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PRE-DEPOSITION INSTRUCTIONS

The attorney for the other side in your case has scheduled a date for your deposition. This is a standard procedure in legal cases. A deposition is the taking of one’s testimony under oath. The attorney asks questions and the witness answers. A court reporter records the questions and answers for later use by the attorneys or the court. The deposition is usually held in the office of the attorney taking the deposition but, your own attorney will be present.

Most Important Rules of a Deposition:

TELL THE TRUTH. The worst thing that can happen in your case is to tell an untruth, even unintentionally. The other attorney will try to make you look like a liar or forgetful witness at your trial. You may be assured that the other attorney has investigated your past thoroughly and knows more about you than it appears by his questions. As your attorney, I want you to tell the truth, even if you think it might hurt your case. If there is some fact that you think might affect your case, be sure to tell me about it before your deposition begins. I cannot be responsible for the outcome of your case if you are not truthful.

BE BRIEF. Do not volunteer information and do not talk too much. Listen carefully to the question, think about your answer, and just answer truthfully the exact question and then stop talking. Wait for the next question. Do not elaborate unless your answer would be misleading without it. Do not teach the other attorney about your case, and do not talk about anything you were not asked. The less you talk, the less chance for a mistake.

Types Of Questions: Personal Background. At the start of the deposition the attorney will usually ask you general, easy questions about your education, family, addresses over the years, employment history, marriages or divorces and income. This gets you loosened up so that you begin to talk freely, or too much. He also hopes that you will forget the things your lawyer told you by the time the more crucial questions come up later in the deposition.

The Events. You will need to review the complaint that was filed on your behalf and any discovery responses that you may have been asked to provide. Be very familiar with the detail and timing of all events relative to our claims. For example, you must be able to identify all of the complaints you made, whether formally or informally, regarding any conduct that you believed was wrongful. You must be able to state when the conduct occurred, by whom it was perpetrated, to whom you complained, and what occurred in response to your complaint. As further example, you must be able to specifically identify all of the actions that were taken against you which altered the terms and/or conditions of your employment and/or any action which you found to be hostile or oppressive. In other words, know all of the claims and the basis for those claims which we have set forth in the complaint filed in this matter. If you do not have or cannot locate a copy of the complaint (or discovery responses) contact my office immediately to obtain one! Study these documents!

Injuries. You will be asked about all emotional suffering you have experienced as a result of the defendant’s conduct and how, if at all, the conduct may have impacted your life. More specifically, be prepared to list all aspects of your life that has been impacted. You will be asked to describe fully each problem and symptom, including how long each one lasted. List them now for yourself on paper to prepare for your deposition. You will also be asked to describe any activity or hobby that you had to give up for any period of time.

Loss of Income. You have been asked to keep a record of the dates and time you lost from your job, including those for time off for doctor or therapy appointments. Even if you have been paid by your employer, this information is still important. Other items that must be described in this context may be, for example, loss of benefits such as health insurance, vacation and sick leave, stock options, vehicle reimbursement, etc. Be sure your testimony regarding these items can be supported. Finally, you will be asked about former and current jobs and education or training so list this information out now.

Prior Medical History. You will be asked to relate past illnesses, injuries, operations or accidents, and the names of doctors or hospitals who treated or examined you in the past. It is vital that you be truthful in this regard.

Expenses. You will be asked to describe all expenses that you have incurred as a result of your injuries, such as loss of earnings, medical bills, legal bills, prescriptions, travel for medical treatment or job searches, etc. You should list these now.

Some Pointers:

Do not guess about any answer. If you do not remember or know exactly, just say so, if that is the truth. Defense attorneys always ask you to state dates, times, exact words that were spoken and the exact order of events. If you are positive about your response that is fine but, do not guess. If you do not know with exactitude the information they are requesting, try and estimate to the best of your ability but tell them that you are estimating.

Be courteous and attentive to the opposing attorney. Never become angry or frustrated and never lose your temper. If you lose control, you will probably make a mistake, and you will not make a good impression. If you make a poor witness, the defense attorney will note that, and they will take that into consideration in evaluating your case. You will have your own attorney there with you to object to any improper question.

