It’s more likely that the defendant will wind up using the video than you (you will have to copy it for him if he requests it). To me, it sounds like you’ll be handing the defendant a gift — a video depo without the extra cost of the videographer. The only reason I’d even think of videotaping your own depo is if you expect the attorney to be a complete ass (most won’t be), and you want video proof of his antics to show a judge should you decide to suspend the deposition due to his harassment — suspending a depo is something you’d only do in extreme cases, as doing it without good cause could result in you having to pay for the continuation of the depo at a later date.

      I wouldn’t video it just for your own use. Audio recording would be safer, if that is your reason. You’d still want to cross-notice the depo for audio so that the defendant can raise any objections before the date of the depo. If you just try to video or audio record it without prior notice, you could wind up in hot water with the judge.

  8. lostbunny says:

    I had my depostion and it was rough. This was my first time being in a deposition. I felt like a dear standing in the street with headlights coming my way. My plaintiff attorney sent another attorney from the firm I never saw before who showed up 15 minutes to define what a deposition is, etc and my reports. I came to the site 40 minutes early. I was so nervous and never knew all the personal questions that they can ask. I told the truth but felt each question asked was peeling off a layer of clothes. So I went in full dressed and came out naked. Im makeing jokes now but during the deposition I was serious.
    I have a question for you, At the beginning of the deposition the defense attorney asked if I had taken any medications before the depositon. I stated the medications and then the defense attorney asked if the medications would effect my testimony. I said no but I believe the medication did effect my testimony. I looked up the side effects of both medications and both of them is trouble concentrating. Why did the defense attorney ask me this questions?

    • fl_litig8r says:

      He asked about the medications to prevent you from later claiming that the medications affected your testimony. If you chose to “read and sign” your deposition, you can change any answers that you feel were incorrect or incomplete. However, this may result in the defense attorney deposing you again to ask about the changes.

      If you didn’t choose to read and sign and still maintain that your answers were affected by your medications, know that telling the defense attorney this may also result in you being re-deposed. So, be sure that you want to go that route before discussing this with your lawyer. Just because your medications list possible side effects that may affect your ability to concentrate doesn’t mean that you were not able to give an accurate deposition (most people find it difficult to concentrate during depositions due to the stress alone). If, after reading your deposition, you see some huge errors that need correcting, it may be worthwhile to make this an issue. Otherwise, you should probably leave things as is.

      • lostbunny says:

        I froze in the deposition and could not remember or answer the questions. My mind drew a blank. I could not think. Once I saw the picture of the incident. I shut down.
        By the 3rd hour, even after breaks, I could not even look at the defense attorney when they asked a question. I would close my eyes and try to think it through and answered with my head down and spoke to the table as I tried to answer the question. Even as hard as I tried nothing would come out. I would say right now I do not recall. Even when my attorney asked something in the end. I wasn’t sure.

        I trully wished I would have read your website before the deposition. In the end the defense attorney asked the court reporter if she needed to go over any corrections with me. The court reporter said no.
        My attorney did not say or ask if I wanted to go over the transcript. He left out of the room to make a phone call. Did not mention it. So this was not mentioned.
        I need to use Google alot more. Thats how I found your wonderful website. Thanks.

        • fl_litig8r says:

          Well, the court reporter doesn’t get to make the “read and sign” decision for you. If you or your attorney didn’t waive it, you should have him contact the court reporter to let her know that you do want to read and sign. I wouldn’t panic before actually reading the transcript. You may have done fine. If you didn’t waive reading and signing, changes can be made to your answers without too much difficulty, though the original answers will remain for reference and you may have to explain your changes if the defendant wants to re-depose you as to why you changed your answers (and any followups that might result from such changes).

  9. lostbunny says:

    I sit in a wheelchair and the deposition was over 4 hours long. At the end is when the meat of describeing the incident and I could not concentrate for the likes of me? I was tired, in some moderate pain, had defense repeat stuff. Out of it, usually when I take the medication I take a nap.

    • fl_litig8r says:

      As I said in my response to other question, you should really review the deposition transcript to decide whether you want to make this an issue. If you were getting tired or experiencing pain, you could have asked for a break in the deposition (usually 15 minutes or so) to try to get yourself together. If you were still unable to go forward after a break, they might have agreed to continue the deposition at a later date. It may be that you didn’t know you could do this, given that your lawyer didn’t adequately prepare you for the depo, but if you bring it up now, it will look suspiciously like you are just trying to get out of answers with which you are unhappy. You need to decide whether your answers were so off that you need to make this an issue, after reading the deposition and talking with your lawyer.

  10. d mays says:

    my soon to be ex wife and her attorney scheduled a deposition and then they didn’t show up. In fact no one was even in the office. I wrote up a letter stating these facts and had them notorized and witnessed at a tax firm directly next door to her lawyers office. I also called the office number and spoke with the receptionist who said she was out of the office. She took my message and that was it. The receptionist called the next day and said she was out sick like it was her fault no one was there. She said that they were going to have to reschedule. I am thoroughly irritated. My time is also valuable and want to know what my recourse is.

    • fl_litig8r says:

      Unfortunately, it’s unlikely that there’s anything that you could do that would be worth your time. If you had a lawyer, there’s an outside chance that you could ask for reimbursement of the attorney’s fees you incurred for the deposition. Even this would be less likely in the event of a mistake, as opposed to an intentional act. From what his office told you, it sounds like he’s already got an employee willing to take the blame for the “scheduling error”, so proving that this was an intentional “no show” sounds unlikely.

      As far as your own time is concerned, lay witnesses are not compensated for the time they miss work to give a deposition, even when they’re not parties to the legal action — parties themselves are not compensated unless they are subpoenaed (which is usually not necessary as they are required to attend or risk being sanctioned). So, even if you could make the case that you are entitled to compensation for the no show, it would likely only be at the standard lay witness rate, which is usually only between $20-30 (per day), plus cost of travel.

      Unless you have some proof that the lawyer intentionally no showed just to jerk you around, or that this no show is part of a larger scheme of discovery violations (e.g., he does this again), I doubt that it would be worth your time to pursue this. I’m not saying that this is fair, but from my own experience, courts rarely sanction lawyers for what appears to be an honest mistake.

  11. Rick says:

    Question: I am the defendant in an auto accident in WA state. My wife was injured (my fault for the wreck) and is suing me.

    My attorney was hired by the insurance company and has kept me in the dark (I’m sure intentionally) on every aspect of this case. I’m to be deposed in the next 2-4 weeks by the Plaintiff’s attorney. The attorney hired by my insurance company has in very innocuous ways inferred that I will lie to help the plaintiff. This is a very untrue statement.

    My question is this: Can the attorney appointed to me ‘coach’ me or somehow force me into not telling the truth during my deposition?

    I’m an honest 45+ man with an income well into the $150k range and the lawsuit will yield my wife far less than my annual income. So the ‘money grab’ idea was tossed out when I provided my past 7 years of IRS statements.

    Thank you.

    • fl_litig8r says:

      No, your lawyer can’t force you to lie to hurt your wife’s case. As to his suspicions about you, lawyers are by nature a distrustful lot. It doesn’t matter how much money you make. Millionaire celebrities shoplift. Martha Stewart took advantage of insider trading. We expect that people will usually testify in accordance with their own financial interest — while this may not involve outright lies, we wouldn’t expect a husband to give completely unbiased testimony about his wife’s car accident, or volunteer information that might hurt her case. Don’t take it personally, and don’t worry about what your lawyer thinks. As long as you tell the truth under oath, you’ve done your part.

  12. dana wolfe says:

    I have not been arrested for a felony in over 10 years.My criminal history consists of possession of a firearm,assault w/ a firearm and dissuading a witness.I’m not proud of this.

    Almost 3 years ago my brother in law went through a painful divorce,from a real toxic woman and an adultress among other things.They have 2 daughters,8 and 5, our nieces.I met them both in 2009,a little less than a year before their mom was caught cheating and I was introduced to them as Uncle Dana(by their mom) because ofcourse my wife is their blood aunt.

    So for 2 years we would see our nieces every 2 weeks like clockwork,everything was cool.

    But last year the mother of our nieces filed a custody motion in child court stating that she wants her daughters to have no contact whatsoever with me because to the best of her knowledge I went to prison for murder.She swore under oath in a deposition and also to the court that I’m a murderer.

    As I mentioned before I have been to prison but not for murder,nor have I ever killed anybody,nor would I.
    My question is if I can prove that she lied in her deposition and to the court,what can I do?I would never harm a child in my life and I have no criminal history where women or children have ever been harmed.I’ve never even been left unsupervised in my nieces presence.
    One last question,is there any way I can possibly report her attorney [name removed by admin] to the state bar for not checking his facts
    before he slandered me?,Because after all,he’s the one who took the deposition.

    • fl_litig8r says:

      I’m not a family lawyer, so I really can’t speak as to the likelihood of the mother succeeding in barring you from seeing the children.

      As to her testimony that you are a murderer, the context and exact wording of her statements will matter significantly. If she claims that you were actually convicted, that it easily disprovable and would be possible grounds for a slander suit (I say possible only because most lawyers won’t take these cases unless you can show significant economic damages from the statements). If she is expressing an opinion that she believes you got away with murder, that is a much tougher slander case to make. Just think of O.J. Simpson: acquitted of murder charges but still accused and found liable for wrongful death in a subsequent civil suit. Is he a murderer? While technically not a convicted murderer, would it be slander to call him one in light of the wrongful death suit? Also, look at Casey Anthony, also acquitted of murder but still routinely called one by people throughout the country. Being acquitted, or even not charged (a la Ray Lewis) with murder is not proof that one is not, in fact a murderer.

      That being said, if you are willing to testify as to the facts of her allegation (as the above-mentioned people likely would not), you could in theory sue for her for slander. Again, a lot of this depends on the specific nature of the allegation and whether it is expressed as opinion or fact (opinions are generally not slander).

      As to suing the lawyer or filing a bar complaint, I can’t imagine such a suit or claim prevailing. A lawyer is entitled to believe his client and is not required to do an extensive investigation trying to disprove her claims before submitting them to a court. You’d need to show that the lawyer had actual knowledge of the falsity of these statements to even have a chance at bringing such a claim.

  13. vic says:

    Great website…..Could you please answer a question for me?
    I found a lawyer to represent me in a federal case…after reviewing the documents and info he asked me if I want to proceed with his representation in exchange for a flat fee of $550 and a third of settlement in order for him to draft the agreement. I agreed and sent him the money and additional documents….after that I never heard from him despite the e-mails and phone calls…..Due to the fasting approaching end of statute of limitation, I filed pro se and sent him an e-mail to cancel any actions in the matter as soon as the complaint was delivered by mail to the court to prevent double filing. I asked him for a return of my money and he said he would return the fee minus postage to return my documents. I received my documents and and agreement that he wants me to sign that I will release him from any liability. i am sure he is afraid of malpractice lawsuit ….What can I do in this case?? I can retrieve my money if I go to my bank and file a complaint….


