Depositions: who should be there?

Again I’ve been getting search strings that worry me greatly:

  • Should the plaintiff be at the defendant’s deposition?
  • Should the plaintiff read the defendant’s deposition transcript?
  • When should the plaintiff’s lawyer depose the defendant?

What on earth are lawyers out there doing? Is there some conspiracy going on to keep clients from depositions? Maybe.

My personal injury lawyers, Dinkes & Schwitzer, certainly did keep me from the defendant’s and witness’s depositions. I did not know what the testimony was until a few months ago, when I demanded and finally got my file.

I have read those transcripts. There were a few surprises: an entire day was taken up deposing several people from St. Vincent’s Hospital, where I had had my broken metatarsal diagnosed, and where I got a cast and crutches.

I started reading these transcripts with irritation. Why on earth was the defendant’s lawyer wasting time (and money) with the hospital personnel? Then I found out.

There was a startling discrepancy in the hospital records. One hospital person had noted that I had verbally reported I’d gotten my injury by stepping into a hole on the sidewalk. This was true. But another hospital person reported that I’d said I’d broken my foot in a hole in the street. This was not true, and I had never told anyone this.

So I understood by reading the transcript that, first, the defendant’s lawyer was very sharp. She had read every line of that hospital record, apparently, and had picked up the discrepancy, and of course needed to depose hospital personnel to find out what I had actually said and who recorded those statements.

Because if it were true that I had broken my foot in a hole in the street, her client (and her client’s sidewalk) were not liable. The Department of Transportation of the City of New York, who has jurisdiction over streets and street repairs, would have been liable.

The other thing I realized was that my own lawyers were not sharp. They had had that hospital record for a couple of years and apparently no one picked up the discrepancy. If any of Dinkes’s lawyers had carefully reviewed that record, he would have, should have called me immediately to discuss it, and I would have straightened it out long before depositions.

But no one called me, and no one told me about or invited me to that deposition. I suspect my own lawyers were trying to cover up their negligence in failing to detect the discrepancy.

But I’m glad that the defendant’s lawyer went thoroughly into this problem, because one witness from St. Vincent’s said that the person (possibly the x-ray technician) who recorded the incorrect statement hadn’t really written it down officially, but as a practice often just talked informally to the patient (me, in this case), asking how the injury occurred, and then scribbling an informal note on a piece of paper. That note had later been inserted into the computerized record.

So plaintiffs, I strongly suggest two things: first, read every single line of your record — that is, all the evidence, documents, potential exhibits in your case, and tell your lawyer if you see anything wrong or incorrect. And second, when you first talk to your lawyer, tell him you want to see all the above material when he collects it, and that you expect to be informed of and invited to all depositions in your case.

Lordy me. You shouldn’t need to tell him this. You shouldn’t.

But do it anyway, just in case.


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