Just answer the question. Do not volunteer information that is not specifically asked in the question. Take your time in responding and think about what exactly is being asked of you. Answer briefly, then stop talking. Even if there is information that you think is relevant and want the other attorney to know, do not offer the information. Give short answers that are true. The more information you offer, the more you can harm your case. Do not do the defense attorney’s job by giving him or her responses to questions they did not think to ask. On the other hand, do not let them trap you into the old “how often do you beat...” type of questions. This process takes a great deal of energy and listening on your part and, as you grow tired, you will probably forget things.

Do not argue. Let your attorney argue in the case for you. You just answer the questions. Defense attorneys are usually not loud or harsh with the witness at a deposition. They will be nice to you in the hopes that you will talk freely and be caught off guard. On the other hand, do not worry too much about being emotional. Crying is quit common during deposition and if you try and hold it back, it will have a very negative effect on your memory.

Do not get trapped by all inclusive questions. For example, if you are asked “is that every thing that happened” or “is there anything else,” you must respond “that is all I can think of at this moment” so that you will not be precluded from adding information you might have forgotten at a later date.

Do not be positive unless you are absolutely positive. If possible, keep your answers general. If you are not sure exactly, say “I do not know exactly.” If you do not know, do not guess.

Listen carefully and pay attention to the questions. If you do not understand a question, ask that it be repeated or restated. Wait until the attorney finishes his or question, pause so that your attorney can object if necessary, think about your answer, then answer. Do not interrupt the attorney. Do not talk when he or she is talking; the court reporter may become confused. If you tire, ask for a break. A break in the deposition can be taken at any time at your request but not while a question is still awaiting a response.

Speak out loud. Do not mumble or use “huh-uh” or “uh-uh.” Your answer may be improperly heard by the reporter.

It is alright to have talked to me. Do not be afraid to admit that you have talked to your attorney before the deposition. It is perfectly proper to do so. Do not reveal the specific content of any discussion with your attorney no matter when it occurred. If you want to talk to me during the deposition, wait for a break or, if absolutely necessary, ask for one. Do not let the defense attorney know that you need to talk to me about a particular line of questions or a response, this will give them a cue regarding what subject areas they need to focus on in their investigation or inquiry of you.

Do not joke in your deposition. There is nothing funny about a deposition. Remember, when the court reporter types your testimony, tone of voice or emotion will be lost. Only the plain words will be there on the page. Do not be sarcastic or facetious, If you do, everyone will laugh, except your lawyer.

Do not look at me for a cue to your response. You deposition may be video taped and you do not want to appear as if you do not know the answers without obtaining guidance from your attorney. This is your story, not your attorney’s.

Dress neatly and cleanly, like you would for business. Do not wear a lot of expensive jewelry. Neat and trim hair and clothes will all be judged. But, make sure that your clothes are comfortable. Remember, if you look and feel good, you will be more confident. Looking attractive and natural will also make a positive impression. Keep you body language open and keep direct eye contact with the person asking the question. Keep your tone of voice and affect open as well.

Read this several times and study it. Write down any questions you have. I thank you for your cooperation in following these instructions. If your deposition is successfully given, it will strengthen your case, make settlement easier, and if necessary the trial of your case will go smoother.


POST-DEPOSITION INSTRUCTIONS

Once your deposition has been completed in whole or in part, you will receive a transcript of everything that was said during the deposition process. Please carefully review the transcript and provide us with a list of any necessary changes by identifying the page and line number which needs amendment and what amendment you believe is necessary. Please do not write on the transcript itself or break the binding. Please also make sure that you are making changes to only your answers and not the questions that were asked.

You have a very short period of time within which to make any necessary changes. As such, it is very important that you do not procrastinate. Once you have completed your review, please mail: 1) the transcript; a floppy disk containing the list of changes; and a printed hard copy of your changes to my office via overnight mail so that I will have sufficient time to notify opposing counsel of those changes.

Of course, should you have any questions, contact our office.


