July 11th, 2020

Defending the Deposition of Developmentally Disabled Client

Representing a developmentally disabled (DD)  client brings considerations beyond what we typically encounter. Here is how I address the deposition without first getting a protective order.

DD Defined. RCW 71A.10.020(4)  provides in part: “Developmental disability” means a disability attributable to an intellectual disability…[which] originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial limitation to the individual.”

Competent to Testify. The DD client is competent to testify so long as he is capable of speaking the truth, receiving an accurate impression of it, has sufficient memory to retain it, has the capacity to express it in words, and can understand simple questions about it. Understanding and answering simple questions is key when the DD client must be examined.  In a deposition we have competing issues-the right to conduct legitimate discovery verses the right to protect our DD client from discovery abuse.

Witness Preparation. For the DD client  preparation is minimal. First hear the key elements of the story. Do not rehash the story. Tell the DD client the lawyer on the other side will ask questions about what happened: “Listen to the question.”  “Answer the question.” “Always tell the truth.”

Open and Close Door. We must allow opposition to engage in legitimate discovery. We must leave the door open so long as this is occurring. Once an area has been explored, we are confident the record reveals this, and further inquiry is oppressive, I close the door as follows:

CR 26 (i) Conference. With the DD client out of the room I begin a separate record: “Pursuant to CR 26(i) counsel must confer before the court will entertain any motion or objection regarding rules 26 through 37. This is a CR 26(i) conference.”

Court has Discretion to Protect. “While [DD Client] is competent to testify he is developmentally disabled. Pursuant to CR 27(a)(2) the court shall make such order as appropriate for the protection of the developmentally disabled party. Additionally as his attorney I have an obligation to protect [my client] from discovery abuse.”

CR 30(d). “An instruction not to answer is proper when made pursuant to CR 30(d).” “Pursuant to CR 30(d), at any time during the taking of a deposition upon a showing the examination is being conducted in such a manner as to unreasonably annoy, embarrass, or harass the party the court may order the deposition cease.” “Upon demand of the objecting party the deposition shall be suspended for the time necessary to make a CR 26(c) protective order motion.”

CR 26(c). “The court may make an appropriate order to protect a party from annoyance, embarrassment, or oppression. At this point in the deposition further questions concerning [area where we are closing door] constitute oppression [of DD Client].”

Instructing Not to Answer.  “I am instructing you [my client] will not  answer further questions (set forth area[s] where you are closing the door as you are confident the judge will grant a protective order prohibiting further discovery). I am doing this outside of his presence because I do not want to chill further legitimate discovery.”

Your Choice Counsel. “Counsel if you chose we will proceed to court now to discuss a protective order. Alternatively, continue to explore other areas of discovery. If you deem it necessary to seek further discovery into the area I am instructing my client not to answer we can cooperate on scheduling a protective order hearing at a later date.”

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March 23rd, 2011

The Deposition

In this post I discuss the deposition from the perspective of my party/client as a witness and how a deposition is used at trial.

The Deposition. Evidence at trial is in two forms testimony and documents. The deposition allows a lawyer to discover what the witness will say at trial. Generally the most important witness in a personal injury case is the party plaintiff. The injured plaintiff is almost always deposed prior to trial.

Deposition of Plaintiff. Usually defense will send written questions (interrogatories) before taking plaintiff’s deposition. Time and thought need to go into the answers to interrogatories as the answers are plaintiff’s lines for the deposition. The key to a deposition is to tell the truth with power language in a direct way. Answer the interrogatories in this way to set up the deposition testimony. Eliminate modifiers and speak with nouns and verbs which translates strength.

The key to deposition and trial testimony is to be able to describe: how the injury occurred, where the injury is, what has been done to address the injury (following doctor’s advice and doing  own recovery program), strength and range of motion limitations, impact on employment and activities, and pain described without whining. Rarely show anger at defendant. As a rule do not show concern about personal property. Stick with the injuries and belief injuries will be overcome through dedication to recovery.

Defending Deposition. Let the defense lawyer ask his question unless objectionable at trial, if so, make the objection before the answer. Never let defense lawyer bully a witness. If this occurs ask court reporter to read back offensive line of questioning. Ask witness if questioning intimidated them. Ask court reporter to separately the improper section. Tell reporter you are ordering this section of deposition. Inform offensive lawyer this will be presented to trial judge at proper time.

Deposition at Trial. Plaintiff needs to read her deposition before trial. Some lawyers will have most if not all of their cross examination prepared from the deposition. There will rarely be a question not taken from the deposition so the answer stays the same from deposition to trial.

On the use of a deposition to impeach, impeach on big issues and misstatements.  Pass on the small stuff. Have significant testimony outlined before cross examination. When you have an impeachable statement do the following:

1.  Set the stage by asking the question that leads to the impeachable answer. After getting the answer, examine the witness on fact of deposition.  Occurred on,  occurred at, under oath, knew it could come back at trial.

2.  Move to publish deposition handing original to clerk.

3.  Hand original deposition to witness, and tell him to turn to page where answer is.

4. Position yourself so witness is facing jury. Tell witness line you are reading (at the line presenting fatal question). Instruct witness to read his answer.

5. Go to counsel table without saying anything as witness is facing jury. Buy 30 seconds to a minute. Come back to witness with different line of questioning.

You have correctly used a deposition.

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