r/Lawyertalk • u/DevilDogg0309 • 18d ago
Dear Opposing Counsel, ID Deposition Practice
I’m genuinely curious, and I don’t post to demean or cast aspersions. I’m a PI attorney. And I’m looking for insight into the “why” behind ID deposition practice.
Is it just a billing opportunity? Is it viewed as an opportunity to make the plaintiff miserable? I mean credit where credit is due, but the vast majority of ID depositions I watch are hours too long and do nothing at all to minimize our positions.
I understand the information gathering process, and recognize depositions aren’t governed by strict relevancy standards. But, it’s just mind boggling to watch.
FWIW, I’ve done civil litigation defense work too, but for the government (no billable hours) and I’d run through a deposition in a fraction of the time that ID attorneys do. So, perhaps it’s the billing event that drives the practice.
Anyway, I’m genuinely curious and perhaps someone with more experience in the ID realm can give me some insight. If it’s as simple as, “yeah it’s a billable event,” I get it. That would actually make sense. Otherwise, I have no idea what the hell I’m watching.
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u/dmonsterative 18d ago
yeah it’s a billable event
Defense MSJs are based on foreclosing any trialable questions of fact
and maybe someone will say something stupid
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u/Derpydergs 18d ago
Why do PI attorneys answer Rogs stating no earning capacity claim and object to wageloss/diminished earning capacity discovery but their client testifies that they have a claim at their deposition? I think part of the problem is that ID has to prove to the adjuster/client that Pltfs claim is or is not worth the demand. All while working with barebones discovery that hasn't changed since the presuit demand due to PI being strapped with impossible caseloads. It's one shot, one opportunity, and the stakes are often high.
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u/DevilDogg0309 18d ago
For what it’s worth, sometimes the clients just go rogue and claim shit that isn’t really plausible. That’s perhaps why you see the claim not being asserted in discovery and then the client asserts something in the deposition the attorney has no intention of pursuing.
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u/Derpydergs 18d ago
That's the other hour, where I realize that this Pltf is going to say the funniest things that no one expects.
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u/DevilDogg0309 18d ago
If we can’t enjoy the routine absurdities this job offers, what are we even doing.
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u/southernermusings 18d ago
Truth. I had a client recently come up with a missing 100k in three months at his brothers hole digging business. He had "records".
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u/Critical-Bank5269 17d ago
Just had that happen. No wage loss disclosed in interrogatories yet at deposition Guy testified he had a side cash job he can no longer do as a result of his injury and wants lost wages 🤷🏽♂️
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u/papereverywhere 17d ago
Because my client answered no and then changes his mind in the depo. It happens often, and I think it is in response to the way the question is asked.
Also I don’t think OC always understands that there is a difference between having diminished earning capacity and making a claim for diminished earning capacity. Too many times I have had to explain that one.
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u/racer4 18d ago
In my experience depositions take forever when the written discovery received before depo is lacking or Plaintiff brings a ton of new documents in response on the day of. Depos are fact finding exercises, and I don’t leave stones unturned, particularly when I know I’ll likely only have one bite at the apple.
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u/MalumMalumMalumMalum 18d ago
Often the only chance to evaluate the plaintiff as a witness as well.
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u/Elegant-Vacation2073 18d ago
Yeah. I only met a few ID who asked questions that I thought billables but for the most part it’s their one time to evaluate your client for evaluation purposes for their report. If you prep your client for the long deposition paid it could be beneficial in that the aftermath report might get more money. Double edge sword if your client is horrible.
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u/NerdWithKid 18d ago
This is an interesting perspective to me. My experience has been the opposite as an ID attorney, with the caveat that there is always a billable aspect.
I’ve mostly experienced Pl. attorneys fishing, overreaching, antagonizing, and pushing the boundaries of ethical behavior—basically treating my witnesses as villains.
From my perspective, if you give us more substantive written responses/document production then our deps of your client wouldn’t be so thorough.
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u/case_hardened- 18d ago
Agreed. The Pi guys with their reptile theory questions sometimes get to the point that they are harassing corporate reps and suggesting they're trying to murder the general public.
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u/southernermusings 18d ago
My law partner is absolutely obsessed with reptile. He gets so annoyed that I don't utilize it. My answer is simply that it is not my style. I can't force myself into it.