    • fl_litig8r says:

      First, I suggest you find another lawyer ASAP. Federal court is no place for a pro se litigant. I know lawyers who are afraid to practice in federal court because the rules tend to be a lot less forgiving than state court and oral arguments on motions are rare, making it especially important to be able to argue effectively in writing.

      As to your former lawyer, I suspect that he’ll pay you back regardless of whether you sign the agreement not to sue him. I have a feeling that this is his not-so-subtle way of finding out your intentions regarding that without having to ask you directly. So, the question is — do you intend to try to sue him? If you do, then don’t sign the agreement and see if he’ll still pay you before going to your bank with the matter. You could threaten to take the issue to the state bar if he doesn’t pay you back. If you don’t intend to sue him, then signing the agreement is the probably the quickest way to get your money back.

      Know that good legal malpractice cases are pretty rare, as I discussed in this article. For example, in your case if you fired your lawyer before the statute of limitations ran, he has a really good argument that he didn’t commit malpractice — he still could have filed in time had you not fired him. Even if you fired him after the statute ran, the fact that you filed your own complaint creates an issue as to what damages you suffered due to him not filing. While his sending you a release of any malpractice claim might indicate to you that he thinks you have a good case, in reality it is just that lawyers are paranoid about these things and want to avoid even the possibility of a malpractice case when they part with a client under bad circumstances.

      • vic says:


        Its easy do do a bad thing and tarnish someone’s reputation, so I choose to focus on my main problem…I am trying to find a different lawyer for my case ( I am in Florida, 1200 miles away from court) while, in parallel I am preparing my case for myself. I have 120 days to serve them and I am confident that with so many info about previous cases on internet, I am focusing on the fine line I have to walk. I have some experience as a PRO SE, ( should have taken judges offer last time !)and plenty of time since I am physically disabled but with a clear mind and no lawyer will be able to better present my case than myself just like no doctor knows what I am going thru. I gave up law school in Europe in order to come to USA 20 years ago. Also got my user id and password to e-file docs. I am sure I can beat them at their own game and I firmly believe in Justice. They failed to respect an agreement that ADA had with them… I was a manager, responsible for properly applying the laws and policies, yet, they treated me like a piece of dirt when I got sick due to a manager I had and I was successful in firing her for discriminating me using Company’s procedures. Funny is that the manager that I complained about terminated me during the investigation process using someone else s password with no written approval from home office. I appealed my termination with no success…they did not give me my final check until after I filed an EEOC complaint in MIAMI about 10 months later and even that check was short…..and they wondered if I had a lawyer. I have good witnesses and plan to use them….great info by the way in how to avoid deposition tricks and use the witnesses I also found on PRO SE manual for NY Dist Court.
        I have a question for you: Amending my original complaint can I attach exhibits and ask for summary judgement?
        While I cannot promise any donation to your website yet, I have a great witness up there who knows my intentions and pray that justice will prevail. Thanks much.

        • fl_litig8r says:

          I rarely give advice so specific on this website, but with respect to your plan to add exhibits to your complaint and move for summary judgment, I will — don’t do it. First, you should really only add exhibits to a complaint if they are absolutely necessary to meet the notice pleading requirements (like attaching a contract in a breach of contract case). Exhibits become part of the complaint, giving the defendant additional grounds for a Motion to Dismiss (without even having to resort to summary judgment). From a strategic standpoint, you really want to plead the minimum amount necessary to avoid a dismissal.

          If you want to use documents in support of a summary judgment motion, there’s no need to attach them to the complaint. You can file them separately using a Notice of Filing (you do this concurrently with filing your motion). This way, you get the benefit of using the documents in your argument without incurring the downside of having them become potential grounds for a motion to dismiss.

          Filing a motion for summary judgment so early doesn’t seem to be a good strategy to me, anyway. The court is unlikely to grant such a motion before the defendant has received your initial Rule 26 disclosures, much less had a chance to perform any meaningful discovery. Also, you’re telling the defendant exactly what his witnesses need to say before you’ve had a chance to lock down their testimony via deposition. If they file affidavits (which the attorneys will draft for them) opposing your motion, you won’t have any deposition testimony from the witnesses to use to dispute their affidavits. I think you’d be showing your full hand way too soon, with little possibility of the motion being granted before the defendants have a chance to perform some discovery.

          So while, in theory, you can move for summary judgment so quickly, in practice I doubt that it has much chance for success — not without having to go through the discovery you might hope to avoid by trying to win so quickly. Because you’ll likely be required to participate in some discovery before the motion is considered, why not wait to file your motion until you’ve had a chance to lock them into their own testimony?

          On an unrelated note (and you may already know this), be sure to get a copy of the “Local Rules” for the district court you’re in (you should be able to download them from the court’s website). These rules will supersede parts of the standard Federal Rules of Civil Procedure, and will likely add a bunch of procedures not found in the standard rules, such as rules for motion practice. You don’t want to miss a deadline because you were following the standard rules instead of the local rules.

          • vic says:

            Thanks again sir….

            You are better than any lawyer I met.

            Let me know please if you have published any books or if you will in a near future. I will buy them 100% guaranteed. A book written by Donna Ballman truly opened my eyes and perspective.
            do you thing that ADA will come up with a Statement of Interest in my ADA case? If they do, I think my chances to settle out of court will increase since I can demonstrate that I established prima fascie in my ADA case.


          • fl_litig8r says:

            I have no plans to write a book. I have a hard enough time coming up with new article ideas for this website.

            As far as your question, I think what you’re asking is whether it is likely that the EEOC will intervene in your case. This happens in very few cases, so I would say the odds are overwhelmingly against it. I also wouldn’t get too optimistic about your former employer wanting to settle any time soon, at least for a reasonable amount. Employment discrimination cases are often received with great hostility in federal court, and summary judgments for the defense are granted with higher frequency in these types of cases than in most others. Add to that the fact that you’re proceeding pro se, and I would say you’re in for a tough fight, no matter how good the facts may be in your favor.

  14. Ruth k. Williams says:

    I’m involved in a medical malpractice law suit on behalf of my husband in n.y. My deposition has been postponed 4 times, I was just wondering how many times can the defense get away with this?

    • fl_litig8r says:

      If it appears that this is being done on purpose just to harass you, your husband’s lawyer could file a Motion for Protective Order which would bring this to the court’s attention. It could ask that the court order that any future setting of your deposition not be rescheduled without prior leave of court, or for some other form of relief.

      Of course, if the postponements give you plenty of notice (e.g., they aren’t telling you only 1-2 days before the scheduled date that they’re postponing it), it’s likely the court wouldn’t find anything wrong with them rescheduling your deposition, even multiple times. The defendant isn’t required to depose you at all, so unless it appears that he’s setting, canceling and resetting your deposition just to inconvenience you, and not for some other legitimate reason, there isn’t much that can be done.

  15. vic says:

    Hello again …..I have a question….I know you’re not my lawyer, but I wish I found a lawyer just as good as you answering questions in an excellent fashion and timely manner.
    I have to file a first amended complaint in a discrimination case…..the original standard court form was not lined on the side nor numbered. Could not find this info on local rules either…..what is the standard please…..I can go either way with the templates I have. Also is a great website that instructs how to build a complaint that will resist a motion to dismiss. Thanks again.

    • fl_litig8r says:

      Well, I don’t know where you saw a standard federal court form complaint that didn’t have numbered paragraphs (that’s really required so the defendant can respond to each allegation separately in its Answer), but I would recommend either Googling to try to find a complaint that was actually filed in the district court you’re in, or signing up for a PACER account (it’s really pretty cheap — you pay a few cents per page) and downloading one from the district court directly. PACER lets you search for cases using a number of different factors, so you could search by attorney and look for your local employment discrimination lawyers to help you find a sample case. I’m not going to give you detailed instructions on how to draft a discrimination complaint in federal court, but having numbered paragraphs which separate your assertions (and separate counts for separate claims) is really something basic. If you’re struggling with this already, I’m going to reiterate my suggestion that you try to find another lawyer to represent you. It just gets harder and more complicated after your complaint is properly filed.

  16. vic says:

    Thanks again Sir……I was refering to one inch left side double line and 1-28 numbering……Original discrimination complaint form standard for the court had paragraphs but no lines on left nor 1-28 numbers.
    My hopes in finding a good lawyer 1200 miles away, with good moral and ethical principles are slim to zero. Everybody seem to be in the hurry and don’t even ask me if I have a disability, an essential step in establishing prima fascia….There is no perfect case for anyone, takes a bit of elbow grease and dedication. And I know I have a good case based on previous cases I am researching and the evidence I have, that would have got me in big legal trouble if I was doing it against someone else. And there is no possible way a lawyer will alter the law in order to dismiss my evidence. I would not let them, yet shine the light for the judge to see. I know, its a long fight, but I also know what rights i have in order to defend them with plain and simple federal rules.
    Your website is also a spring of information for whoever is thirsty and one day will donate for it but I don’t want to brag

    • fl_litig8r says:

      I’m not sure what “double line” you’re referring to, but if you’re thinking that the court wants two vertical lines going down the page at one inch from the left margin, that’s not something I’ve seen federal courts require and such a requirement would have to implemented via local rule. I’ve seen many local rules impose margin, line spacing and font requirements for filings (through local rules), but I’m not familiar with any federal courts requiring actual lines to be drawn down the left margin. How were you told that this was required, and what specifically were you told?

  17. LA says:

    I showed up for my depo with my lawyer, my ex and her lawyer (who has been unethical in the past) were also present at a court reporting service that offers conference rooms and supplies court reporters. When I got there they said they were “waiting for the reporter to arrive” then my ex’s lawyer asked if we could speak off the record my lawyer agreed and my ex’s lawyer proceeded to offer some ridiculous settlement offer and suggested we forego the depositions (mine & hers scheduled back to back), my lawyer and I declined and when we went to check the status of the reporter my lawyer looked in the book and there was NO DEPOSITION scheduled! When we questioned the receptionist, she said they were “still trying to locate the reporter” This is a company that supplies reporters and hosts depositions how come they couldn’t get another one? So shady, especially since this place is in same building as my ex’s lawyer’s office! It was clear opposing counsel canceled the reporter as he thought I’d be foolish enough to settle and being the person my ex is he clearly doesn’t want her deposed. Can her lawyer be sanctioned for this sham? It cost me legal fees and a day off of work with no pay! Now I’m going to have to take another day off of work AND pay for my lawyer’s time to prep AGAIN and show up AGAIN!

    • fl_litig8r says:

      I’m a bit confused as to how neither deposition was scheduled. Didn’t your lawyer set your ex-wife’s depo? Do you have any proof that your ex-wife’s lawyer canceled the depositions, as opposed to this just being a screw-up by the court reporter’s office? If you do, then sanctions could be requested for the fees you incurred (and possibly your lost pay/leave time). If you don’t, then the court will probably accept the excuse that this was a scheduling error by the court reporter’s office, and there’s nothing that can be done about that (don’t expect the court to order the court reporter’s office to pay).

