SOME POSSIBLE DEPOSITION QUESTIONS FOR
LAWYER MALPRACTICE CASES


Michael Sean Quinn*
I am a fan of  the use of leading questions, even in
depositions.
Some of the questions are treated
herein as declarative sentences.
That is designed to indicate that a
lot can be done by tone and facial expression.
You
did not do the best that a reasonable lawyer would do in this kind of case?
You don’t
care what the answer is.  If L says No, the next question is, “Tell me
how?”  If the answer is Yes, stop.
         
You
did not do the best you could?
If L says No, ask, “What did you not do?  What did you do poorly?  What did you not do that you should have?”  But, if L says Yes,  let it go.
You
didn’t do all of what a reasonable lawyer in the same or similar case would do,
did you?
If No, ask, “What all did you leave out?  List for me what you did not do which you
think you should done.”  If Yes, leave it.
Your
investigation of the case was not up to snuff, was it?
If Yes, stop.  If No,
ask, “What all did you not do, that you think you should have?  What all did you not do, that you think a
reasonable lawyer would have done?”
C
did not tell you this or that, did she? And so on.
Your
claims file does not report this.  It
does not report that.
          If
Yes, the demand is “Show me”.
         
If No, move to a series of
open questions.
You
believe that C does not lie, don’t you?
If the answer
is Yes, stop.  If the answer is I Do Not, ask for a complete list.
For each
entry on the list, ask, “You don’t really know that, do you?” 
          If
L says I do, then ask “How?”  Ask again for more details about the            
         
basis.
You
believe that C tells the truth, don’t you?
If Yes, stop.  If No,
ask for a list—a compete list.  Ask
about the empirical basis.
That’s
not in your file, is it?
          If
Yes, it’s “Show me.” 
You
leave important stuff out of your file, true?
          If
No, give a list, maybe.
          If
Yes, there a variety of things to
do, and maybe several can be done.
You
know that all attorneys owe every one of its client’s fiduciary duties, true?       
If No, stop.  If Yes,
ask for a definition.
You
did not discharge all of your fiduciary duties to C, did you?
          If
No, stop.  If Yes,
think about stopping.
If
L asks for a definition– “So you don’t know the meaning of the word, do you?”
You don’t
care what the answer is.  It’s clear that
a Yes answer is a wonderful answer.  You may want to stop.  If it’s No,
ask for a list, and then pursue the empirical foundations of the list.
You
did not advise your client in a satisfactory way, true?
If
C says you didn’t advise her as to X, she is lying, true? 
X
was an important issue in the case wasn’t it?
You
didn’t discuss X with her at all, did you?
Again you
don’t care much what the answer is:  (1) YES, I DID. (2) GRANTED I DID NOT. (3) I
DON’T REMEMBER, CHECK MY FILE. (4) I DON’T REMEMBER. ONE REASON IS THAT I DON’T
REALLY KEEP THAT SORT OF THING IN MY CLIENT FILE. (5) WHAT DO YOU MEAN BY
‘ADVISE’?
        
The next set
of questions are sometimes a bit over done. 
Nevertheless, you still often do not care what the answer is.  If who get what the witness takes to be a
base hit for him, (1) always consider asking “How?”  (2) Also consider specifying some act ina
general way—as a hypo if necessary—and then use a leading question to ask, “Is
it not true that failing to do X is below the standard of care?  Or, “Is it not true that doing X is below the
standard of care?
You
did not take the deposition of Quinn, true?
No
one did, true or false?
He
was the expert for the opposite client, true?
You’ve
said in you interrogatories that you thought you could get
him disqualified, true?
Did
you try?
You
did not succeed, did you?
Your
Motion on this matter was not up to snuff was it?
Even
the judge said that, correct? 
You
did not even spell his name correctly did you?
His
last name is not “Quine, true?”
His
middle name is not “Scum,” right?
His
first name is not “Moncoile,” don’t you agree?
You
can spell the English language, isn’t that right?
You
had received Quinn’s report, had you not?
You
are not an “idiot” are you?
You
have a degree from the University of Phoenix, do you not?
And a law degree from the American University of the
Canary Islands, don’t you?
[And
so on and so forth?]
You
would agree, surely that the DRs [Texas Disciplinary Rules] are part of a
manual for competent lawyer   work.
You
would agree that the DR,s are fundamental principles of lawyering morality,
true?
Do
you agree that following the DRs is consistent in every way with providing a
client with a vigorous.
Do
you reject the idea that following the DRs cannot in and of itself constitute
legal malpractice?
You
would also agree that the Texas Lawyers Creed is also a set of guidelines or
acceptable practice, wouldn’t you.
And
the same is true for the ABA Model Rules isn’t is.
         
And so on.
The End.
                  

Michael Sean Quinn, Ph.D, J.D., Etc.
Quinn & Quinn
2630 Exposition Blvd  #115
Austin, Texas 78703
(o) 512-296-2594
(c) 512-656-0503