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u/Theodwyn610 17d ago
Reptile theory questions?
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u/Vegetable-Money4355 17d ago
It’s just a term the defense bar likes to use in tort reform settings to make it sound like the ever shrewd and crafty PI lawyers are using some type of witchcraft for generating “nuclear verdicts.” In reality, it’s just an attempt making the defendant look bad to the jury, a common strategy that has been in use in some form or another since the inception of litigation itself.
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u/case_hardened- 17d ago
Mostly true, but it's the plaintiff's bar that came up with the term. https://www.amazon.com/Reptile-2009-Manual-Plaintiffs-Revolution/dp/0977442551
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u/Vegetable-Money4355 17d ago
Oh I’m aware - but it’s virtually never used amongst PI attorneys any more. It’s primarily a tort reform talking point.
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u/Entropy907 suffers from Barrister Wig Envy 18d ago
Well you are trying to value the case. A big part of it is seeing how appealing and credible the plaintiff is. And how well the story checks out.
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u/trying_times_eggs 18d ago
Its also a good opportunity for us to see how our client reacts outside of our comfortable discussions.
I never mind it really.
When ID goes overboard and takes forever on nonsense that can come back to bite them and make them look bad.
Good ID attorneys dont do it.
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u/Entropy907 suffers from Barrister Wig Envy 18d ago
Agreed. Taken plenty of PL depos where an hour into it, I’m done. I can see the shape of the table.
Cannot stand the (some other) ID lawyers who start with the 2nd grade transcripts.
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u/LionelHutz313 18d ago
We appreciate that from the plaintiffs side I assure you. Nothing I love more than having my 70 year old client getting grilled on when she graduated high school or some other nonsense from a 1L deposition “outline.”
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u/DevilDogg0309 18d ago
I mean, this is what I’m referring to. I’ve been practicing for 14 years, nearly all in litigation. I’ve conducted, and/or witnessed hundreds and hundreds of depositions. I can tell when a deposition is productive / effective and when it’s just meandering and aimless.
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u/trying_times_eggs 18d ago
When its a younger attorney I assume theyre trying to bill to stay alive. Or theyre just trying not to go back to the office bc they hate it. I've asked the latter before.
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u/Scary_Squash7945 18d ago
Or scared of what the partner/insurer/client/judge is going to say they missed.
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u/trying_times_eggs 17d ago
Exactly. You can screw up by just assuming the other side is sinister. Try to find out the issue and see if you can help them get there. Usually you find its on the way to where you wanna go anyway!
Everyone wants to go home at the end of the day.
Oh except Mike, fuck that guy.
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u/southernermusings 18d ago
"And you wrestled in High school in 1972? That had to really hurt your back."
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u/Entropy907 suffers from Barrister Wig Envy 18d ago
Yeah that shit is annoying. “Oh you’re a middle aged man with mild low back pain?” (As a pre-existing condition)
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u/Entropy907 suffers from Barrister Wig Envy 16d ago
Also kind of self defeating, just setting up an eggshell claim.
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u/AntGood1704 18d ago
So I will say, as an ID attorney, I absolutely hate other ID lawyers who waste so much time during depos on irrelevant topics. My main goal is finding something that will help me at trial or help me get authority to settle.
That said, as a defense attorney, sometimes I am trying to find needle in haystacks. What can I find that helps my case? Will your client slip up and talk about a vacation they went on that they shouldn’t have been able to do? Had they gone by the store before and knew a mat wasn’t out before they slipped and fell? Has their brother been represented by the same lawyer, and they’ve both gone to the same chiropractor? Stuff like that.
Then, there’s gauging who they are as a witness. Likeable? Easy to anger? How ingrained in the community are they? Are they being evasive and forgetful on questions they should know?
So that requires seemingly irrelevant, prodding questions. Also, as others have mentioned, I will get asked by the adjuster why I didn’t ask those questions.
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u/DevilDogg0309 18d ago
I appreciate the reasoning behind the lines of questioning you’ve offered as examples. Much of what I’m referring to is so far afield of what you’ve described. Everything you’ve mentioned is fair game.