      • LA says:

        Thank you for your quick response! I thought the same thing about my lawyer’s responsibility, but just figured that he was going to use the same court reporter that was hired for my depo. Was my lawyer supposed to schedule a separate court reporter for my ex’s depo?

        • fl_litig8r says:

          He wasn’t supposed to schedule a separate court reporter. Using the same one as opposing counsel is typical. However, your lawyer would have to schedule the deposition separately with the same reporter, which should have meant that at least one deposition was on the court reporter’s books (your ex-wife’s). Of course, the other lawyer may have told the court reporter to cancel both depos and she may have believed that he wouldn’t cancel another lawyer’s depo without his consent — something that shouldn’t happen, but conceivably could. It just makes it unlikely that the court reporter’s office made a simple scheduling error and failed to schedule any depos — I could see it happening for one deposition, but two depos set by two different lawyers seems unlikely. It appears that they were canceled. What does the court reporter’s office say? Were they ever scheduled?

          • LA says:

            I figured as much. No I haven’t contacted the court reporting company yet. I figured they wouldn’t be forthcoming with what actually transpired if I asked. Remember they told me “they were trying to locate the reporter.” I’m not sure how to pose my questions without putting them on the defensive. Any suggestions? Thank you again for your input! This is a great website, and a tremendous resource!

  18. LA says:

    UNBELIEVABLE! I talked w/the reporting company and they said the lawyers arrived at the same time and had a discussion. The depos weren’t on the books but she summoned a court reporter who arrived at the same time I did. Although neither lawyer acknowledged to me that she was there, I was taken back to a room. Opposing counsel told the court reporter to “sit tight” but that she wouldn’t be needed for the afternoon depo (my ex’s), and he would let her know about the morning depo (mine). He then went out after an hour and told her they wouldn’t be needed her and that opposing counsel (my lawyer) agreed to be invoiced for her appearance fee! When he came back in he said the reporter didn’t show up! I am blown away that my lawyer lied to me! He agreed to cancel my ex’s depo without discussing it with me, and even though I repeatedly said I am here and ready to be deposed he just said that there’s no depo if the reporter is not here! He is a partner at a VERY prestigious well known law firm! I’m just in shock right now! It is clear that it is a “boys club” in Daytona Beach! I have a conference call with my lawyer tomorrow and I’m going to listen to his explanation before I unleash the facts I’ve just been told. Do you have any words of wisdom for me? I want to go off on him and file a complaint with the Florida Bar! Isn’t my lawyer supposed to be loyal to me? Isn’t he bound by model rules of professional conduct NOT to lie to me? I want to handle this in a way that doesn’t cost me my case. I thought I hired the best lawyer and most reputable firm in Daytona. I don’t even know where to start in finding another lawyer at this point!

    • fl_litig8r says:

      This is a really weird situation. First, the fact that neither depo was scheduled is odd (unless the court reporter’s office screwed up, which doesn’t seem to be the case here). Second, the fact that they’d summon a court reporter if they had no intention of taking the depos anyway (unless that was a show put on for the clients, or the court reporter’s office did it without the lawyers requesting it). Third, that your lawyer would tell you that a court reporter wasn’t available (which kind of ruins the point of #2).

      I just don’t see the point of the lawyers lying to you and your ex-wife just to get you together at a court reporter’s office to make a settlement offer. Why not just schedule a mediation and avoid the subterfuge? Did your lawyer even recommend to you that you take their offer? If not, then this makes even less sense to me.

      I have a hard time believing that this was done just to needlessly run up billable hours, because actually taking the depos would have resulted in more hours billed that day (and it’s not like there aren’t enough cases for the lawyers to bill their future hours to if they are both from good firms). I really don’t understand the point of the whole exercise, unless your lawyer was really pushing for you to take their offer — I can see the lawyers possibly thinking that their clients might be more willing to settle with the pressure of imminent depos hanging over them (relying on cold feet). If your lawyer wasn’t pushing for you to settle, then I’m really at a loss as to their motivation for not taking the depos.

      Without knowing more about why this all happened, I can’t say whether your lawyer did something worthy of a bar complaint. Lying to you about the availability of the court reporter might not be enough to land him any hot water with the bar unless there was something else going on as well, like trying to needlessly rack up billable hours for doing nothing or colluding with your ex-wife’s lawyer to try to force an unreasonable settlement upon you. That’s not to say that I approve of lawyers lying to their clients. I just think that the bar would be more concerned about something more serious and detrimental to your case, like fraudulent billing or a conflict of interest. Without knowing the “why” behind the lie, you don’t know the extent of the possible ethics violation. Strangely enough, the rules of professional conduct more specifically forbid a lawyer to lie to the court (Rule 4.3-3) or to third parties other than clients (Rule 4-4.1) than they do lying to a client himself. In fact, there is no specific prohibition against lying to a client. Instead, it would need to be inferred from other duties owed, like Rule 4-1.4(3)‘s requirement to “keep the client reasonably informed about the status of the matter”.

      It may not pay to play cat and mouse with your lawyer on the phone tomorrow, basically waiting for him to compound his lie before revealing what you know. That won’t give you any more insight into why he did what did, and may just make the situation more adversarial than it needs to be. I’d suggest just telling him that you were concerned as to why the depos were not taken, and after contacting the court reporter’s office you learned that there was a reporter available to take your ex-wife’s deposition who was sent away at his request. Why did he do that? Put him on the spot, but don’t be coy about it. I can’t think of a good reason for him to do this, but maybe he has one. Then decide whether to allow him to continue to represent you based on his answer.

      • LA says:

        You’re exactly right, none of it makes sense. I agree that playing cat and mouse is not the way to go. I’m going to ask him point blank why the depositions didn’t go forward. Funny thing is I requested a copy of the invoice for the “appearance fee” and I got an email from my lawywer’s paralegal stating they received a call from the court reporting co. that I wanted a copy of the invoice and she wanted me to know that my lawyer “paid it out of his personal funds.” Now they know that I discovered that there WAS a court reporter there, AND my lawyer paid her appearance fee. The conversation will be interesting, now that he’s had all night to figure out how to spin this! I will let you know how it goes. Thanks for your insight!

  19. EJ says:

    I was involved in a rear end collision when I was stopped waiting for traffic to turn. The defendant,while looking at his cell phone, missed the fact I was stopped. I could see he was not going to be able to stop. He was going about 30 mph. Anticipating the impact I braced both arms on the wheel and put both feet on the brake. There was minimal damage to my car. Both cars were drivable. While waiting for the police report my left arm began to tingle and hurt. I went about my business but by that evening I was in a lot of pain. I visited an urgent care the next morning and was given pain meds and told to return if it wasn’t better. I returned 2 weeks later and was sent to Physical Therapy for about 12 sessions. At the end of therapy I was told to follow up with an orthopedist in 3 months if I was still having pain. I saw the Ortho. An MRI Was done, surgery was recommend and completed. I sent all bills, medical records and a demand letter. Medicals are $37000 and lost wages were $2500. There first offer was $500, their second offer was $1500. This is when I retained a lawyer. The defendant was 100% at fault. Insurance is claiming that there was so little damage to the vehicle that there was no way the accident caused my torn rotator cuff. They have since upped their offer x two but now I have attorney fees to cover. We are getting ready for discovery. My lawyer said we have a good case. I am worried about the minimal damage. High school physics can explain bodies in motion and forces. What are you thoughts on low damage claims? Thanks in advance for any info you can provide.

    • fl_litig8r says:

      This is a pretty common tactic by insurers — to claim that a plaintiff’s injuries must be directly proportional to the amount of damage to the vehicle. It works better for them in soft-tissue cases, where the type of injury is not demonstrable using objective medical testing, because it appeals to the natural (and often incorrect) assumption by jurors that an accident with minor damage to a car couldn’t have hurt the plaintiff too badly. In your case, with a provable injury (via MRI) and a surgery afterward, I wouldn’t be as concerned about this defense unless you had previously received medical care for the shoulder. As long as you can show that you had no shoulder pain before the accident (by the absence of prior medical care for that shoulder) and you had pain due to a torn rotator cuff immediately afterward, your argument seems more appealing to the lay person. Now a jury thinks “that injury had to come from somewhere, and the timing sure points to the accident”, making the abstract argument by the insurer that “the physics makes it unlikely” seem rather desperate. Barring proof of a preexisting shoulder injury, your case sounds really solid to me.

  20. vic says:

    Hello again,
    After serving the party in federal court, their counsel called me to see if they can extend the answer time by about a month, saying that he just got the case and needs to do an investigation…. I agreed, he sent me a stipulation to sign and send back…He made his appearance in the court (Received NEF with appearance notice and Disclosure…) and nothing else on the docket…Now, the time has passed (21 days) and I never got an NEF with the Stipulated order, e-mail nor mail with proof of service…..If there is nothing on the docket, can I go for Default Judgement??? Thanks
    P.S. I did not forgot about the donation to your website….

    • fl_litig8r says:

      While technically you may be able to move for a default (I assume you mean the 20 days for him to initially respond to the Complaint has passed, not the period of time with the month-long extension), I doubt that it would be worthwhile. Courts are very reluctant to enter defaults when a party has actually entered an appearance, and the fact that you agreed to an extension would demonstrate that you’d suffer no prejudice from the default not being entered (or being immediately vacated). I think at worst what would happen is a written scolding of the attorney for not timely filing the motion for extension. I can’t envision a judge entering a default (or not just subsequently setting it aside once he finds out about the extension) and a subsequent default judgment under these circumstances.

      It seems like moving for a default would be unnecessary work for you and would cast both you and the other attorney in a bad light with the judge — him for not filing a motion for extension and you for trying to get a default when you had already agreed to an extension. Judges hate having their time wasted with unnecessary procedural gamesmanship.

      Most lawyers in your shoes would call the other lawyer and see why he didn’t file for the extension. It will buy you some good will from the other lawyer, which helps down the road so you don’t spend the whole case trying to jerk each others’ chains. Asking for a default when you know it’s not going to stick will probably just earn you some unnecessary hostility (and future gamesmanship) from the other lawyer, making your case that much harder and unpleasant — and, as I mentioned, it will piss off the judge.

      I’d take the high road here, my friend. Just call the other lawyer and see what’s going on.

  21. vic says:

    THANKS MUCH !!!! for the advice…

    I figured out what happened:
    Today, I received in the mail an envelope from him. First page was attached to the stipulation and addressed to the case manager with a caption: HAND DELIVERY. He handed out the stipulation with signatures to her. I think the court clerk would have told him the right way to do it. Yet, the local rules says that he should have e-filed the stipulation as a PDF under “other filings” in CMEF (since I am pro se and electronic signature won’t apply), then he would have to submit the form as a Word document under proposed orders, in order to be edited and signed by the judge, resulting in an NEF after the outcome.
    At this point, that paper can be somewhere collecting dust until someone will realize the mishap. I don’t want to be the bad one but technically he failed to do it according to the rules, within the 21 days time frame for an answer. (time expired today at 00:00) I know, the judges hate technicalities and I am using this extra time to polish my amended complaint. The lawyer seemed a nice guy and after all he judge is there to decide in my case. I hope he would realize the facts and come up with a settlement offer.
    YOU, are an amazing person….
    Thanks again !!!!