INSTRUCTIONS FOR COMPLETING REQUESTS FOR PRODUCTION

In answering the enclosed set of Requests for Production of Documents, please provide one the following three responses on a separate sheet of paper:

  1. I am providing the documents to you;
  2. No documents ever existed;
  3. I know they exist, but
    I lost them, or
    Defendant has them, or
    Some third party has them, or
    I do not know who has them.

If you know that responsive documents are in the possession of a third party, e.g., a medical provider, or some other person, you need to identify the party's name, their address and phone number. If you do not know any or all of this information, state that as well.

Like all other discovery responses, please type all of your responses so that I can read them easily. If you type them on a computer, please save your responses on a disk (in Word or Word Perfect format) and e-mail your responses to me within the time frame specified in the cover letter that was provided to you along with the set of requests. Also, we ask that you telephone our office after you have sent your responses to ensure that we have received them.

It is very important that you understand, failure to return your responses to our office by the designated date will severely compromise your case to the extent that under local statute, we may well lose our ability to object to any and/or all of these requests. Finally, we have enclosed “verifications” forms along with the requests that were sent to you. You must sign these forms, verifying that your answers are true. Remember to return them to our office, along with a hard copy of your responses and all documents responsive to the set of requests.

If you have questions or do not understand a particular request, we are more than happy to offer you guidance. However, we have found that it is much more productive if you go through the entire set of discovery requests that have been sent to you and create a list of questions which are causing you problems. This way, we can answer all of your questions at the same time.

Remember, do not procrastinate. It generally takes quite a bit of time and work to respond to discovery and the more complete and concise your responses, the more you are helping to strengthen your case!


INSTRUCTIONS FOR COMPLETING REQUESTS FOR ADMISSION

Request for Admissions are designed to get you to admit certain statements of fact. For the remainder of this litigation, you will be held to any answer you provide in response to these Requests for Admission. Therefore, it is imperative that you read these requests very thoroughly and provide one of two responses: Admit or Deny. Realize that the design of this request is to get you to admit something that will ultimately benefit the defendant’s case. If the statement is essentially true, but worded in such a way that facts and/or circumstances have been taken out of context, deny it, and rewrite the statement so that it more accurately reflects the applicable facts and/or circumstances of your case. Further, if the statement is not true at all, tell me why in a brief, but concise manner.

Like all other discovery responses, please type all of your responses so that I can read them easily. If you type them on a computer, please save your responses on a disk (in Word or Word Perfect format) and e-mail your responses to me within the time frame specified in the cover letter that was provided to you along with the set of requests. Also, we ask that you telephone our office after you have sent your responses to ensure that we have received them.

It is very important that you understand, failure to return your responses to our office by the designated date will severely compromise your case to the extent that under local statute, we may well lose our ability to object to any and/or all of these requests. Finally, we have enclosed “verifications” forms along with the requests that were sent to you. You must sign these forms, verifying that your answers are true. Remember to return them to our office, along with a hard copy of your responses.

If you have questions or do not understand a particular request, we are more than happy to offer you guidance. However, we have found that it is much more productive if you go through the entire set of discovery requests that have been sent to you and create a list of questions which are causing you problems. This way, we can answer all of your questions at the same time.

Remember, do not procrastinate. It generally takes quite a bit of time and work to respond to discovery and the more complete and concise your responses, the more you are helping to strengthen your case!


INSTRUCTIONS FOR COMPLETING INTERROGATORIES

There are two types of Interrogatory question, the first is called “Special Interrogatories” and the second, is called “Form Interrogatories.” The term “Interrogatory” merely means “question.” Thus, these types of discovery requests allow the asking party to obtain a written summary from you outlining the factual basis of your claims.

Please thoroughly review all instructions prior to preparing a complete but brief typed response to each interrogatory. If the interrogatories are on a pre-printed form, you need only respond to the questions which are marked with an "x." It is also very important that you answer each sub-part of these interrogatories where applicable.

Whether you have received special or form interrogatories, you must focus on what the question is that is being asked and provide all facts within your knowledge which are applicable to that particular questions or its subpart. You must be brief, non-argumentative, and non-conclusionary. In the same vein, however, it is also equally important that you provide all necessary information. For example, if the name of an individual is being sought, provide the first and last name, their name, address, and telephone number if known. If these particular pieces of information are not known, it is also important that you so indicate. If there are questions that call for facts or information which you have already provided in a prior response, simply indicate the number of the interrogatory where the applicable information has been provided.

