Apr 30, 2019
Winning Techniques for Depositions in Premises Liability Cases
Apr 30, 2019
By John M. Feder
A successful premises liability claim will almost certainly require the taking of depositions. This article discusses some tried-and-true strategies for positioning your premises liability case into a winning one, including sample questions, when the defendant is not an individual.
1. Obtain binding admissions from defense representatives.
Using Code of Civil Procedure section 2025.230, notice the deposition of the person most qualified (“PMQ”) to testify on behalf of the entity. Obtaining admissions that bind the entity can go a long way toward winning your case. However, securing the information you seek can be a “cat and mouse” game with opposing counsel. Section 2025.230 enables plaintiff to force the defense to designate their most qualified person to testify on topics described with “reasonable particularity.”
Specifically, it provides:
If the deponent named is not a natural person, the deposition shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.
The threshold issue for plaintiff’s counsel to consider in noticing a PMQ deposition is framing the deposition topics with “reasonable particularity.” The challenge is to describe the deposition categories broadly enough to allow discovery of information, but narrowly enough to cover the specific issues in your case. There is no limit on the number of categories you can describe in requesting the defense to produce their PMQs. Accordingly, it is helpful to list issues both broadly and narrowly to ensure that the defense is producing the witnesses you need to depose.
Once plaintiff notices a PMQ deposition, it is the duty of the defense to designate and produce its officers, directors, and employees “most qualified” to testify. The purpose of this code section is “to eliminate the problem of trying to find out who in the business hierarchy has the information the examiner is seeking.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395.) It is the defendant’s responsibility to produce the most knowledgeable person in its employ and make sure the person has access to information and documents reasonably available within the corporation. (Id. at 1390.)
2. Videotape the PMQ deposition. Ask the deponent when he first learned of his designation, and in what subject(s) he was so designated.
Mark the deposition notice and then ask the deponent the following questions:
- What did you do in order to prepare yourself to testify as the person most qualified to testify for your company?
- Did you speak to any company employees to gather information for this testimony? Follow up with the names of all people he spoke to and the details of every conversation.
- Did you consult any documents that the company had on file, including emails, correspondence and notes? Have the witness identify each and every document looked at to prepare for this responsibility.
Often, the designated PMQs lack of preparation for the deposition is astonishing. Your video clip will show your jury how the company hid the truth from them. Juries are very unforgiving of cover-ups.
3. Establish the general safety rules before delving into the specifics of the incident.
At trial, you want to prove that the defendants are trained to follow the rules, but that they chose not to follow them in the case of your client. Early in the deposition, establish the written rules and procedures that apply to the case.
Resist your urge to attack. Instead, start with easy questions and develop a rhythm without defense objections. Remember the deponent’s natural desire to save face. Give the witness a chance to save face by blaming the boss above or the employees below him.
Carefully review the written policies and procedures that relate to the disputed issues. Explore policies and procedures in general before going into specifics related to this incident. Establish that there were written policies, i.e., rules, governing responsibility and behavior.
Establish it was the deponent’s custom and practice to review all these written policies by questions such as:
- Did you make it your custom and practice to follow these policies?
- Is it important to your company to follow its safety policy?
- Is it important to you as a manager to follow your company’s safety policy?
- Do you receive training in the company’s safety policy?
- Are you asked to maintain a copy of the company’s safety policy at your desk?
Develop the importance of accident prevention to the company and to the witness personally.
Let the witness tell you how extensive his experience is in his area of expertise.
Your goal at trial is to prove that the defendant knew of the danger, appreciated the risk, appreciated the gravity of the harm, understood the exposure, and had employees on site whose job it was to understand the policies, procedures, and precautions that would have prevented the injury.
4. Show that the defendant chose not to follow the rules, resulting in injury to your client. Sample questions that require an affirmative answer are:
- Is it your practice to keep the jobsite safe for all employees and subcontractors?
- Is it your practice to require good housekeeping to keep the premises free of tripping hazards?
- Do you agree safety begins at the top?
It is unlikely that any representative would ever answer “No” to any of these types of questions.
5. As you prepare for your depositions, think about your closing argument. What do you need to prove to win this case?
Develop a chart for final argument dealing with comparative fault issues by contrasting the various parties as follows:
Who had CONTROL?
Who had the EXPERIENCE to recognize the hazard and the risk of harm presented by the hazard?
Who had the EXPERTISE to correct the hazard?
Who had the AUTHORITY to initiate corrective measures?
Who had the POWER?
Who had the first OPPORTUNITY to cure the hazard, thus avoiding potential for harm?
Your systematic discovery approach will pay dividends to your client. Prior to taking any depositions, make sure you obtain all contractual agreements, safety meeting records, memos, and any other relevant correspondence. Also be sure to specify all areas in which testimony is desired when you ask defendant to designate its PMQ. Inquire about the general safety rules for the company, and establish that the entity chose not to follow them in your case.
The testimony you obtain in depositions is the backbone of what you will use in trial. Develop it carefully to orchestrate your best chance of success!
John M. Feder is a partner at Rouda, Feder, Tietjen & McGuinn. He has been representing plaintiffs in catastrophic personal injury cases for more than 35 years. He is a past president of the Consumer Attorneys of California, and the San Francisco Trial Lawyers’ Association. He has lectured extensively throughout California, and has authored many articles about personal injury litigation. His practice has resulted in numerous seven and eight figure verdicts and settlements. For more information, please visit: www.rftmlaw.com