  22. vic says:

    Your advice was great….Thank you !!!
    Got scheduled for a hearing on a motion to dismiss. (I mailed the Complaint on time but the clerk did file it 2 days after was delivered to the Court and 1 day past the statute of limitation. I filed a response with an affidavit saying that I mailed it and was delivered on time according to receipt and tracking number filed as an exhibit also, showing the timely delivery to the clerk). When the mail was delivered to the clerk, they had 10 inches of snow, schools and businesses closed but the court was open to public. Meantime I filed an amended Complaint with few essential exhibits and they moved to partially dismiss ( the same charge that was past the statute while the others were not since did not have to go to EEOC, but directly to court) for the same reason -was not filed on time-. I am pretty sure the judge will be fair and order the clerk to change the file date. I have to call the clerk to see if they keep the original envelope and that will prove it that got delivered on time. The lawyer soften up and they want to see if I am willing to settle. My question: Can I go for summary judgement after the hearing on motion to dismiss?? With all the exhibits I have and before the pretrial conference?
    My second question: If I retained a lawyer and failed to file on time can that spent time be considered equitable tolling? I also got proof that he got paid and never took an action.
    And how can I make a donation to your website??

    Thanks again !!!!

    • fl_litig8r says:

      Question 1: Technically, you can file for summary judgment at any time. Realistically, the court will allow the defendant time to do its own discovery before hearing such a motion.

      Question 2: Equitable tolling won’t extend a statute of limitations just because a former lawyer (or a current one, for that matter) failed to file a complaint before the statute ran. Lawyers often get sued for malpractice for missing a statute of limitations. If the court tolled the statute of limitations while a lawyer was handling the case, it would render most statutes of limitations meaningless (and save many lawyers from malpractice claims). I think your best shot is to proceed as you are, proving that the clerk received the complaint before the statute ran, and merely failed to file it on the proper date.

      I don’t really accept donations. Thanks for the offer, though.

  23. vic says:


    I have a hearing on a motion to partially dismiss next month. meantime Defendant filed a reply to my answer to Motion to dismiss. They claim that I was not diligent in filing on time, questioning if I really retained an attorney, his name and what he did or did not.
    Question 1: Is it harmful to disclose e-mail communication I had with the attorney, since the fine print at the bottom of e-mail mentions confidentiality, attorney client privilege, privacy, attorney work, etc.?? I planned to have them shown in Court rather than file them. I have all e-mails, cancelled check for his fee that shows due diligence…
    Question 2: Should I file a motion for sur reply ( whithin 14 days of their reply) or wait for the hearing date, go to Court and present evidence to the judge? I am not sure if the Judge can rule on the motion with a scheduled hearing date, without me filing a sur reply.

    Thanks a million !!!!

    • fl_litig8r says:

      Are you sure you are going to have a hearing? In federal court, motions are often decided on the filings alone without a hearing, so I’d make sure that you actually have a hearing scheduled. If you have a hearing scheduled, you can present your evidence of your contact with an attorney at that time (you can even request that the judge’s review of the privileged documents be done in camera so that the defense attorney doesn’t get to see them). I can’t say whether disclosing your communications with the lawyer would be harmful because I don’t know what the communications say. Generally, it’s a bad idea to disclose these things to the other attorney. One thing you can do for the time being is file an affidavit swearing to your contact with the lawyer and generally supporting your prior claims about how he didn’t file anything. This may obviate the need to ask for leave to file another reply, as you’d just file the affidavit through a Notice of Filing. With nothing from the defense to dispute your sworn account of events, the judge would have to accept the contents of your affidavit as true. You may not even have to show the judge your supporting documents at the hearing if you do this (though I’d bring them anyway).

      This may all be for nothing, though, as I doubt that the court would extend your statute of limitations just because you had a lawyer who didn’t file anything. The defense attorney may just be jerking you around with his “due diligence” arguments with respect to the lawyer. I still feel that this will be decided on whether your complaint arrived at the clerk’s on time and was just filed late due to the clerk’s delay.

      • vic says:

        Thank you, GREAT ADVICE !!!!

        The case manager scheduled an R&R hearing for Doc #.. representing their motion after I answered their motion for partial dismiss.
        I was afraid that the judge will rule after their reply despite the fact that I had a hearing date scheduled. I mentioned that I will bring documents in court for review rather than exhibit them, and defendant suggested sealing the exhibits. I feel confident about the judge since she is a civil rights watchdog, encouraging people “to know their civil rights and not forget that the courts are there to serve them.” I learned that a good lawyer knows the law and a better lawyer knows the judge. You saved me some frustration preparing for a sur reply, when actually there is nothing but repeating of arguments.
        Thanks for the affidavit tip. People are paying dearly for advice they get that is not even close to yours in any way !!! in camera advice?? FABULOUS !! You are a blessing in disguise!!!!
        Will let you know how it goes, after the 22nd, next month.
        I have a feeling that they will want to settle and get me on their side since the person who caused my discrimination is also suing the defendant (and they don’t know it yet absent service)saying that she was terminated as a pretext. I actually had an honest formal complaint against her, they investigated and terminated her. Before she got terminated, she terminated me in retaliation, using someone else s login credentials. And I have proof for that !!!!

        THANK YOU !!!!!!!!!!

        Thanks again !!

      • VIC says:

        Hello there,
        Had the hearing with the judge and everything went smooth. Same issues were presented in the oral form. Judge asked me if I have the proof of mailing and delivery to the clerk of court in the docket and she was satisfied with the answer. For now the matter is under advisement.
        NOW, today the weirdest thing happened. I received an NEF initiated by the Clerk of Court named “Return of Service of Document unexecuted.” This document is an apparent answer to a request by the defendant lawyers from a 3rd party CO that manages accidents and injury claims for the defendant saying that they have no info about any claims history that I made. Apparently instead of being mailed to the lawyers office ended up at the Clerk who filed it. Now, the worst part is that the documents are not redacted as per the Federal rule and exposes all my personal info including the SSN and DOB. I am sure that is a mistake but the damage is done….And is not the clerks job to redact sensitive info.
        What is your advice in this matter?

        Anticipated thanks….

        • fl_litig8r says:

          I’d call the clerk and see about getting this fixed (removed from the docket). Unless someone was specifically looking at your case on PACER, I doubt your information was seen by anyone outside the case yet. It’s not like it’s posted openly on the Internet, so it wouldn’t come up in a Google search. If the clerk won’t do it, file a motion with the judge to either have it removed as improperly filed or have it sealed.

          • VIC says:


            Well, its almost 2 months since I had the hearing for statute of limitation issue and almost one month since the motion to redact I had to file as suggested by the clerk. Defendant was not happy that I filed the motion, yet my info was out there; they responded and agreed that the document was filed in error and should be removed from docket. On a previous motion I had to file to remove an incorrect entry, the judge answered in 2 days…..
            Now, the defendants agent responsible for my termination who got fired for discrimination acts, also filed a lawsuit against the same defendant, who has the same counsel and different judge assigned (public info). Their counsel don’t expect me to know about it. That case was streamlined and there is already a scheduling order in place, within 2 months of the initiated complaint. On their discovery plan defendant counsel are telling that she was terminated for discrimination acts against a subordinate (me),exactly what I claimed in my complaint and I don’t know if they discussed a relationship to another lawsuit (mine) at the conference. Do judges talk in between them about related cases? The impression that I have is that my judge is waiting for the other case’s progression but I may be wrong. Would discovery plan they presented be admissible as an exhibit if I go for summary judgement at a later time? Basically I don’t think they can tell one judge one thing and another thing to my judge.They did not answered my amended complaint yet, filed about 4 months ago. They used the “motion to partial dismiss” loophole to delay their answer.
            Thanks for your input…
            HAPPY HOLIDAYS !!!

          • fl_litig8r says:

            Their discovery plan wouldn’t be admissible in your case. They’re allowed to make conflicting arguments in different cases, just like “pleading in the alternative” in the same case. However, once they start producing evidence, like affidavits, interrogatory answers or depositions from their employees that claim that she was terminated for discrimination against you, those things are fair game to introduce in your lawsuit. I’d wait for them to start generating some discovery in the other case before letting them know that you’re aware of it. You know what their argument is — you just need to wait for them to produce actual evidence to support it.

            I don’t know that the two judges are aware of each others’ cases.

            Happy Holidays to you as well.

      • VIC says:

        Hello there,

        The following link is a reflection of your guidance for which I am, one more time, grateful; [link removed by admin because it identifies the poster].
        After over four months, the judge made a favorable decision, by denying Defendant’s motion to partial dismissal based on equitable tolling concept. The judge really liked the facts presented in simple language; after all they are humans too. We are already scheduled for a conference sometimes next month.
        At this point, are they required to answer the Complaint since the judge did not mention that in the document?
        As I said previously, I have some documents proving wrongdoing and I also intend to use the discovery process ( interrogatories) to backup my complaint for the motion for summary judgement I intend to submit later on. For the (illegal) things that were said or done, can I use affidavits produced by witnesses for this purpose?
        The affidavit is a really powerful tool…..
        Your guidance is greatly appreciated !!!

        THANKS A MILLION !!!!

        • fl_litig8r says:

          Under Fed.R.Civ.P. 12(a)(4)(A), the defendant has 14 days from the date of the order to file an answer to your complaint.

          You can use affidavits either in support of your own motion for summary judgment or in opposition to the defendant’s. This is pretty much the only way you’d use them, as they would not be admissible at trial. For strategic reasons, I’d think long and hard before filing your own motion for summary judgment. Plaintiffs rarely win such motions (and you’d still need to prove damages at trial anyway, so you’d really only be able to get a partial summary judgment at best), so you’d be doing a lot of extra work when you probably should be focused on opposing the defendant’s inevitable motion for summary judgment.

  24. Just The Facts says:

    I was just thinking that this could be abused by lawyers asking questions that don’t need to be asked.

    What would be a proper responce for any questions that don’t need to be asked?

    • fl_litig8r says:

      The standard for whether a question can be asked in a deposition is not whether it “needs to be asked”. It’s whether it might reasonably lead to admissible evidence (not that the answer itself doesn’t have to be admissible — it merely has to have the possibility of leading to admissible evidence), which is extremely broad. Generally, the only time you can legitimately object to a deposition question based on relevance is if it is being asked solely for the purpose of harassing the witness, which is an extremely high bar to meet (and should be used only in the most obvious of cases).

