Proving Injuries During Depositions - Threshold Level Injuries

Many states have a prerequisite in the bodily injury case against the at-fault driver.  When the plaintiff is seeking compensation for pain and suffering, loss of enjoyment of life, disfigurement, scarring, etc. the law in some states require the injury to be a certain nature or degree.  For example, I’ve learned that in some states an injury must be permanent in order to be compensated.  In Michigan, the state that I am from, in order to receive damages for a third party case one can qualify in four different ways:

1. Permanent serious disfigurement

2. A properly diagnosed close head injury

3. Fatality

4. “Suffering from a serious impairment of an important body function”

Of the four ways someone can qualify for third party proceeds, the most common qualifying way is #4, having a “serious impairment of an important body function.”  This basically has come to be defined as having a medically identifiable injury (typically identified by a medically objective task like an x-ray showing a broken bone) that affects an important body function, like the back, arms, neck or head, and significantly affects the plaintiff’s ability to live his or her specific life.  Now, I tell you this because for years we have had to prove that someone’s life has been significantly affected in a state (Michigan) with a very high threshold.  Having to meet the criteria for “life affect” has made us better lawyers. It made us really delve deeply into our clients’ lives, what they were like before the crash and how different their lives are after the crash.

The law in Michigan, up until recently, was that we had to show that the course interjectory of our client’s life had been significantly affected from the motor vehicle collision. Therefore, much of my deposition preparation time with my client would include explaining this life affect issue that we needed to prove.  I share it with you because by showing significant life affect it shows the damages (or as David Ball would say, all of the “harms and losses”) my client has suffered because of the defendant’s negligence.  Even when I was not litigating a case where this threshold had to be proven (for example when there is not a “motor vehicle” involved, e.g. motorcycle vs. motorcycle, dog vs. motorcycle) I would take it in to consideration.

In handling so many of these cases and thinking how someone’s life is affected after a motorcycle injury wreck, I discovered the best approach was to break my client’s life down into 8 separate categories.  I think, most commonly, everyone’s life has these potential 8 separate categories which include: 

- Work

- Recreation/ Social

- Personal Care / Fitness

- Domestic Chores

- Marital Relationship (emotional and sexual aspects)

- Family Relationships

- Rest and Sleep

- Emotional / Psychiatric

Another important aspect of breaking your client’s life down into these approximate 8 separate areas is that one of those areas will resonate with anyone putting a value on the case.  Let me state this another way, each juror and adjuster that hears your client’s story of how their life has been affected is different and has a different background and history that they carry with them.  One juror may have had an experience in their personal life where their personal care and fitness is very important to them and was taken away at some time, and that part of your client’s testimony will resonate and speak to them.  While another person may have gone through a difficult time in their marriage and hearing the plaintiff talk about how the injuries affected his relationship with his wife may resonate or hit home with them.  It is these areas of common ground that lend themselves to empathy.  If a juror or an adjuster is empathizing with your client then they are more likely to find favor in all elements of the case.

Below I have copied a deposition instruction page that I sometimes send to my clients before their depositions.  I also send them a Deposition Preparation DVD that I produced to help them understand the process they will be going though.  The instruction page will, if anything, give you ideas of things that you can cover in preparation for a plaintiff deposition.  I’ve inserted it here:

CLIENT DEPOSITION PREP CHECK LIST

Work Product of Law Offices of Jason A. Waechter

This deposition is for the benefit of the other attorney – give him what he asks and nothing more.  TELL THE TRUTH.  Your goals are to answer only the questions asked and to make a good impression on the other attorney

1. GROUND RULES

-         Have you ever had a deposition before? 

When?  

Why?

- Listen carefully to each question!!  

    Give SHORT answers

Sample: (Q) Do you know what time it is?  (A) “Yes.”  Not “Yes, it is ten o’clock.”

Do not volunteer info and do not ramble

     Answer only the question asked; do not give more

If you can answer yes or no – do it.

 EXCEPTIONS: Be VERY SPECIFIC about your injuries, pain and affect on your life.

- The other attorney is the enemy - do not forget it, even if he acts very friendly.