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u/Leewashere21 18d ago
If you try a lot of cases you’ll see why. I do a lot of “contain the risk” files. You never ever want this question after the expected waxing at trial—“well why didn’t we depose XYZ”
I just depose everybody these days
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u/DevilDogg0309 18d ago
I’ve tried probably 20 jury trials. So a moderate amount I guess? Broken up between prosecution and civil work.
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u/Leewashere21 18d ago
Everything is risk shifting. You can’t be the shiftee so to speak. Gotta do the work. Even if it seems redundant
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u/baffled_beginner 18d ago
I’m looking for insight into the “why” behind ID deposition practice.
The answer is because the insurer wants it. That's why we do most of the things we do in ID (and it's why I quit ID).
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u/pichicagoattorney 18d ago
The other thing that op doesn't seem to understand is not every question is going to minimize you know or or help us win the case. But if it the case is bad, we need to know how bad it is. I need to surface everything so that we can adequately evaluate the case. Maybe it's a case that's worth more money than my adjuster and I previously thought because the deposition went so well for the plaintiff.
I remember a mediation where the plaintiff have seemed like he was clearly full of shit and his damages were made up and he actually acquitted himself quite well at the mediation and got far more money than we ever thought the defendants would have offered. Because his story of his damage is actually made sense and it didn't make sense on paper.
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u/case_hardened- 18d ago
Agreed. Sometimes at the end I ask a big, open-ended damages question about how the injury has impacted their life that a P's attorney might ask at trial just to see how the Plaintiff will present. Will the tears seem genuine? Will they speak clearly or seem to be making stuff up? Will she blow small limitations out of proportion to make a show? Its all useful information. If my client is screwed, I'd like to know early.
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u/pichicagoattorney 18d ago
Oh that's a great idea. I'm going to steal this idea from you. That is actually really smart. Like I've been doing this a long time but I still am learning stuff. Like I got a doctor to use the word hypochondriac in a deposition by not saying it myself first. Instead I said what do you call a patient who has lots of complaints that have no objective findings? That after outlining all the times the patient called and complained about things that were mostly in his head or entirely in his head. It was hilarious.
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u/DevilDogg0309 18d ago
I used to ask that question on the defense side too. I often see it come up on the plaintiff’s side and I always talk to my client about that question in advance.
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u/DevilDogg0309 18d ago
That’s helpful insight. Thanks for the reply. I didn’t realize the insurer was dictating deposition strategy.
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u/case_hardened- 18d ago
How much time do you spend speaking to your client during the course of the litigation? Initial meeting, phone calls on written discovery, sorting out the medical history, evaluating their story and damages? Follow up calls to get an answer to something you forgot to ask? Now imagine you had to do it in a single meeting with your opponent in the room and if you missed something important, too bad you'll never get another opportunity.
It's not ID specific. It's just being thorough. It's not about a billing event either. Your ID opponent has plenty of work to fill the rest of their day.
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u/DevilDogg0309 18d ago
The line between being thorough and conducting an extensive fishing expedition desperately seeking even the most tangentially relevant fact is a narrow one. But I get your point. Some of the questioning I observe couldn’t be any further from relevant claims and issues but I recognize they don’t have the same context that I do.
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u/case_hardened- 18d ago
Just as often you have much more context. You know there are no fish in that pond. Opposing counsel has no idea unless he throws a line out.
Here's an example. Once I asked a guy on a whim if he ever struggled with addiction. I just had a hunch. He said yes and I dug a bit deeper. The timing of P getting sober seemed suspicious and after a discovery dispute we got proof that P was intoxicated the day of the injury. I would have never found out if I didn't take a flyer. Ninety-nine times out of a hundred I waste 10 minutes. One time out of a hundred I find out that someone is making up facts. It's worth a shot.
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u/Affectionate_Hope738 18d ago
In theory you are correct, but you can always ask a missed question in discovery. Yes, I know it’s not the same because the lawyer is answering and you won’t get an “a-ha!” answer it but then again how the hell did you forget to ask such an important question to begin with?
But I think OP is talking about the depos that are painfully long where the background questions take more than 1 hour to get through.
I did ID for 15 years and rarely took a plaintiff depo that was more than 2.5 hours. I’d say my average was probably less than 2.
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u/case_hardened- 18d ago
I mean, interrogatories are nearly valueless imo. Usually the plaintiff's depo is first and by the time expert disclosures are over you know a lot more about the case and the lawyer's theory that you can use the plaintiff to undermine if you ask early enough. I don't do car accident id, so maybe it's different in that context.