  25. stopthepain says:

    Hello fl_litig8r, this is a wonderful service to folks hurting, thank you! Here is my issue- I was a professional, six figure world traveler and was badly hurt in a auto accident a few years ago then another, far worse about a year later. No more world travel and wonderful job offers since, only chronic disability, pain, dizziness, surgeries, etc. The defs hired men with disturbing arrest records follow and video tape me and upon seeing them point their camera at me my severe PTSD was triggered and I could not sleep for days reliving a robbery as well as both collisions. I told my psych about it who said I have to get the insomnia under control because the stress could cause me to “stroke out”.

    The trial has been postponed 4 or 5 times and the defendants have scheduled a video taped deposition in a few weeks. I told my attorney that I cannot handle the videotape and I am afraid it will set off the PTSD again but he told me I have no choice. Do I? I think it is a travesty of justice that the slime bags representing the ones who took my life from me can force me to relive trauma over and over, and it be “ok” legally, even when they’ve admitted guilt. Also, can I videotape the defendants attorneys and videographer while they question and tap me? can the defendants use the video tape publically for any reason, or for training other legal personnel?

    • fl_litig8r says:

      Your lawyer is right. The defendant isn’t doing anything unusual by videotaping your deposition (or by ordering surveillance). Because you’re the one who filed the lawsuit and you can choose to drop it at any time if it gets too stressful, no judge is going to preclude a defendant from engaging in standard litigation practice just to accommodate your PTSD. Maybe if the defendant were doing something out of the ordinary just to trigger you, you’d have a shot, but I don’t see that happening here.

      • stopthepain says:

        Thanks for the response! The reason I filed in the first place was to get the insurance company to pay my injury bills. They at first refused because they said my health insurance should cover the injury bills. My health ins co said they would not pay because my injuries were auto related. I had to retain an attorney to get the bills paid. I cannot drop the suit because I now have several hundred thousand in medical bills. So to add to my pain I now have insomnia because some criminals are following me around.

        Can the defs use the video publically for any reason unrelated to the suit (as in post it on line)? Can I video tape them deposing me?

        • fl_litig8r says:

          I didn’t mean to imply that you weren’t justified in filing suit. Far from it. However, a judge won’t hamstring a defendant’s ability to defend the case for the simple reason that ultimately it is the plaintiff’s choice to sue, and if litigation becomes too trying for him, he can drop the lawsuit. Nothing the defendant has done in your case seems unusual so far. Surveillance isn’t fun for anyone, but as long as the person conducting it isn’t approaching you or intentionally creating a scene to embarrass you, the court will permit it.

          With respect to your deposition video, by default they aren’t confidential, so in theory the defense could put it out there for anyone to see if it wanted to. This is restrained somewhat by ethics rules which place limits on lawyers attempting to use publicity to influence a trial outcome (usually by polluting the jury pool). I have never seen lawyers do this with regular people’s depositions (as opposed to celebrities), so I don’t know that it should be a big concern to you unless you’re famous. If you have a legitimate reason (more than mere speculation) to think that they would try to inappropriately use your video deposition, your lawyer could ask for a protective order which limits the use of the deposition to litigation matters. I doubt that most judges would enter such an order without good reason, though, so don’t think they’ll grant one purely as a proactive measure without any prior bad behavior by the defendant to justify it. There are first amendment issues which need to be considered.

          I doubt that you’d be allowed to videotape the videotapers, if that’s what you’re suggesting, mainly because doing so would serve no legitimate purpose in the litigation. If you want to hire your own videographer to tape your deposition, you can. Typically, only the person being deposed is in the frame, but if you wanted a wider shot that included the defense attorney, I see no reason that wouldn’t be allowed.

          • stopthepain says:

            Thanks for the response!

            I am not a celebrity, however those depositions go into EXTREMELY personal financial and health information as well as PII (SSN, DOB, etc) and in putting a video “out there” anybody can learn your personal business and that can hinder many things such as employment. The PII can be used for identity theft. I am concerned about those as my life has been reduced so heavily by the injuries I don’t want to lose what little I have left. I don’t see any justice here.

          • fl_litig8r says:

            This particular concern you have really has no bearing on whether the deposition should be videotaped. The defendant could just as easily release a transcript of your written deposition containing this information. Surely you’d agree that such a fear can’t form the basis for prohibiting a deposition from being transcribed.

            At best, you could ask for a protective order regarding certain types of information you give the defendant through discovery, such as your social security number. See my June 10, 2012 comment following this article for suggested wording for such a protective order. Note that another user responded to my comment saying that she asked for such a protective order and the judge granted it.

  26. stopthepain says:

    Fl_litig8r, thank you for the response. I read your other article and the other user’s response, this is such a great site for folks who have been injured.

    Can a protective order also cover financial information (such as income or loss) and certain extremely personal medical conditions unrelated to injuries? The types of things that you don’t want future potential employers (or anybody) to see.

    • fl_litig8r says:

      A protective order can cover lots of different things. It really boils down to reasonableness and rests almost entirely within the discretion of the judge. The court will weigh the risk of something private being made public versus the interests of the public in having access to court records. For things like social security numbers, bank and tax information, you have a pretty good shot at having those sealed. Medical information that is unrelated to the claim, if it can be segregated from relevant information, would probably also be a good candidate for a protective order. Some courts will seal all medical information. Note that when I’m referring to protective orders in this context, I’m talking about those which keep this information from being filed openly with the court or used for purposes other than litigation, not orders that would keep it from opposing counsel. Those are only granted in pretty extreme situations.

  27. Lisa says:

    Hello. Thank you for providing info to the masses. Med mal suit with a host of other tort horrors. Solid case, just too complex and expensive to pursue, attorneys have told me. They all believe in me but there’s a vast graveyard of cases brought by attorneys that were dismissed… The objection that a question is being asked to annoy or embarrass, is that relevant to a depo? At what point do you call it quits and ask to reconvene? As the plaintiff, will I be allowed to depose the small army of people on the other side or will they only get to depose me? I’m learning the rules, surrounded by books, and read case law daily. One question I can’t find the answer to is: what happens at the first hearing after you file suit? Thank you again.

    • fl_litig8r says:

      You can object at a deposition to questions that are designed to annoy and harass a witness, but it should only be done in clear and extreme circumstances. Just to give you and idea of how rare it is, I can’t remember a single time I’ve ever done this in over 15 years of practice. Even if the question is uncomfortable to answer, as long as it falls within the broad scope of discovery, it has to be answered. Of course, if the attorney starts yelling or standing up in an obvious attempt to intimidate a witness, that would be objectionable. If such behavior continues after an objection, that would be grounds for suspending a deposition to get a ruling from the judge. Sometimes this can be done by phone right at the deposition (often the threat of calling the judge is enough to stop this behavior). Sometimes (more often) not. Be very cautious about suspending a deposition, though. If you do it, and the court thinks you were wrong to do so, it will likely hit you with costs and likely the attorney’s fees for the other side for wasting their time.

      You can depose anyone you like. Of course, you’ll have to pay for it, which means a court reporter’s appearance fee and witness fee (usually a small amount like $20, plus mileage expense) up front and then the expense of transcribing the deposition if you want to order it. They can be very expensive, especially for the first person to order the transcript (the first usually costs about 3x as much as copies ordered by other parties). If you’re deposing an opposing party’s expert witness (a non-employee expert), you’ll need to make arrangements to pay them an hourly rate for the deposition as well, which can be very expensive.

      I don’t know what you mean by the “first hearing”. Usually there aren’t any hearings set until a motion is filed.

  28. Lisa says:

    I’m fee waiver eligible. Indigent rates are offered by some court reporters and of course you can only use one recognized by the courthouse. We had a recent opinion issued here about waiving fees for indigent folk and there were 20 Americus curie briefs in support of it.

    Once I give notice and file the complaint and the defendants answer there’s a hearing to determine the merits, correct? The whole prima facie and where you fight not to have anything dismissed on summary. I’m just curious what happens at the very fist pre-trial hearing.

    • fl_litig8r says:

      No, there isn’t automatically a hearing after your complaint and their answer is filed (unless you have some weird procedure that is particular to your state). There would be a hearing if they moved to dismiss, but if they just file an answer, you’d proceed with discovery without any court intervention. Later, after some discovery is done, the other side may move for summary judgment, in which case you’d have a hearing — but these things aren’t automatic. The other side needs to move to have your case dismissed or for summary judgement for there to be a hearing.

    • Ashley says:

      What state are you in? In Michigan, have been unable to find court reporters who offer indigent rates. Michigan fee waiver court rule has been strictly interpreted as court fees, not third party fees such as court reporters. The recent opinion you mention — is that court fees or court reporter fees? Was it a circuit court opinion or appellate opinion?

      • Lisa says:

        I’m baaack. For clarification, once you file you apparently get a case schedule and the judge will often ask for a status conference to make sure you’re on schedule.

        Courts have a list of approved transcriptionists that they accept transcripts from. They have to a an approved member. As many cases involve family law and other issues where people may not be able to afford to hire someone, several on the approved list will likely have a fee schedule that fits within your budget.

        So it’s not caselaw, it’s something that can be offered but I’m not sure the Court itself can order them to reduce your fee. A good argument for that might be if you’ve had your fees waived and in order to conduct adequate discovery you might need one for a deposition.

    • Ashley says:

      Lisa, I’d love to send you a brief I wrote regarding indigents, court reporter, and indigents. Free, of course, no strings attached. I am more passionate about this issue than I could ever express. It may give you a helpful direction to try. Can reach me at hollingashley at

  29. Lisa says:

    Law continually amazes me. It’s so much more complex than people imagine. I just figured a complaint would trigger an automatic hearing. One will occur at some point, because mediation is mandatory here, perhaps a protective order for some records, and we’re only allowed 20 interrogatories unless a judge allows more. Discovery will be an ugly beast if based on the interaction I’ve had with the other side so far. I love that you said sitting isn’t a requirement for a deposition, because I’m disabled and will need to be creative without being or appearing disrespectful. Thank you again for responding.

  30. Paul [last name removed by admin] says:

    I have two questions I hope you can answer. Back in March 2013 I filed a Federal Racial Discrimination case against my company. I hired my own attorney with the okay from EEOC, after filing complaint with EEOC (they refused my case). My attorney, from the beginning counsel with me said I had a case and required a $3,600.00 retainer fee to pursue it. Now, after the attorney’s were scheduled to present depositions, and they had not compiled anything yet, not even mine, they asked for a postponement. I spoke with my attorney a day prior to doing my deposition with the defendants attorney. He is now saying I should take a small settlement, that he might get for me, but I refused and told him I want my jury trial. He begins to explain to me that I might not have a case now and is telling me he will have to talk to the Attorney that owns the firm, and he continued to explain that the costs of calling my witnesses could be too costly to basically take a chance in a jury trial. My question is, “is my attorney and the firm liable to duly represent me in a court of law after I paid him my retainer fee, and find no relevant explanation to why he feels now that I have no case other than re-contemplating how much this could cost his firm. Can he legally back down from representing me now? Is this without prejudice and legal?

