SOME
POSSIBLE DEPOSITION QUESTIONS IN

LEGAL MALPRACTICE AND SIMILAR CASES

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

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.
Blogged on this general topic once before a while back. See 8/8/12. 
Some of readers found it interesting, so I do it again now.
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 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.