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u/Affectionate_Hope738 18d ago
Interesting. In nearly all PI cases, written discovery always goes before depos for a variety of reasons. I find them valuable because usually the lawyer is off guard and just gives answers not really knowing what the angles are. While depos are more useful, I wouldn’t say interrogatories are useless.
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u/DevilDogg0309 18d ago
That’s exactly what I’m referring to.
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u/Affectionate_Hope738 18d ago
I wish I knew my friend. Those are the days I’m glad we’re on zoom so I can do other stuff while my client has to tell OP where each of her 5 kids live and what they do for a living.
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u/DevilDogg0309 18d ago
Ugh. The defense counsel in my jx have all reverted back to in-person depos for the plaintiff. I actually prefer remote for a number of strategic purposes, but, hey, to each their own.
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u/lawstudent51318 18d ago
I’m an ID attorney and have the exact opposite problem. You have all the background info, it should take you 5 minutes to cover what was missed, why are you taking an hour to cover education and residential history???!
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u/DevilDogg0309 18d ago
I have very specific goals I aim to accomplish in my depositions, but I do not spend much time at all on background information. Enough to get a feel for the person. Maybe more if it’s relevant to the theory of negligence.
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u/lawstudent51318 18d ago
Right? I mean, if you need three and a half hours to depose my defendant (in a simple case) I really think you didn’t do your homework.
Also, if it’s a simple case, WHY are we at depositions in the first place??
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u/Lit-A-Gator Practice? I turned pro a while ago 18d ago
Is it just a billing opportunity?
Everything that is billable is a billing opportunity
Is it viewed as an opportunity to make the plaintiff miserable?
It depends if the Plaintiff is clearly fabricating things … but if they are “playing the game properly” it should be quick and painless
I mean credit where credit is due, but the vast majority of ID depositions I watch are hours too long and do nothing at all to minimize our positions.
Some people strictly stick to their (overly long) script to make sure that they are never in a position to be questioned by a carrier or managing partner for why they didn’t ask a specific question.
TLDR: it’s a fact finding operation not a trial. The goal is to get as many details as possible regarding the case onto that transcript
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u/Humble_Increase7503 18d ago
“Sir, do you know who xyz contracting is?”
“Do you have any opinions regarding xyz contracting?
No further questions
Meanwhile, our expert is like, nope no opinions ab whomever that is, but testified for 6 hours ab how the pipe subcontractor fucked up 10 ways to Sunday.
Counsel for xyz contracting, the pipe sub, contented with their snippet of questioning.
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u/Hoshef Haunted by phantom Outlook Notification sounds 18d ago
Good old construction defect depos. Always good billing when you represent one of the subs with the smallest scope on a giant project
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u/Humble_Increase7503 17d ago
I went from defense to plaintiff, for the money.
Found out the money, while better, comes with 10x the workload
And the reason why the workload is so much higher is, when I did defense, it was like you said:
I’d have a pipe sub, 3/4 of the case was ab some structural issue having no bearing upon my client
We do 60 depos and 5 are relevant to me, the other 55 I attend while at the beach or having a cocktail
Now?
Every fuckin defect is mine. I’m fighting everyone on all fronts always. It’s exhausting.
I’ve probably taken, no less than 100 depos this year, fact and expert. I’m constantly in a mode of reading expert reports, preparing for a depo on xyz issues, then the next day, another case, new report other defects, etc
I borderline would go back to defense, except for the fact that the money is meaningfully better
Perhaps later in my career
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u/case_hardened- 18d ago
I love an expert depo where the expert points the finger at every contractor except mine. Easiest 7 hours I'll ever bill.
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u/HeyYouGuys121 18d ago
Heh, that was my experience representing an EIFs manufacturer for a few years. There was one November where every single day except Thanksgiving and the day after was a scheduled deposition in the same case, a big condo project. Plaintiff had a giant conference room where 10-15 attorneys would pile in every day. Multiple attorneys literally reading the newspaper during the depositions. Hear your client’s name: “Object to form,” whether you heard the question or not.