    Second question…I also had a lawsuit combined against my Union for discrimination. My attorney consulted me before they even took a deposition from me and said he spoke with the Unions Attorney and they felt I had no case against them and that they would settle for the court costs alone to that point…$2,000.00, less than what I paid my attorney for the retainer fee. He also advised me to take it because the Union told him they would motion that this case be dismissed and plaintiff pay all legal fees and court costs? I felt backed into a corner to do what my attorney said, so I folded and said okay, fine. Is my attorney trying to blow me off now by not taking my case to court, after repeating several times in the months of preparing that I had a good case? Did I have to fold and take that money? Or, was my attorney supposed to do what I told him to do and make sure I had a jury trial, or a substantial summary settlement? Is my attorney now failing to represent me because he doesn’t want to spend the money to take depositions from a multiple list of witnesses I have given him? Is this legal for him to do to me?

    • fl_litig8r says:

      Your lawyer is not required to take your case to trial. He can withdraw from the case entirely, if that’s what he wants to do (this requires court approval after a lawsuit is filed, but this approval is routinely granted). The fact that you paid some form of retainer doesn’t matter. If this retainer was not exhausted, you’d just get a refund of the unused portion.

      With regard to your second question, your lawyer may have included the union in the suit just to see if it would pay something. Because he was already suing the employer, adding a count against the union wouldn’t require much extra effort even if it was a longshot (which it sounds like it was). If your lawyer was concerned about the union getting a dismissal and being awarded attorney’s fees in addition to costs, it was probably a very weak claim from a legal standpoint. The $2,000.00 may very well have been a gift — nuisance value paid by the union to make the case go away instead of spending even more on further defense costs. As far as the depositions of the “multiple lists of witnesses” go, your lawyer doesn’t have to depose who you tell him to. If he doesn’t think that certain witnesses are worth the expense of deposing, you can’t force him. Whether this is malpractice depends on what a reasonable attorney in the same position would have done, among other factors.

      Lawyers’ opinions of cases often change from their initial impressions, because those initial impressions are usually based on the client’s representations. Clients typically paint their cases in the most favorable light possible when trying to hire a lawyer. When the lawyer digs deeper into the case, he inevitably finds flaws that change his initial rosy impression. It sounds like your lawyer is an associate who was cautioned by a partner in his firm not to waste too much time or money on your case — likely because the partner reviewed the case and thought that it was pretty weak and should be settled, if possible. If you force the issue of taking it to trial, they’ll likely withdraw from your case, leaving you with no lawyer and therefore, little chance of getting anything. Finding lawyers to take employment discrimination cases in the first place is difficult. Finding one to take over a case in progress that another firm withdrew from — especially if that withdrawal was predicated upon a client who insisted on going to trial — would be near impossible.

      The hard reality is that it sounds like the firm doesn’t have much faith in your case, and at this point settling for less than you want may be the best you can hope for. Trying to force a trial will likely end up with you getting nothing.

  31. Ashley says:

    A few weeks ago, responded (as plaintiff) to requests to produce with some well founded objections. Just received a notice for a deposition of me, including a request to produce documents at the deposition – identical to the first request. Opposing counsel has not said anything about my previous objections. (There has been no “meet and confer” or motion to compel over them.) Do I: show up at the deposition with written objections identical to the first; tell them now that their request is redundant and that I stand by my initial objections; or bring the requested documents to the deposition anyway? (I know the deposition rules state you have to answer questions despite objections unless over privilege/form/etc, but I’m thinking that doesn’t apply to producing documents at the dep.)

    • fl_litig8r says:

      If you already responded to the request for production prior to the deposition, that should be the position you take at the deposition itself. If they wanted to challenge your objections, they’ve had plenty of time to do so — asking again for the same things you’ve already objected to seems pointless. I wouldn’t even bring the documents to the deposition if you’ve already provided them to defense counsel (you can bring them and leave them in the car if you want a safety blanket).

      You are correct about the general rule against objections at deposition not applying to a request for production tied to a deposition notice. Treat the deposition and request for production as two separate things for objection purposes, because they really are. They’re just timed to occur together.

  32. Ashley says:

    Depositions are scheduled for both pro per spouse plaintiffs. Would you recommend the legal-minded spouse to under no circumstances cross-examine their spouse or themselves (using third person), only later using affidavits? Or, if there’s something that you’re urging to clarify, are there cases where you should do that during the dep? I’m taking it from your article that you wouldn’t advise going further — and actively cross-examining to get a lot of things on the record. (Also would love to know what you’d do in response to these questions, taking the “pro per” element out of it.)

    • fl_litig8r says:

      The only time I’d even consider asking questions of my own client at a deposition would be if she clearly misunderstood one of defense counsel’s questions and I needed her to clarify her earlier answer to avoid a lengthier explanation later (and possible re-opening of the deposition on that topic). This practically never happens, though, because if I think a question is misleading or that my client didn’t understand it and gave a bad answer based on it, I usually clear that up with an immediate objection or attempt to clarify the issue as it occurs. The latter practice may be considered a “speaking objection”, but sometimes they are necessary to serve the actual truth.

      Otherwise, I would stick by my general rule to not ask any questions of my own client at her deposition. It’s usually a very bad idea and serves no useful purpose.

    • Ashley says:

      Thanks! Sounds good.

      1 – The defense attorneys aren’t recording these Plaintiffs depositions by videotape or audio. In our state, we can choose to record it by videotape or audio. But, if we do so, the defense attorneys are entitled to copies upon paying duplicating fees. Part of me wants to record them so we can refer to what was said even if we don’t order a costly transcript for us, but I’m not sure if we should avoid creating a recording that the defense wouldn’t otherwise have.

      • fl_litig8r says:

        I see no big advantage to them having a recording that you yourself have. To be honest, unless we’re planning on using a videotape at trial, we lawyers almost never bother looking at video depositions. Written transcripts are so much easier to scan for what we want. Forget about audio recordings — they’d never listen to those. It’s just not efficient from a time standpoint.

        If you want to record it for your own use, especially if it’s just audio, I wouldn’t let the fact that they may ask for a copy be a deterrent.

  33. stopthepain says:

    I have another question for you, how many times can a trial keep getting postponed? this has happened 5 or 6 times already and I cannot understand how the judges allow it as it seems like a ploy by the defendant to get out of accountability. is there a limit?

    • fl_litig8r says:

      No, there is no limit. If your trial is being postponed due it being bumped on the docket by cases with higher priority that don’t settle, that’s common — I discuss this issue in this article. After a few times of this happening, your lawyer can probably ask for a special setting, meaning a trial date where you are the only trial scheduled (or at least you’re number 1 on the docket), so there’s no chance of being bumped by other cases. Of course, there are only so many of these dates available and they’re often a year or more away, so many lawyers will just gamble on getting the next available trial date and risk being bumped again.

      If your trial date is being postponed due to parties moving for continuances, there is no limit to that either — it is entirely within the discretion of the trial judge. As long as the party moving for a continuance has what sounds like a legitimate reason, the court will usually grant it. Granted, being continued 5 or 6 times seems like a lot (if these were all due to motions for continuances), but without knowing the stated reasons for the continuances I can’t say whether the court is abusing its discretion or what possible solutions might be available.

  34. stopthepain says:

    I think both scheduling issues and continuances have postponed it, with continuances more so. After the 3rd or 4th time it was rescheduled, my lawyer asked for a special setting on the judges calendar and the judge set it (although a long time like you said- 6 months away). I am just concerned that the defense will again ask for a continuance.

    • fl_litig8r says:

      If you got a special setting, the judge will be very reluctant to grant another continuance. The defense would need a really good reason (like the death/incapacity of its lawyer) to get a specially set trial continued.

      • stopthepain says:

        fl_litig8r, thank you for that reply. If I recall correctly, the phrase my lawyer used was the date was “specially set” and the judge scheduled it during a period with nothing else on his calendar, so it sounds exactly like what you described. However, the defendants have been so slimy that I would not be surprised if they manipulated something to justify asking for a continuance just to avoid accountability. Can they use an excuse like they just found new material or something?

        • fl_litig8r says:

          The only time newly discovered evidence can be used to delay a trial is if it couldn’t have been reasonably discovered sooner and it creates a need for more discovery that requires the trial to be pushed back. It’s pretty rare, so I wouldn’t expect your trial to be delayed on those grounds.

  35. stopthepain says:

    Fl_litig8r, this is a great web site, thank you for it! Do you take donations?

    What happens with all or the personal, non related medical information that the defendant has subpoenaed? Are there ethics rules or laws that prohibit it from being used by the defendants in any way unrelated to the litigation? I had a cosmetic procedure a few years ago and the before and after pictures are very personal. It is wrong that anybody should be allowed access to them other than my medical providers but they were subpoenaed, what happens to those copies?

    • fl_litig8r says:

      I currently do not take donations, but because people keep asking, maybe I’ll change my mind some day. 😉

      While there may be states that have bar rules or statutes specifically aimed at attorneys’ use of people’s medical records, generally speaking there aren’t any specific rules for these (note that HIPAA doesn’t apply to most non-medical providers, insurers, or their business partners, so once a third party obtains HIPAA-protected records, they are generally free to re-disclose them as much as they want). If a lawyer were to use an opposing party’s medical records in an unsavory manner, he would likely run afoul of some general ethics rules, though. For example, in Florida, we have a rule that provides in part:


      (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.

      While I haven’t seen any ethics opinions about attorneys misusing medical records and being punished under this rule (hopefully because attorneys aren’t misusing medical records), I would imagine that if a lawyer were to distribute medical records solely for the purpose of embarrassing an opposing party, he would be subject to sanction under this rule.

      In short, I would bet that most attorneys wouldn’t misuse your records out of fear of bar sanctions (even if under a general rule like the one above), sanctions by the trial judge (who has very broad authority to sanction lawyers and parties for all varieties of misconduct related to the litigation) and possible even being sued for invasion of privacy, intentional infliction of emotional distress and any other tort a clever lawyer might think applies. Plus, most defense attorneys don’t have any personal animosity toward opposing clients. They’re just doing a job, and have no motivation to go out of their way to do something to a party that has nothing to do with defending the case. For the vast majority of them, they’ll get the medical records, use them in the litigation, and then file them away until the litigation file is no longer needed and can be destroyed.

      If you have a particular concern over these plastic surgery records, you could always ask the court for a protective order limiting opposing counsel’s use of the sensitive information to the extent necessary for litigation only and requiring that they not be disclosed to third parties outside the litigation. That seems to be a reasonable request that a judge would grant.

  36. stopthepain says:

    I hope you start taking donations soon, I think a lot of people would be happy to donate since this site is so helpful. I know I would!

