How To Plan For Your (Inevitable) Deposition

March 9, 2000
Plaintiff's attorneys have quite a few tricks up their sleeves, but there are several ways to avoid falling victim to them.

Jonathan R. Cooper
Brzytwa, Quick, & McCrystal
Cleveland, Ohio


Whaddya mean it wasn't foreseeable?

There you are in a conference room with a court reporter and at least two attorneys. One attorney, the plaintiff's, is out to prove that you or your company designs, manufactures, and sells a product that is "unreasonably dangerous" or "defective." The other attorney is on your side.

The plaintiff's attorney will try to prove that the product (and hence his client's injury) is the result of shoddy engineering. The goal of every plaintiff is to create the appearance that you or someone you work with did not design or manufacture the product properly and that someone was injured as a result. Think of your deposition the way Woody Hayes thought of the forward pass: three things can happen, two of them are bad. The goal of this article is to prevent the bad things from happening.

If you are an engineer and your company makes a product, you can count on being deposed. Don't believe for a minute that you will not be. The deposition of the defendant's "in-house" engineer can be one of the most decisive events in any design case. The difference between an engineer who helps his case and one who hurts it is most often the result of preparation and technique. Effective preparation and proper technique minimize the risk of a bad deposition.

Your first step is to know what documents you have. The only way to do that effectively is to set up a document-retention policy and follow it. (See "Staying protected in product-liability lawsuits," MACHINE DESIGN, May 21, 1998, p. 100.) With a good document-retention policy, you will know what documents you have and how to find them.

Of course the next step is to look through your pertinent documents. This may seem like unnecessary work, but I have seen countless witnesses who have been surprised by their own documents. Plaintiff's attorneys are organized. Documents produced in one case will show up in another. You must be ready.

Although reading the documents is good, reading them with a purpose in mind is better. You need to think about the specific product defect the plaintiff is trying to prove. What do you know about how the accident occurred? As painful as it may be, talk to the lawyer who is defending your claim. Pin him down about what exactly he understands the plain-tiff's claim of defect to be. Also, plaintiffs often recommend some sort of "fix" to solve the problems they claim you caused. Ask your lawyer what fix, if any, the plaintiff is advocating?

Next, brainstorm with your compatriots. How would you criticize your product? Does one of your competitors do something differently? Are there other techniques available? For example, does a competitor use a different set of controls or remote controls? Are there options available that the plaintiff will claim should be standard? Is there guarding available that you do not use?

This is a good time to explore your reasons for not designing the product the way the plaintiff is arguing that you should have. Did the cost of the plaintiff's suggested fix impact your decision? Maybe the plaintiff's fix makes the product less useful. Or does the fix make the product more dangerous? In some cases the defendant or an industry group considered the plain-tiff's fix and rejected it. Why did that happen? If you begin to formulate what you believe the plaintiff's theory will be and how to defend it, you will begin to understand how the case will be mapped out.

Next, think about specific areas of questioning. Generally, the first line of questioning will involve your name, address, education, work experience, and background.

You will also be asked about potentially embarrassing events. A criminal conviction, job termination, or military discharge are common sources of questions. Almost anything that affects your general credibility will be fair game. Most often, the preliminary items are the first questions asked, but some attorneys start with more substantive areas and go back to the background information. If there are potential "black marks" in your past, you must discuss them with your attorney. There are ways to minimize their impact, or even turn them into positive points, but not without planning.

You will also face general questions about product design and current and prior work for your current employer. There will likely be an emphasis on products that you have had a hand in designing. The plaintiff's attorney is trying to get a sense of how you typically go about the design process. This is a setup. The attorney cannot lose. If you are generally sloppy, the plaintiff will use that fact against you. If you are generally careful and meticulous, or follow a particular design pattern, the plaintiff will try to show that you or someone else was not as careful as usual with the product in question. If the plaintiff can show that you did not follow even your own standards, the defense is in trouble.

If your case involves warnings, and most do, you will hear similar questions about warnings that you wrote. There will be questions about why particular wording was chosen on past products and why it was chosen for this one. The plaintiff's goal is to show either that you generally follow no recognizable standard or pattern, or that you usually do so but did not in this case.

With warnings it is again important to be aware of what is available in your industry. Do your competitors use different warnings? Are there standard warnings mandated by an industry group? Have the warnings been tested by anyone? If you have no standards or testing to back up your warnings you should be prepared to defend the particular word choice by other means.

There will also be more specific questions about the product involved in the accident. The plaintiff will try to prove that the product is unreasonably dangerous in a certain aspect and that you knew it. There will be many questions about how the product was designed and how it was manufactured. The plaintiff will try to get you to admit that the specific injury was or should have been anticipated.

One technique to make you seem at fault is for the questioner to get you to agree that "anything is possible." The next step is to get you to admit that because something is "possible" it is also "foreseeable." A good questioner will already have committed you to the idea that foreseeable risks should be examined and dealt with by the designer. The logical conclusion from this series of questions is that you should have anticipated whatever the plaintiff was doing when he was injured and prevented it by some redesign, guard, or warning.

Do not fall for this. "Possible" does not mean the same thing as "foreseeable." Moreover, most often the legal standard is that designers must design out, guard against, or warn against risks that are "reasonably foreseeable." In other words, would a reasonable engineer have foreseen that a reasonable person would do what the plaintiff did? So even if the plaintiff was doing something foreseeable, was it "reasonably foreseeable?"

The plaintiff's attorneys may also try to get you to consider fixes (garnered from a plaintiff's expert) that would be inexpensive and would prevent the accident. This series of questions is aimed at getting you to verify the fix suggested by the plaintiff's expert. Remember, however, that you only accept designs after a variety of testing. Most engineers that I know cannot responsibly endorse a design without some study and reflection. Also remember that designing around one accident is a bad design method and may have other implications for the product line. Moreover, there may be ways that the seemingly innocuous fix causes more pervasive dangers.

Your attitude and demeanor are also important. Your deposition is not the time to argue or be defensive. It is a time to be reserved and polite. Answer questions concisely and accurately. If you go beyond the question asked, you run the risk of triggering a line of questioning that neither you, nor the questioner, had expected.

The deposition is taking time out of your life, so don't prolong it with long-winded discussions. The trial, not your deposition, is the time to tell your story. Your deposition is also not the time to say you "do not know" when in fact you do know. If you did not know something at your deposition, there is no way for you to suddenly learn it for trial.

Another good technique is to think of something that makes you proud of your product. The best witnesses are those who are proud of their jobs, products, and companies. That pride is often infectious.

As a last word, make the attorney handling the claim (the one on your side) sit down with you to go over the case and review what he thinks the plaintiff will ask. You should also run through some mock cross examination to get a feel for the questioning. If the attorney representing you does not spend at least a couple of hours going over the case and the likely questions, you should consider whether you are being well represented.

Good luck.

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