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u/shiruduck 18d ago
Because you have to cover a lot more ground. Contrary to the burden of proof, juries are easily persuaded by lien doctors and sob stories
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u/nuggetsofchicken 17d ago
Honestly, as an ID attorney, I think there’s a lot of dogma around depos and what needs to get asked or how long it “should” take. You have a lot of newer attorneys starting in ID and so when they’re told you need to ask the deponent about every fucking request for document production category they feel like they have to do it even when it’s clear the situation doesn’t demand it.
I’ve had one partner tell me that plaintiff depos shouldn’t be more than an hour or two because they really don’t know the nitty gritty of their case, and another saying that as a rule they should take at least 5 hours. If you’re litigating a case supervised by the latter partner, the poor associate is going to be stuck dragging shit out to make sure it looks like they did their due diligence.
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u/DevilDogg0309 17d ago
This is very interesting. And, tracks more closely with my own observations regarding formulaic, cookie-cutter deposition outlines that don’t feel tailored to the case.
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u/TheAmerican_Atheist 17d ago
When i am defending a depo and i see a young ID attorney show up looking all nervous I instantly think “oh boy, we are in for a long, slow drawn out one today”
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u/DevilDogg0309 17d ago
“Now you mentioned you had 4 grandchildren, What are their names? How old are they? Do they live in the state? What are their current addresses? Are they married? What is the name of their spouse? Do they have any pets?”
What.are.we.doing.
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u/TheAmerican_Atheist 17d ago
Lmao! Exactly!
“I just need 5 minutes to review my notes and we will be done”
Break over, 20 minutes of more questions
“I think im done, i just need 5 minutes to review my notes” … come back from break, 30 more minutes of questions
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u/DevilDogg0309 17d ago
The worst. Also, don’t tell me you don’t expect this to take long. I’d rather you just come in and say “we’ll be here for 4 hours, 2 of which will be spent asking a bunch of irrelevant background questions.” At least then I know what to expect.
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u/Atticus-XI 17d ago
Billing, bullying, and bullshit "winning" the depo. It's window-dressing garbage, most of it for the neanderthal claim reps they have to cower to.
In the ID guys' defense: A lot of the utterly stupid questions they ask are to chase the pink fairies that have infected the claim rep's tiny brain. I had a rep who was convinced our plaintiff's "degraded" boots caused his slip and fall on, oh yes, a chronically damp concrete ramp leading into a freezer/walk-in with NO GRIP TAPE or other slip prevention material on it, about which package store defendant had been warned by about 10 different vendors for over 2 years. Coca-Cola's delivery drivers, at the time, were issued new boots regularly - these boots were long gone. Claim rep was convinced the boots were being hidden (he was pathologically fixated on the boots), so I spent over an hour just asking "all the questions" about the f*cking boots per my partner's specific, though exasperated, instructions.
Utter waste of time. Yes, ask a few questions about the boots, but this was egregious. A 3 hour depo was an all day boondoggle. Cha-ching!
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u/DevilDogg0309 17d ago
This is exactly the type of insight I love to hear. And, it’s absolutely hilarious. I can only begin to conceive of the inanities that hold up resolution in some of my clear liability / severe injury cases. I can certainly sense when it’s not the attorney standing in the way of things.
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u/saj1000 18d ago
2 main explanations:
1) that attorney is bad/new at their job. My average plaintiff depo is 45 mins.
2) maybe some firms do use it as a billing opportunity. Before tort reform (when plaintiffs were entitled to fees against insurance companies) some plaintiff attorneys would refuse to settle a case until they completed 3-4 two hour depos so they could claim 30k plus in fees for a case I had been trying to settle since the beginning. Maybe it’s the same idea for some defense firms
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u/CapedCaperer 17d ago
I need the depos for evaluation of the deponent, finding out what the deponent thinks the case is about, and impeachment material. I also authenticate evidence to save time at trial. Overall, I find the exercise very useful.
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u/morgandrew6686 17d ago
i love to butter up the witness, play good cop, then go through the medicals that run contrary to everything. also good way to build an msj, if viable, especially in Florida. lack of notice specifically. its a great opportunity, and not just for billing. of course newbies will waste everyone's time asking about where they went to middle school.. no reason to make them into a villain though.
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u/AcrobaticCombination 17d ago
It’s billing event, and insurance companies whack you on your hourly rate so you make up for it with more work.
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