Deposition of the Defendant Driver - basic checklist
Have taken hundreds of defendant driver depositions. Used to have a checklist to make sure I didn’t forget the basics. Lost that checklist at a few decades ago. Now as a mentor for young attorneys, have reconstructed one which am sharing with you.
Disclaimer: this is not an outline. Lawyers love outlines because we think if we prepare everything perfectly, everything will go perfectly. When an outline is strictly followed, there is no room for the unscripted. And often it is in the land of unscripted where the good stuff lies.
So use this as a checklist. Conduct the deposition in the moment. Dig in when you need to. Back off when it will help. Listen to what the witness is saying. And not saying. Make sure your question relates to the last answer given. Persist and don’t leave without complete answers.
Checklist MVC Defendant Driver
Background –
[Note: you can avoid doing this if answers to interrogatories have been completed. In that case you can make them an exhibit and have the defendant admit that their answers are true and correct. This can save about 20 minutes of time.]
o Name
o Birthdate
o Height
o Residence at time of incident
Who residing with you (maybe they told their family/roommate what happened)
o Residence now
o Past residences if relevant or if you want to test memory
o Educational history
Any studies in mechanics, engineering, medicine
o Family history
Marital status because of community property issues
If living with parents because of family car doctrine
o Employment history
Any employment involving driving, mechanics, engineering, medicine
o Criminal history (you should have run a search)
o Frequency drug/alcohol use (if applicable)
Any addition issues or treatment
o Medications at time of incident
o Medications now
o Eyesight
When last checked
o Hearing
o Any other health conditions that may impact ability to drive
Driving
o When did you get your driver’s license (you should already have a copy make an exhibit)
Explore any restrictions
Endorsements
Revocation
Specialty licenses like CDL
o Go through any other incidents before or after (pull driving history)
o Identify vehicle
Make, model, Vin, Color, year
Registered owner
If not defendant’s vehicle
Were you a permissive user
Who gave you permission
What was the scope of the permission
If you didn’t have permission explain
Purchased when – any paperwork
Was it in good working condition
If it wasn’t in good working condition then
Basis for any claim not in good working condition
Identify everyone who performed work on it
Why were you driving it if not in good condition
Get all documentation from dealership or any service provider or defendant. Make exhibit
Last time had the brakes, steering, etc. repaired and describe. Make exhibit
Where is vehicle now.
On the Job
o Were you on the job
o What were your hours that day
o Where were you coming from
o Where were you going to and why
o Identify employer or supervisor who directed/ granted permission
o If driving the employer’s car
Was it maintained for your regular use
Was it a preassigned vehicle
Where was it housed when you were not driving it
How many times driven it
Any training
o If driving own car
Did your employer reimburse you for mileage when you drove your car
How did you report mileage
Were you expected to travel on behalf of the employer
Cell phone/Vehicle console/Autonomous
o Does the car have a computer console
Describe
What was it featuring before the incident
o How did your cel connect to the vehicle
o Was it connected day of incident
o Where was your cel
o Name of cel carrier
o When is the last time you touched your cel prior to the incident
Text
Scan
Music/Radio
Call
o If partially autonomous
Describe what functions were in use
Leading up to incident
o Take us through the evening before
Drink/drug use
Time went to sleep
o That morning
Time awake
Drink/drug use
Medications taken
Dosage
With or without food
o Weather
o What where you wearing
Shoes
o Did you have food or drink in the car
o Any passengers
Identify
Describe what they were doing
o Audio on or off
o Sunglasses on or off
o Where were you travelling
o What is posted speed limit
What was your speed
o Traffic – light, heavy, medium
o What vehicles can you remember being next to other than plaintiff
describe
Incident
o Do you deny you caused the crash
basis
o Who or what caused it
basis
o Any obstructions
Describe
Height
Width
Depth
Distance away
If there was an obstruction, why didn’t you (slow down, stop, make sure you could see before proceeding)
o Any weather conditions
Describe
If weather was a problem why didn’t you (slow down, stop, make sure could drive safely)
o Where exactly were you right before the incident (use map and make exhibit)
o Time
How much time passed from the time you first saw Plaintiff before the crash
How much time passed from the time you realized there would be a crash until there was one
o Speed
How fast were you going
How fast was plaintiff going
How fast was anyone else going
o Distance
How far were you from Plaintiff when first saw them
How far were you when first steered away/braked/took evasive action
How far did you travel after impact
Where did the vehicles end up
Plot on map
o In your own word describe what happened.
Compare what they described to what told police – make statement an exhibit
Compare what they described to interrogatory response – make an exhibit
Compare to what is in answer to complaint – make an exhibit
Break it all down
o Describe force of impact
Visual
Sound
Smell
o Go through any photos of the scene – make an exhibit
o Pull applicable rules of the road jury instructions and pin them down on any applicable elements
o Pull law on any defenses and pin them down on any applicable elements
o In hindsight now, is there anything you would have done differently that day that could have helped to avoid the collision
After incident
o Did you call 911
o Did you call anyone
o Did you exit
o Did you check on plaintiff
Why or why not
What say to them
What they say to you
How did they look
Could you tell they were injured
Pain, crying, fear
Render assistance
o Describe scene
o Did other civilians come to scene and what did they do
o Describe police response
Describe the interrogation
Sign or recorded statement
Any arrest, citation, disposition
Name of officer spoke to
How long were they there
Is their description of the incident/mapping correct – make an exhibit
o Describe Fire, EMT response
o Did your supervisor arrive
o How long did you stay at scene
o Talk to any witnesses
Who, what, when, why
o Then where go
o You suffer any injuries – physical or mental
Have you had treatment
Is it ongoing
o Who else did you talk to about the incident
Make any notes
Accident report for work
Followup further with police
Friends, family, coworkers
After that day
o How many times been back to scene
o Ever speak to plaintiff or family
o What’s your understanding of plaintiff’s condition
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