- He will report to his client about your appearance and testimony

- Answer out loud; no nods or umm hums

- It is okay to say “I don’t know,” just not to every question

- If you don’t understand a question, you MUST say that you don’t understand – if you answer, the other attorney will assume that you understood him

- Do not guess

- Do not argue or fight or raise your voice – if the other attorney is abusive, I will protect you

- If I object, STOP - do not answer and listen carefully to what I say – you may learn something that helps you to answer the question

- The scope of discovery is broad – some questions will seem irrelevant – I will object if a question is  improper

- If you are not sure about an answer, you may say “The best that I can recall is....” or  “I don’t know the exact order, but...”

- You may ask for a break – don’t be afraid to ask 

- Be respectful – Saying “Yes, sir” or “yes ma’am” doesn’t hurt  

- BEWARE of questions involving TIME, DISTANCE or SPEED!!!  Unless you are absolutely sure, make sure to let the attorney know that you are giving an estimate

- Don’t pull out documents

- Don’t be absolute or definite (exceptions; fault, not speeding)

- Don’t limit future answers

- Don’t let them get you to agree to bad statements if they’re not true

2. BACKGROUND

A. Check client’s driver’s license    

• Any endorsements?  Motorcycle?  CDL?

• Any restrictions or suspensions? Now? Ever?

• Check address: Different than one given to PIP?

B.  Current address & phone number (update file); get another number

C.  Address on DOA - with whom did you live?

D.  Did you own or rent the home?

E.  Social Security Number.

F.  Other suits\ injuries?  

G  Health before accident

• If prior problems, discuss how they are different than before the accident

• Prior surgeries?

• Prior hospitalizations?

H. Activities

•  Discuss all hobbies, sports, leagues, exercise etc.

I. Glasses... for what; were they on at the time?

J. Diary

K. Education

L. Employment History:

• Last worked when?

• Why leave? Accident related?

• Work; duties... physical requirements

• Off for how long? 

• Did a doctor disable you?

• Go thru work history?

• Working now?

• physical, accommodating him? Heavy lifting

• Wage loss issues

• Collect disability, comp, short term disability., SSI

M. Criminal History:              

• Criminal charges?  Pleas?  Convictions?

• Have you ever been incarcerated?  When?

• Have you ever been arrested?  When?  For what reason?

3. VEHICLES

- what was the make and model of the car you were in?

- who owned it?

- did you have permission to drive it?

- WAS THE CAR INSURED?  With which insurance company? 

- Was there anything wrong with the car prior to the accident?

4. AREA OF ACCIDENT

- Are you familiar with the area?  

- How many times have you been there before?

- Describe the area in detail – number of lanes, traffic control devices, etc.

- Go over police report – is it accurate?  If not, why not?

5. ACCIDENT

- Where were you coming from/going to when the accident occurred?     

- In 3 sentences, how did the accident happen?

          This may be very important – go over the accident a few times if necessary

- Had you consumed any alcohol? Medication?

- Did you lose consciousness or have an alteration in your state of consciousness?

- WHAT PART OF YOUR BODY HIT WHAT PART OF THE INSIDE OF THE CAR?

- What time did the accident occur?

- Were you in a hurry to get somewhere?

- Were there other people in your vehicle?  How many people were in the other vehicle?

- Describe the other vehicle – describe the damage to the vehicles

- Did you have your seat belt on?  Did the airbags deploy?

- What was the weather like?

- What was the speed limit? How fast were you going when the accident occurred? Did you have your lights on?  Wipers?  Were you smoking?      Talking on a cell phone?

- Was anything obstructing your view of the other vehicle?  What?

- Position of the cars on the roadway

- After the accident, did you talk to anyone on the scene?  Who?  What did they say?

- Did you ever give any testimony in Court or any other proceeding related to this incident?

- Were any tickets issued?  To whom?

- Impact:    - Was it hard?   Describe the impact

- Damage to vehicles, describe 

- Do you have any photos showing the damage to the vehicles?         Who took them?      When?

- Do you know of any witnesses to the accident?  What are their names and addresses?  What have they told you about the accident?