Like all other discovery responses, please type all of your responses so that I can read them easily. If you type them on a computer, please save your responses on a disk (in Word or Word Perfect format) and e-mail your responses to me within the time frame specified in the cover letter that was provided to you along with the set of requests. Also, we ask that you telephone our office after you have sent your responses to ensure that we have received them.

It is very important that you understand, failure to return your responses to our office by the designated date will severely compromise your case to the extent that under local statute, we may well lose our ability to object to any and/or all of these requests.

Finally, we have enclosed “verifications” forms along with the requests that were sent to you. You must sign these forms, verifying that your answers are true. Remember to return them to our office, along with a hard copy of your responses.

If you have questions or do not understand a particular request, we are more than happy to offer you guidance. However, we have found that it is much more productive if you go through the entire set of discovery requests that have been sent to you and create a list of questions which are causing you problems. This way, we can answer all of your questions at the same time.

Remember, do not procrastinate. It generally takes quite a bit of time and work to respond to discovery and the more complete and concise your responses, the more you are helping to strengthen your case!


DAMAGE CALCULATIONS

It is important that we have an accurate accounting of any losses which have resulted from the defendant’s actions. There are two general categories of damages applicable for most cases, economic and special. Special damages are those that are not associated with a tangible and identifiable monetary loss.

Economic damages are losses that are tangible and calculable. The most common source of economic damages is your loss of earnings. Damages for your loss of earnings not only include losses incurred as a result any period of unemployment you may have experienced, but also any losses which may have resulted from taking a lower paying position. In addition, losses incurred as a result of loosing or replacing benefits and having to look for alternate work are other sources of potential economic damages.

ECONOMIC DAMAGE CALCULATIONS FOR NON-WAGE CLAIMS

In calculating economic damages, please identify the following elements:

  1. a) identify the dates of any period of time in which you were unemployed; b) your total gross monthly salary at the time of your separation from defendant including bonus and/or commissions, if applicable; and c) a calculation showing the amount of loss for this period of time.
  2. a) identify the date you became reemployed; b) if the total gross salary, including any bonuses or commissions, is less than you were making with your former employer, identify the current amount of your total gross monthly salary including bonus and/or commissions, if applicable; and c) a calculation showing the amount of loss for this period of time.
  3. a) identify any and all benefits your were receiving from your former employer including, for example, life, health, dental, vision, retirement, car, expense account; b) identify the cost of replacing any of these benefits which you have incurred, e.g., the cost of COBRA; identify the value, if known, of any benefits you have not been able to replace; c) identify the amount of any medical costs you have incurred and, when doing this calculation, show the total amount of the cost and not just what any insurance may have paid on your behalf.
  4. a) identify any other forms of losses you are alleging to have suffered as a result of the defendant’s conduct including, for example, penalties for early withdraw of retirement or savings, higher interest rate as a result of refinancing or having to take a loan; mileage associated with your job search or medical appointments, postage associated with job searches, costs associated with having to relocate to find alternate employment; b) a calculation showing the amount of these costs and how they were incurred.

ECONOMIC DAMAGE CALCULATIONS FOR WAGE CLAIMS

For full-time employees, once you have worked 2 hours, you are entitled to a 15 minute break. After working for four hours, you are entitled to a 30 minute lunch break and, two hours after you have taken your lunch break, you are again entitled to take a 15 minute break. The law requires that during each of these break periods, you are free from having to perform any work related activities. This means that “working lunches” are not considered sufficient break periods under the law. However, you must distinguish from those times when you chose to work through your breaks without your employer’s knowledge of consent versus those times when your employer knew about or required you to work through your breaks.

Further, there are four arguable categories of overtime hours which may be applicable to your claims: those incurred between hours 8 and 12 of any given work day; those incurred after the 12th hour of work in any given work day; those incurred when your daily hours do not exceed 8, but your weekly hours exceed 40; and those incurred by working holidays.

