Hodge-Podge Points for Giving Deposition

To finish out what I started several weeks ago about depositions, I want to end this blog series with a few hodge-podge, miscellaneous points that you may not have been advised.

 

 

Understand the purpose of deposition. A deposition is a series of questions asked by opposing counsel which you must answer. It is not a conversation. It is an opportunity for opposing counsel to uncover evidence for his/her purpose, not an opportunity for you to tell your story.

 

Understand the importance of deposition. It’s never “just a deposition.” Testimony given at deposition has the same legal force as testimony given at trial. A case can easily be won or lost because of what occurs at deposition.

 

Answer concisely. Don’t allow yourself to ramble or wander off on tangents. Answer the question as accurately and briefly as you can. Restrict yourself to one or two sentences at most.

 

 

Don't Budge from the Truth. Your truth is your truth no matter how opposing counsel tries to paint it.

 

Correct misinformation. “Based on what Dr. Jones told you, I take it you decided to go ahead with the surgery?” “I decided to go ahead with the surgery, but not based on what Dr. Jones told me.” 

 

Pause for possible objections. The pause not only gives you time to think, but also gives your attorney time to object, should your attorney wish to.

 

Be wary of the “yes” set. Opposing counsel wants to get you to agree to their version of the facts. When you find yourself agreeing with opposing counsel – as sometimes you must (“The earth is round, isn’t it?”), listen extra carefully to the next questions. The more times you say “yes” the more likely it is you’ll say “yes” when you shouldn’t.

 

Tricky Deposition Questions

The following are a list of "Tricky Questions" often used in depositions. It would behoove you to pay attention to these tricks before your next deposition.

The question is asked out of sequence. “Did you use the most recent standards?” When? At the time of the incident, 5 years previous, or last month? Ask what year or date the  attorney is asking about before answering. Don’t assume you know.

The question misquotes you. “You said earlier you were stopped for a minute, weren’t you?” “No, I said I was stopped for about one to three minutes.”

 

The question implies an answer. “You didn’t actually see the man clearly, did you?” implies you didn’t see him clearly. If you did, say so “I saw the man very clearly.

 

The question is outside your knowledge. “To the best of your knowledge, did maintenance do regular safety checks?” It may be tempting to assume that they did, but if you don’t know that for a fact, then it’s “I don’t know.”

The question implies what you should know. “As the accountant, didn’t you know what was posted?” Stick to the facts, regardless of what a mythical accountant should know. “No, I did not.”

 

The document question. “Isn’t it true that you signed the May 3rd agreement?” “May I see the document please?” Always review whatever document is being referred to before answering, even if you think you know what it is.

 

Personal questions. “Didn’t you have an abortion/DUI/felony charge last year?” Litigation makes your life transparent, but some information is irrelevant. If your attorney doesn’t object to the question, then calmly, neutrally, answer truthfully. Your attorney can have the question and answer excluded later.

Scolding questions. “Couldn’t you have provided better warnings?” You’re not a child. Stay calm. “I believe we provided good warnings.”

Vague questions. “Were you there long?” “It was short, wasn’t it?” ‘Long,’ ‘short,’ ‘a little,’ ‘a lot’ and the like are all open to subjective interpretation. Stick with the facts. “I was there about an hour.” “It was about 6 inches.”

The nonexistent question. “Of course the accounts are kept in the safe.” This isn’t a question, it’s a statement. “I’m sorry, what is the question please?”

Silence. You’ve given your response, yet opposing counsel just stares at you, silent. Don’t figure you must have forgotten to say something. Silence is a tactic to get you to talk

more. Don't budge!

 

 

If you have some other tricky questions you can add to the list, please make comments below or send me your ideas to perkins@perkinsfirm.com. I hope your next depositions goes really well.

Don't Be Afraid of the Media: Have a Plan

The following is guest blog from Andy Sievers of  Safety Services, LLC*

Every Safety Director that I know lives in dread of a school bus accident.  The thought of one of their trucks getting tangled-up with a school bus is a nightmare, regardless of which driver is “at fault.”  Every employee of your company, from the C.E.O to each of your drivers, is a compassionate human being.  No one wants to see a child hurt.  Worrying about a school bus accident can make you, a dedicated and professional Safety Director, an unhealthy insomniac. In order to get some sleep (after reviewing your truck driver hiring practices), you should develop your own company’s media plan. 

You say that you’re too small of a company to have a fancy “media plan”? Hopefully, you will never need such a media plan.  But, if a noteworthy crash happens on your watch, you (as the Safety Director) will likely get pushed into the media spotlight.  Being prepared and being empathic might determine if you retain your job after a noteworthy accident.

 

A media plan doesn’t  have to be complicated or outsourced to a high-priced media consultant.  Simplicity is the key for you to remember your plan and then to implement it.  A media plan has one purpose with five distinct components.

 

Purpose:  The purpose of your media plan is to professionally identify your company as a safe and committed group of people.  The media must tell a compelling story very quickly. All media--television, radio, newspaper and internet news--works off of the same newspaper article structure:  Who, What, When, Where and How.

 

 The 5 component of your plan:   Regardless of the media outlet (television, radio, newspaper, internet), all media works under the standard news structure of Who, What, When, Where, and How of the story. Therefore, you can prepare your media plan to provide information on each of these five components:

 

Who #1 -- Talk with your C.E.O. and all Department managers about your plan.  Make certain that they all know the identity of your media representative.  Typically, the C.E.O. or the Safety Director is the natural choice for this important responsibility.  Make certain the other company employees know that they should NOT interact with the media and that they should direct the media to you. 

