SOME POSSIBLE DEPOSITION QUESTIONS FOR LAWYER MALPRACTICE CASES

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 in a 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? You didn’t try did you? 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.

[The “You would agree. . .” could also be “You could agree,” or “You do agree,” or it could be “You agree. . .]

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 it?

And so on. . . and on. . . and on. . . .