In calculating economic damages for your overtime claims, please identify the following elements:

  1. a) identify each and every date you worked overtime starting with three years prior to the date we filed your civil law suit; b) identify how many hours of overtime you worked on each day that overtime was worked; c) identify how many, if any, of those overtime hours were a result of working 12 hours or more; d) if you did not work more than 8 hours each day, but worked more than 40 hours in a given week, identify how many, if any, of those overtime hours are reflected in your calculations; e) if any of your overtime hours were a result of working holidays, identify how many of those overtime hours are reflected in your calculations; f) identify your daily hourly rate applicable to each day overtime was worked; and g) do the calculations showing the amount of loss for this period of time.

  2. In calculating economic damages for your meal and rest period claims, please identify the following elements:
  3. a) identify each and every date you worked without being given meal or rest periods starting with three years prior to the date we filed your civil law suit; b) identify how many total hours you worked on each of these that a meal and/or rest period was not given; c) identify whether these breaks were for meal and/or rest periods; d) identify your daily hourly rate applicable to each day a meal and/or rest period was not provided; and e) do the calculations showing the amount of loss for this period of time.

SAMPLE OF TYPICAL DAMAGE CALCULATION WORKSHEET

 

Plaintiff estimates the amount of his/her economic losses, as of the date of this production totals: $221,345.  This Figure has been calculated and is comprised of the following components:

 

1.      Losses From Salary Reductions

a)      original hourly rate $38.39 – reduced hourly rate $32.18 = $8.71/hr + $2.50 for night differential = $11.21/hr x 864 hours lost = $9,685.44;

b)      original hourly rate $38.39 – second reduced hourly rate $27.55 = $10.95/hr + $2.50 for night differential = $13.45 x 540 hours lost = $7,263 +

c)      1.5 multiplier for overtime = rate for o/t $41.35/hr x 72 hours = $2,977 +

2.      Lost Salary and Benefits for Period of Unemployment (18 months):

a)      annual salary $76,546.08 /12mo = $6378.84 x 18/mo = $115,585 +

b)      lost salary $115,585 x standard multiplier used re benefits .3789 = $43,795 +

c)      average annual bonus $2,017.20 /12mo = $168.10/mo x 18/mo = $3,046 +

3.      Other Economic Losses

a)      tax liability due to early withdrawal of retirement fund = $500 +

b)      deductions from plaintiff’s pay $143.48 x 29/mo = $4161 + $1435 = $5,596 +

4.      Atty Fees and Costs

a)      Fees 93/hrs x standard hourly rate $450.00 = $41,850 +

b)      Costs $732.50 = $42,583.

 

IMPORTANT NOTES: This calculation does not include: interest, future losses, compensatory or punitive damages, or statutory penalties that may be imposed by the judge/jury at the time of trial or through post trial motions.

 

2(b) Benefits: You can also add up the amount of money you have paid to replace the lost benefits if it is more or you can arrive at this number by adding up the actual dollar amount spent by defendant towards your benefits each year but, if you do this remember, sick and vacation leaves are types of benefits.  If you have received medical/psychological care as a result of the defendant’s actions and any portion of that care was paid for by insurance or professional discount, the defendant is not entitled to the benefit of that discount.  When doing your calculations, use the amount charged before any reduction applied or amount waived.    


4(a) Hourly Clients: Do not use the discounted rate or discounted hours that have been provided to you as a courtesy by this or any other firm.  Use the standard hourly rate applicable at the time our agreement was signed.  Remove any discounted hours so that your calculations are a result of all hours worked on your behalf.  Multiply this number by the standard hourly rate (applicable to the person who performed each line item).


2(b) and 4(a) Explained Further: The law does not allow the defendant to obtain the benefit of any insurance you may have purchased or any reduction that you may have been provided by a professional service provider.  This is called the “Collateral Source Rule.”  So, if you have not requested or been provided with a copy of the non-discounted cost of services from any professional service provider whether it is a doctor, therapist, prior attorney or our firm, you need to request them now!  This is important because you may be required to reimburse these service providers for any discounts provided on your behalf while awaiting resolution of your case.