Useful ideas in taking the deposition of the defendant attorney in a professional negligence case.
By Leonard Bucklin
In legal malpractice cases, a deposition is usually taken of the defendant attorney accused of professional negligence. It should be remembered that if the defendant attorney is going to testify as an expert on the standard of care that then the defendant attorney opens him/her self up to onion questions, to requests to bring more items to discovery and to lose of some work-product privileges.
LEGAL MALPRACTICE DEFENDANT ATTORNEY DEPOSITION – REQUEST FOR PRODUCTION OF FILES AND MATERIALS
It is wise to request that if an item is stored electronically, the defendant attorney furnish an electronic copy of the item and also a paper printout of the same. Electronic copies sometimes are not identical to the paper printout. The electronic item or its metadata may show who else other than the defendant attorney worked on the item or if the item was modified before being produced in paper format.
Sample of a request to produce.
You are requested to produce the following.
- All Defendant Attorney’s files, records, and documents regarding the underlying transaction or litigation for which it is claimed the Defendant Attorney was negligent. (Including the firm’s billing invoices.)
- All documents reviewed by Defendant Attorney in this case. [The theory is that these are all “considered” by the Defendant Attorney. in forming his/her expert opinion.]
- Any documents, photos, diagrams, illustrations , or demonstrative exhibits which Defendant Attorney will to use, or has prepared for others to use, in depositions or trial testimony to illustrate any item involved in this litigation, or to illustrate Defendant Attorney’s research, findings, opinions or any item about which Defendant Attorney will testify.
- All documents gathered by Defendant Attorney or persons associated with Defendant Attorney in Defendant Attorney’s investigation of the incident which is the subject of this suit.
- All reports prepared by Defendant Attorney in regard to the subject matter of this litigation.
- All correspondence and documents, relating to the matters which are the subject of this suit, that were exchanged between Defendant Attorney and any person, firm, company or organization.. [Reports and correspondence to/from the party’s attorney or insurer to the insurer from an “expert witness” are not usually subject to privilege claims. If the Defendant Attorney claims to be an expert, he/she sets himself up to give up more correspondence] .
- Copies of all advertisements and brochures in the last two years about Defendant Attorney advertising services or qualifications.
- Defendant Attorney ‘s latest resume and list of qualifications.
- A list of all publications which Defendant Attorney has written.
LEGAL MALPRACTICE DEFENDANT ATTORNEY DEPOSITION – RELEVANT QUESTIONS
Too often the plaintiff’s attorney is timid about asking certain questions because of professional courtesy and a desire not to be personally offensive. For example, here are some questions not asked often enough. The expert witness for plaintiff may want to know the answers to these questions.
1. State the full content of every conversation you had with [the plaintiff] about the subject of [the items which are involved in the claim of legal malpractice].
[The experts for each side need to have a basis for understanding the case, and not find out later that the defendant attorney claims there was “something else” that passed between plaintiff and defendant, in the course of the professional service, that excuses the defendant’s actions, or implicates the defendant in further troubles. All too often the deposition transcript describes fully only what counsel thinks are the relevant conversations, and does not include fully every conversation between plaintiff and defendant on the subjects in question.]
2. Is that all you can remember that you said and he/she said about the subject of [the items which are involved in the claim of legal malpractice]?
[This is frequently not asked because of a desire not to be personally offensive. Yet without it, the defendant can sometimes claim that he/she would have said more if given the chance.]
3. Is there anything that would help you remember more about what was said concerning [the items which are involved in the claim of legal malpractice]?
[Attorneys have secretaries with piles of paper and attorneys have lots of memory helps such as electronic calendar systems. Sometimes after a deposition, the defendant attorney goes back to look at something at the office and then a “correction” to the deposition is made. It is better to find out what “memory helps” exist and ask immediately for them to be produced.]
4. Have you produced every written communication between [the plaintiff] and you?
[See comment to question #1, above.]
5. Were there any emails or faxes at all between [the plaintiff] and you? If so have they — all — been produced?
[In today’s world, both parties may use an email or fax and then forget that it existed. You should ask specifically about them.]
6. Were you negligent in your handling of the matter for plaintiff?
What is the basis of that opinion?
Do you have any other basis for that opinion?
[Remember that the defendant attorney 99 times out of 100 is going to be giving an opinion in the trial as an expert attorney that he/she was not negligent. Just as you depose the retained experts in the case, you need to depose the defendant attorney as an expert and drain him/her dry of every opinion they might offer. If the objection is made that you cannot ask for opinions, or that there is a lack of foundation for your questions regarding opinions, respond that then the defendant will not be able to give any expert opinion at trial. Either the defendant is an expert or is not an expert on whether he/she was negligent.]
7. You have said that you were not negligent because [repeat back what was said by the defendant attorney]. Is there any further opinion that you have why you were, or were not, acting as a reasonable attorney?
[Without this question, the defendant can sometimes claim that he/she would have offered another opinion or more amplified opinion if given the chance. The retained experts want know what opinions are going to be in the case.]
8. Is there any other possible reason why you were not negligent in handling this matter?
[Once the defendant attorney answers “no” to this question, his/her retained expert will have a hard time offering an additional justification for the defendant’s actions.]