    On the issue of the use of the personal records, it isn’t that the defense attorneys have any “personal animosity”, it is that they have no scruples and will go (and have gone) to ANY length to abase and humiliate the plaintiff in an effort to keep the insurance companies from accountability. Their client’s negligence reduced my fulfilling life to just an “existence” out of the blue one day, and now I am being violated by a system that allows the exposure or threat of use of my very personal, law abiding, decisions that had nothing to do with the litigation. Is it possible or common to ask a judge for a protective order for ALL information, and that none of it be disclosed to third parties outside the litigation?

    • fl_litig8r says:

      In theory, you can ask for a protective order for pretty much anything you want kept private, but the narrower the scope of your request, the more likely it is to granted. Sweeping requests will go against the judge’s tendency to favor open court proceedings. You have to expect to give up a certain amount of privacy when you file a lawsuit. This is why I suggested limiting it to the specific concerns you stated in your last comment.

      Just as a side note, unless the defense attorneys have specifically threatened to reveal personal things about you or publicly embarrass you as a negotiating tactic, it’s likely that they really aren’t requesting these unrelated records to intimidate you. They’re just being thorough, as they never know what will be in someone’s medical records until they get them. Things like plastic surgery (or gynecological records, which my female clients always question the need for) in and of themselves have a very low probability of containing accident-related information, but sometimes they will reference other treatment received that may be relevant. For the most part, defense attorneys get these records, review them, see nothing relevant, then file them away and never look at them again. If these lawyers don’t ask for everything and it later turns out that they missed something important because of that, their buddies, the insurance companies, might sue them for malpractice. Therefore, often they’ll cast a wide net in their requests just to cover their own asses, as opposed to trying to scare the plaintiff.

      Having been a defense attorney myself in my early years practicing, I can say first hand that most of them feel that they really don’t have a dog in the fight (granted, there are some zealots out there, but thankfully they are in the minority). If a case can be defended, they’ll do it. If it looks bad for the client, they’ll recommend settling. They get paid either way (which could also be a reason for requesting lots of records — to bill more hours). It’s not personal for them, so going out of their way to humiliate a plaintiff isn’t what the vast majority of defense attorneys are about. Be careful not to read too much into what they ask for. They don’t know what records might contain until they get them, and if something can be attributed to ass covering or billing more time, I’d sooner believe that than a more nefarious motive.

      • stopthepain says:

        Hello, my injuries have been extra debilitating lately so l haven’t been able do anything, even read your site. Thank you for your reply, this really is an awesome site.

        My thoughts- the fact that a plaintiff has already lost so much because of the negligent actions of another can be devastating, and to “expect to give up a certain amount of privacy” adds a new level of degradation to the situation, especially given the slimy ways the defendant attorneys manipulate your very private information to avoid accountability.

        In general, medical care involves a choice you make with somebody you feel trust in at some level. Some treatment types are far more sensitive than others, not just cosmetic procedures but mental health, drug/alcohol use, (as you mentioned) gynecological and even endoscopic and proctologic exams. When faced with these types of care even the strongest person may feel insecure for any number of reasons but reinforced by the trust they have in their medical provider and welcome their help based on that trust.

        Lawsuits against a negligent individual who crippled you are adversarial in nature and once the opposing party (whose very purpose is destroy the plaintiff’s claim and integrity) has access to very personal records it is difficult, if not impossible, to ever view the relationship with your treatment provider the same way. For example, from now on every time my spouse, children, or I speak to a medical provider I will wonder in the back of my head “could this exam be public record one day because some a##hole could not obey simple traffic rules” instead of feeling free to discuss the health issue and focusing on the treatment, especially if it involves one of the sensitive types I mentioned. For some it could be even worse, by turning to drugs or alcohol (or similar bad choices) out of the pain and frustration that they have to “give up a certain amount of privacy”. As is the American way, the powerful avoid accountability.

        • fl_litig8r says:

          I think you are attributing nefarious motives and intentions to the defendant and his lawyer that may not be justified. They’re not out to destroy the plaintiff. They just want to pay as little as possible to end the claim — that doesn’t mean that they’ll leave their morality at the door to do so. While the claim is very personal for you and most plaintiffs, it is rarely so for the defendant and his or her lawyer. I think you’ll find that when the case is over, none of the bad things you’re envisioning will happen with your medical records ever came to pass. You should certainly never consider the possibility of records being discovered in a lawsuit when consulting with a doctor. Better you should tell the doctor everything and just not sue if you don’t want it disclosed than to withhold information from the doctor just because the records might be part of a lawsuit one day.

  37. Sydney says:

    Thank you for sharing your knowledge and information. Everything was well written and easy to understand.
    ~ Sydney Andersen ~

  38. Paul [last name removed by admin] says:

    Thanks for your help before. I have a couple more questions for you. If my attorney charged me a retainer fee for $3,600.00 and he still hasn’t taken one deposition on any of my witnesses, and he is the Associate of the firm owner, can they demand additional money from me for doing the depositions even though they haven’t even done one deposition for me? Also, he said that the Defendent’s Attorney has made a offer of $500.00 plus willing to give me a confidentiality letter to sign to protect the employer from releasing any information on the sexual harassment claims from being released by employer, but I also understand that this means I am also under the confidentiality agreement and I can’t go to the press. What is your opinion? I really don’t want to sign and except this nuisance offer, and I want my attorney to do atleast four depositions before asking me for more money. Is that not reasonable? Would it be in your opinion that going to the press before signing such an agreement, if it is in my benefit to do so, to change the outcome in the defendant’s leverage? Is it possible, should a journalist reporter find the story interesting to post would this prompt the attorney general to get involved? My Dad has always said, in law and justice it is always who has the biggest pockets. I’m beginning to think that is true unfortunately.

    • fl_litig8r says:

      I have no idea what work your lawyer has already done in the case that may have used up all or part of your initial retainer. Are they charging you an hourly rate, or is the retainer just for costs? Sometimes when a plaintiff’s lawyer thinks that a client is being unreasonable about settlement (or the lawyer just wants to get rid of the case), he’ll ask for the client to bear some of (or a larger portion of) the expenses to let the client know what it’s like to have his own money at risk if the case doesn’t end well. The amount of the retainer they require is really up to them. If you don’t agree to the amount they want, they’ll just withdraw. That goes as well for your desire to have them do four depositions. You can suggest it, but they don’t have to do it. I can’t say whether you’re being reasonable or not. I know nothing about your case — note that this is not an invitation to tell me everything about your case.

      It sounds like they really don’t like your case. From your earlier post it seems that an overzealous associate may have taken a case that a more experienced lawyer wouldn’t have, and now they’re trying to save face by making excuses to get rid of you rather than just saying “I never should have taken your case and I’m dropping it.” The $500 offer from the defendant doesn’t really indicate that they’re scared of you in any way. I would expect that the confidentiality in the agreement would apply to you, as well.

      I think you’ll be surprised by the complete lack of interest any news media would have in your story. Most plaintiffs in personal injury or employment discrimination cases think that they’ve got a great story about a huge injustice that the media would jump on. I can safely say that unless you’ve got one spectacularly interesting “hook” for your case, no reporter will care about it. Employment discrimination cases are filed every day. How many do you hear about from the news media? Practically none. I wouldn’t count on any leverage from going to the news media because the news media probably won’t care about your case.

  39. Paul [last name removed by admin] says:

    Thank you, again. You have been most helpful. I do get the picture.

    • fl_litig8r says:

      Sorry if I was a bit blunt with my last response, but it seems that lack of bluntness by your own lawyer has caused a lot of the problems you’re having. Sometimes a lawyer’s initial (and often misplaced) enthusiasm about a case makes it hard for him to turn around and tell the client when the case no longer looks so great. In trying to save face or spare the client’s feelings (or avoid a confrontation with the client), they just wind up creating a bigger problem.

  40. Tim says:

    As a plaintiff, I received a deposition decus tecum notice. It asks me to produce any and all writings in my possession regarding this case. (Instead of “writings”, it has a standard long list of a bunch of types of writings/documents.)

    Can it be that vague? Don’t they have to be more specific than that? If this is overly vague, do I object in writing in advance, or show up at the deposition with nothing, saying it was vague?

    • fl_litig8r says:

      Requests like this are typically vague, mainly because the requesting lawyer doesn’t know what you might have. Unless this request asks for things that are clearly beyond the scope of discovery in the lawsuit, I doubt that an objection based on the request being overly broad would be upheld by a judge. I wouldn’t show up at the deposition with nothing. My suggestion would be to produce the requested documents as best you can. I mean, how many documents can we be talking about here?

      • Tim says:

        Should have mentioned, in case it makes any difference. The case has been being litigated for a year. I already answered requests to produce. It’s a personal injury case, and there’s many hundreds of pages of medical notes, bills, insurance statements, etc. They’ve already gotten copies from health providers & insurance companies.

  41. Lisa says:

    In an auto case involving a plaintiff and two defendants potentially at fault, if plaintiff is asked at deposition who they feel is at fault, what percentage they would proportion, which defendant they feel is more at fault, etc… Should they stick with saying they aren’t at fault, don’t really know the answer that question, and it’s for the jury to decide? Or, if pushed for an opinion, should they throw out numbers? (With proportioning themselves 0%, if that’s truly how they feel.)

    • fl_litig8r says:

      I would definitely reiterate your opinion that you aren’t at fault at all and then I’d probably dance around the question for a while. Say that you feel that they’re both completely at fault, because while their actions may not have been equal you can’t say how your injuries would have been affected had only one acted differently. It’s like if a terrorist spends a month building a bomb and then another terrorist takes a second to set it off, who is more responsible for the damage it caused? Had either person not done their part, no damage would have been done (in this scenario), so how can you apportion the damages between them. Then you can hem and haw about not being a lawyer or an accident reconstructionist, or even a doctor, so any apportionment you’d assign would be based solely on your personal feelings as a lay person without the benefit of hearing expert testimony beforehand, like a jury will. If they keep pressing you for an answer after all this, I think you’ve qualified it enough to safely give one. Obviously, you should refrain from saying that one has no fault. Usually, a fairly equal division is your best answer, assuming that both defendants have an equal ability to pay.

  42. Donald says:

    Filed a request to produce photos believed to exist a year ago. Defendant responded in writing they didn’t have any. Attempted to meet & confer saying they surely exist or are within their control to produce. No response. File a motion to compel. Before the judge, defense attorney swore they did not have the photos. Defense attorney substituted a co-worker into the case. Now, a year later, at Plaintiff’s deposition, that new attorney had the photos clearly out on the table for quite a while, but never introduced them as an exhibit or referred to them. Discovery is still open. Based on swearing in court they didn’t exist, and failing to produce them under duty to supplement answers… Would I likely succeed on a motion to suppress? Photos are potentially damaging to my case. What other options do I have? Representing myself, so there are no attorney’s fees to ask for.