6. DRAW DIAGRAM

- Be prepared to draw a diagram

- Discuss configuration of roadway, traffic signals, landmarks

 7. FORESEEABLE DEFENSES

- no serious impairment of body function

- sudden emergency

- contributory negligence:

- Explain that the lawyer may TRY TO MAKE IT YOUR FAULT

- DID YOU DO ANYTHING TO CAUSE THIS? 

- Could you do anything to avoid this? 

- 50% Rule – if you are found to be more than 50% at fault, you lose on non-economic damages

8. INJURY

- DESCRIBE ALL OF YOUR INJURIES

If you can’t think of anything else, say “THAT IS ALL I CAN THINK OF RIGHT NOW” just in case you remember others later.

- Describe how your injuries make you feel

- Do not hold back – it is not the time to be stoic

- Did you need any orthopedic appliances?  A collar? Brace?  Splint? Cast?

- Graphically describe your pain – how often does it hurt?  What makes it better?  Worse?

- Go over changes in injuries from the date of the accident to the present

9. PRIOR INJURIES/ ACCIDENTS

- prior hospitalizations; E.R. visits

- any hospital or doctor you mention, they will get your records

- prior injuries to back; neck, surgeries

- discuss differences between prior & current injuries, where applicable

- prior physicians, including family doctor and dentist

- medications

- other court proceedings;

- other claims, including worker’s comp, premises, auto claims

- Last physical, life insurance physical, work physical

- Prior claims/ suits

- Note – the other lawyer can verify your answer with computer search 

- Ever injure same body part?

10. TREATMENT; DOCTORS

- The day of accident; E.R.?  Admitted to hospital?

- Why did you refuse EMS? Afraid of big bill?

- What was done at the hospital?

- go thru records: consistent w/ complaints;

- Where was your first treatment after the hospital?

- Other treatment

- Did a friend or relative refer you?  Who was it?

- Are you still treating? 

- When did you last treat?  With whom?  Where?

- Discuss gaps in treatment, if applicable

- Physical therapy or home therapy after discharge? 

- go thru all treatment

- go thru all testing, results

- Did you see any INSURANCE COMPANY DOCTORS?

Who? When? Were your benefits affected afterward?

Describe the examination

11. CURRENT COMPLAINTS

- List in detail

- Describe in terms of how you feel – “Like a knife in my back”, “Shooting pain”, “It is numb” etc.

- Describe duration – constant, off and on, hurts when I walk, lift, stand, etc.

- Don’t exaggerate!!!!!! 

- Current medications

12. HOW IT HAS AFFECTED YOUR LIFE 

THIS IS THE MOST IMPORTANT PART OF THE DEPOSITION

You will be asked “what did you used to do before the accident that you can no longer do now?”

PREPARE TO TESTIFY AS TO THE FOLLOWING AREAS OF DAILY LIVING:

- Work

- Recreation/ Social

- Personal Care / Fitness

- Domestic Chores

- Marital Relationship (emotional and sexual aspects)

- Family Relationships

- Rest and Sleep

- Emotional / Psychiatric

You must BE SPECIFIC and describe the changes in your life in GREAT DETAIL

Along with the above mentioned deposition preparation DVD (which by the way is confidential under attorney-client privilege) I’d also send my client a questionnaire that broke down the multiple aspects of life and specifically ask them in a worksheet if the injuries from the crash have affected their work.  If so, we want many examples so I leave space for them to write and allow them time to think about it and add to it.  Further, in the preparation time I have with them, I would go over this worksheet with them and 99% of the time the client will list more examples after I ask them follow-up questions. In the end, together we’ve created a confidential worksheet that I could use to establish all of the losses and harms that my client has suffered because of the injuries from the crash.  If the client follows the guidelines I will have sworn testimony that can be used in response to the defense motions for summary disposition if they allege that our client’s life was not affected significantly.  Therefore, their case should be thrown out as a matter of law.

I submit to you that this type of questioning in areas of your client’s life should be delved into and extracted by YOU in THEIR deposition to create this important record of losses and harms. By going through this process I virtually guarantee that you will learn something you did not know about how this incident has affected your client and you will be able to use it to help them in the litigation.