 

Who #2--When first talking to the media, identify your company without giving the name of your involved driver.  Your driver should be protected, at least initially.  Have information on company’s history and safety record ready to impart. 

 

What --Provide ready the basic details of the facts of the loss without inflammatory language.  Know the type of accident it was (i.e. rear-end, overturn, t-bone) and exactly how many vehicles were involved.  Do NOT speculate on the number of people injured or killed.  

Arguments to Make if CSA (Comprehensive Safety Analysis) Data is Attempted to Prove Liabilty

IN a recent presentation to the Federal Motor Carrier Safety Administration, the American Trucking Association submitted several  concerns about the Comprehensive Safety Analysis (CSA), which has been in effect since 2010 to improve the efficiency and effectiveness of the FMCSA's compliance program.

We all know that scoring of Behavioral Analysis Safety Improvement Categories (BASICS) include:

1. Unsafe Driving
2. Fatigued Driving
3. Driver Fitness
4. Controlled Dangerous Substances
5. Vehicle Maintenance
6. Cargo Related Issues, and
7. Crash Indicators

Based on these scores, it is assumed that the FMCSA can determine the likelihood of future accidents. I have a problem with this assumption. It is a well established rule of evidence that past conduct should NOT be used to prove present liability. In my mind this is kind of like allowing  "character evidence" to prove that person has a propensity to commit a wrong. No matter what I think, this is the law and we have to deal with it.

In October of 2012, the ATA listed the following as concerns about the application of CSA that must be used to argue against the CSA scores being used against a driver or his employer:

• Carriers’ scores in three of CSA’s seven measurement categories (43 percent of the system) do not effectively identify future crash risk.

• FMCSA only has sufficient violation data to assign a percentile rank (in at least one category) to 12 percent of active carriers.

• And as a recent analysis by the American Transportation Research Institute highlighted: perceived safety risk is heavily dependent on the amount of data available on each motor carrier and it is wrong to conclude that carriers with insufficient data to be scored are safer than those that have reported data.

The ATA has a brief "white paper" submitted by Rob Abbot, Vice President for Safety Policy, to the FMCSA requesting a  more balanced perspective. Obviously, you can request the paper from the ATA, but I have it on file in case you are unable to get a timely response from the ATA. These are good arguments against use of CSA scores in a liability.

 

Send me an e-mail to perkins@perkinsfirm.com and I will send you a copy.  Some of the balanced information suggested by the ATA include:

FMCSA statement: Past crash involvement, regardless of fault, is a strong predictor of future crash involvement.

 

A more balanced perspective suggested by the ATA:

FMCSA carefully uses the term “involvement” in this context. This does not mean these carriers are more likely to be at fault in a future crash, but rather that they operate in an environment (e.g., urban setting), where there is elevated exposure and they are more likely to be involved in a future crash. Increased crash involvement is often a function of exposure, not necessarily a reflection of safety problems. For instance, urban carriers are more likely to be involved in crashes than rural carriers – but not because they are any less “safe.”

FMCSA’s own safety rating process acknowledges this fact and applies a higher acceptable

threshold for crash rates to carriers operating in urban environments.

 

In other words, instead of using "statistical data"  to prove liability or a propensity to liability, let's just take each case independently. Isn't this what  we were taught in law school? What are your thoughts? Please make some comments here.

 

Top Ten Concerns of Trucking Industry

 At an American Trucking Association’s meeting in Las Vegas last year, the American Transportation Research Institute (ATRI) released its 2012 top ten issues in the trucking industry, displaying ongoing issues while debuting new concerns.  Below are the top ten issues identified by over 4,000 trucking industry stakeholders participating in ATRI’s survey:

1. CSA  (Compresive Safety Analysis): See next weeks's blog (1/10/2013) on this issue in www.truckingalong-markperkins.blogspot.com)

 

 

2. Hours of Service

 

3. Economy

 

4. Driver Shortage was predicted a few years back. Did the transportation industry and trucking companies leaders put their head in the sand? More on this topic to come.

 

 

5. Fuel Issues/Prices: Perhaps education of drivers to achieve better MPG, education of dispatchers to dispatch with MPG in mind, and a bonus or pay program that shows a driver can make the same or more money by slowing down.

 

6. EOBR (Electronic On Board Recorders): Is cost the only legitimate reason for a company or driver not to use a EOBR?  The "big brother" argument is not valid because with traffic cams, fuel receipts, and the other numerous ways a driver can be tracked if needed. EOBR can make the playing field more fair by forcing companies that are running illegal, hauling cheap freight or running illegal logs.

 

 

 7. Driver retention: Do companies want a cheap and quick fix for their retention problems instead of making changes in pay, home time, dispatchers education, equipment, and health benefits? Some would argue that company leaders know how to keep drivers but don't want to make those changes. We will talk more about this in future blogs.

 

 

8. Truck Parking: Do federal and state governments   care about the transportation industry or drivers by closing rest areas and failing to support more truck stops?  Do Shippers and Receivers have care about drivers safety and well being by refusing to let drivers take breaks in their lots when drive time has ran out?

 

 

9. Driver health/wellness:  One truck driver  recently complained that a large trucking company built a  gym for their over the road drivers, but assumed that drivers would not realize that this was only  capital investment with tax deductions. As over the road drivers,  how often they would they be at the home terminal to use the gym?   How about paying for gym membership instead?

 

10. Congestion and Highway Infrastructure

 

 

I will try to address each of these issues in the weeks to come. If you have any thoughts or comments on any of them, please leave a comment here. As always, if there is anything I can do for you in north Louisiana or northeast Texas, please don't hesitate to call.