    • fl_litig8r says:

      I think it would be worth pursuing. What you want to file would be called a Motion in Limine (pronounced lim’-in-nee), not a motion to suppress — same concept, just a different name. While them not producing the photos is sanctionable, the one problem you may run into is if the court asks what prejudice you’d suffer if the photos were produced now. Basically, what could you have done if they were timely produced that you can’t do now? The court may be reluctant to punish the defendant for the conduct of its lawyer, as it appears that the defendant provided the lawyer with the photos and the lawyer is the one who failed to produce them. It’s a pretty interesting dilemma. On the one hand, the failure to produce the photos should not go unpunished, but without the ability to apply the usual sanction of attorney’s fees because you’re pro se, would the court impose the potentially harsher sanction of excluding the evidence (especially if no prejudice to the plaintiff can be shown)? It’s definitely worth asking for. At the very least, it brings the defense attorney’s conduct to the attention of the court.

  43. Brokentooth_brokenhome says:

    We are preparing our discovery strategy. We want subpoena business records. Even considering the business records exception to the U.S. hearsay rule based on Rule 803(6) of the Federal Rules of Evidence (FRE), can we obtain personnel records indicating who was working on particular day and possibly what their role was that day?

    Thank you for hosting this great site!

    • fl_litig8r says:

      As long as it’s a reasonably framed request, I don’t see why not. Getting everything in their personnel files might be a stretch, but getting payroll or scheduling records showing who was working that day shouldn’t be a problem. Because the entity you’re seeking records from is a party (I assume you sued the business and not just the individual dentist), you’d use a request to produce — no need for a subpoena.

  44. Brokentooth_brokenhome says:

    Thank you for your response.

    We did just sue the individual.

    Will our request for personnel schedules require a subpoena, or should we include the business in an amended complaint?

    Along the same vein, I should not be too surprised the response for our request for all patient records was a transcript, when we specifically said we didn’t want just a transcript.

    It appears the way we set up our initial complaint could be coming back to haunt us.

    Our first complaint was not very robust and I want to amend it to focus our complaints and included does.

    Again, thank you and have a good weekend!

    • fl_litig8r says:

      It may not be worth amending your complaint just to add the business. From a practical standpoint, I’m sure the dentist alone has sufficient coverage to satisfy any judgment you may get. It’s just common in any negligence case to sue as many people/entities as possible, so I assumed you had. Having the business as a defendant would probably make discovery a little easier, as it eliminates the need for subpoenas for records and depositions of the employees. You can still go the subpoena route with the case in its current form. It just makes it a bit more of a pain enforcing any failure to comply. Instead of filing a motion to compel, you’d need to ask the court to find them in contempt for failing to properly respond to the subpoena. You should document your efforts to try to get them to comply with the subpoena before involving the court, because one thing judges can’t stand is being drawn into a discovery dispute that could have been resolved by the parties if they had just talked it out before playing hardball.

  45. Brokentooth_brokenhome says:

    I appreciate the response.

    Isn’t true I also have Requests for Production? Or would the efforts to send requests to all the people I need information from be unnecessary and just time consuming?

    In light of your response, it may be time to send a letter to the opposing side requesting the things we need to support our case.

    We did not conduct a meet and confer per California regulations, and being the first to step up and suggest we settle some issues could be in our favor as well.

    Thank you for your time.

    • fl_litig8r says:

      You can only send Requests for Production to parties. You need to use a subpoena to obtain records from non-parties. Whether that’s worth your time depends on your opinion about the importance of the records. I’m not sure what you mean by sending a letter to the other side to request records, but if you’re doing this as a request for production, I’d use the more formal, numbered pleading-style format for the request. You can still serve it by mail (along with a letter if you wish) and it would make it a lot easier to enforce, should the need arise.

  46. caroline [last name removed by admin] says:

    Thank you for the article. Wish I had googled and found it before my depo this past Fri. My daughter’s boyfriend (licensed) was driving my car (with permission) and they were rear-ended. The boyfriend has been deposed, my daughter will be deposed in the near future. My insurance company’s attorney deposed me, with my daughter’s lawyer, actually a partner at the firm, present. I was prepared with very minimal prep. I have been a legal secretary for 29 years and so had some idea of what to do/not to do. But, I was told that the primary reason for the depo was to go after homeowner’s insurance, meaning either me (but, I rent) or the boyfriend, who was in a contract for deed with my daughter, but they split and she quit claimed the house to him (uncertain if that was filed by him or not), or possibly the boyfriend’s mother, who does own a home. Anyway, there was only slight mention of the living situation and much more about my recollection of what time of day the car was picked up, when it was returned, if I saw the car, etc. This accident happened over 9 months ago. I have a bad memory, not trying to “pull one over” with this as an excuse, but truly have a bad memory. I tried to answer the questions, remaining vague, but in thinking about my answers after the depo, I should have just kept saying, “I don’t remember” and leave it at that. I am uncertain at this point what impact my answers will have on the case. Apparently because there was soft tissue injury to all 3 of the car’s occupants in my car and they treated with a chiropractor, the partner attorney thinks this is the reason for deposing me. I had wanted to see the depo transcript of the boyfriend prior to my depo, but apparently the attorney did not think this was necessary, as he didn’t want me to have access to info about the accident and simply say, “I don’t know or I don’t remember”. Well, I wish I had said that over and over again, because I now feel like what I did offer as responses/answers, will be picked apart, compared to what was previously said by the boyfriend and there will be discrepancies.

    Could I have made a “blanket statement” at the beginning of the depo with regard to my bad memory and would that have been helpful as a backdrop to continuously saying I didn’t remember or if I did answer and there were discrepancies with other depo answers, refer back to that blanket statement as to my bad memory?

    I am nervous for my daughter’s depo and feel that there are now going to be 3 differing accounts and in not knowing what the boyfriend said, he may have pushed all of us “under the bus”.

    I am recommending to my daughter that she see the ex-boyfriend’s depo transcript and mine as well. Can she be questioned with regard to what I said in my depo and could she say, “My mother has a bad memory. She can’t remember what happened over 9 months ago with regard to an accident that she wasn’t a part of.” But, for me, the questions asked, I should have had the answers for, so the bad memory really should have been my answer from the start.

    Lastly, is my insurance company taking all of our depos the norm? I thought they were on “my side” as I have been with them as an insured for over 2 decades. Is this depo process just routine with regard to finding someone to pin the fault on to be able to collect from? I don’t want to lose my insurance and hopefully this accident won’t make my insurance premiums soar, or worse, discontinue my coverage.

    One last point, they also asked me about knowing 3-4 different people that I had never heard of. When I responded no to not knowing any of the persons, I asked the attorney, “Who are they?” She simply smiled at me and never answered. What was that all about?

    Thanks so much for reading this and responding.

    • fl_litig8r says:

      I think you are overestimating the value of your deposition to the case and you’re stressing a lot more than you need to about the answers you gave. Sure, if you were unsure of times or other details, you should have made that clear while answering, but I seriously doubt that you could have said anything that will affect the case. As long as you said the boyfriend had permission to drive, it really doesn’t matter when he took the car. Even if you got the date and time completely wrong, it’s no big deal. The accident report will say when the accident happened, and the attorneys will just assume you misremembered it.

      There’s no need for your daughter to proactively do any damage control for you in her deposition. If she gives an answer that’s different from yours, again, people will just assume that you got it wrong (and not intentionally). People get dates and times and all sorts of things wrong in depositions. It’s nothing that lawyers haven’t seen before, and unless it’s something that appears calculated to help your side of the case, no one will make anything of it. Making a blanket statement about having a bad memory during the deposition probably wouldn’t have made any difference if you then went on to answer questions without saying “I don’t remember” or “I’m not sure” for each individual answer. But again, it’s not as big of a deal as you think, because you’re not very important as a witness aside from the permission issue. Any mistakes you made in your answers likely won’t affect the case at all.

      As to why your own insurer is deposing you, I would think that it’s because a claim has been made under some form of PIP insurance or, more likely, your bodily injury and/or UM coverage. It’s not unusual for people to be adversarial with their own auto insurer after a car accident. Insurers don’t want to pay claims for their own insureds any more than they do to third parties. Your daughter’s lawyer can better tell you the nature of the claims that involve your insurer. As to whether your premiums will go up, that depends on whether the boyfriend was at fault for the accident and whether your insurer considers you to have “excessive claims activity” (even if you’re unlucky and never at fault for the claims, making a lot of claims within a certain time period can drive your premiums up).

      As to your last question, the smile was probably because lawyers don’t have to answer a deponent’s questions at a deposition. You’re there to answer questions — not ask them. I doubt that it was anything sinister relating to the 3-4 people or your answer about not knowing them. It’s more the lawyer getting a kick out of being asked a question by a deponent — or maybe she was just messing with you.

      • caroline [last name removed by admin] says:

        Thanks for the quick turn-around reply. I totally appreciate your feedback. I am going to share this all with my daughter. I too did not think I was that much of an influence in this accident claim, other than the permission to drive my vehicle and the homeowner’s insurance question. So, when the depo didn’t contain much of that questioning, I guess I was a little put off by questions that I felt were really pretty innocuous unless they were being asked to try to “catch me” in contradicting myself. Leaving the room 2 times during the depo by the insurance attorney and the insurance rep was also a little off-putting and probably meant to be exactly that. The partner attorney told me I did really well and he wasn’t concerned about my answers and therefore didn’t intervene at all during the depo, as he felt I had everything under control.

        My daughter has a short temper, which I relayed to the partner attorney and he assured me that he would pass that on to whomever was going to accompany her to the depo, because I can totally see this insurance attorney being able to get under her skin and my daughter lose her cool. I advised the partner attorney that whichever attorney is in the depo with my daughter should be prepared to take a recess as often as possible if they sense my daughter is about to lose her cool.

        Again, thank you for the response.

        • fl_litig8r says:

          You should really talk to your daughter about the temper issue. Don’t rely on the lawyer to save her from herself. Make sure she knows that the defense lawyer is not only using the deposition to get factual information, but he is also evaluating how she will perform as a witness if the matter goes to trial. Anger, snark and sarcasm need to be suppressed as much as possible. She wants to be likeable and sympathetic. If the defense attorney provokes her, or gets snide or somewhat nasty (her lawyer will object if it gets too crazy), she needs to keep in mind that it will play better in front of a jury if she meekly lets this happen than if she responds in kind. If she gives as good as she gets, the jury may think “a pox on both their houses” and write both her and the defense attorney off as nasty people. If it’s just the attorney being nasty, and her trying her best to answer the questions, it will generate even more jury sympathy. No one likes a bully. If the defense attorney is a man this works even better, given that she’s a young woman. If she can pull this off in her deposition, it increases her stock as a witness considerably.

          • caroline [last name removed by admin] says:

            Again, many thanks for the reply. I gave my daughter your entire post and all of the comments, mine included. I have read her your latest reply, so she is fully forewarned. I appreciate your taking the time to respond to me again. This is very helpful and I appreciate someone other than me saying the same thing — gives a little more credence when it isn’t just your Mom telling you.

            Thanks again. Have a great evening.

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