2. TABLE OF CONTENTS
I. Ethical Considerations
a. Defining the Tripartite Relationship
b. Applicable Rules of Professional Conduct
c. Minimizing Litigation Costs
d. HIPAA and Other Privacy Issues
II. How to Take a Plaintiff’s Deposition
a. Determining Your Goal
b. Organizing the Deposition
c. Sample Plaintiff Interview
4. Defining The Tripartite Relationship
The tripartite relationship is
generally defined as the litigation
triangle formed by the client, the
client’s insurer and the attorney.
client Make no mistake the client is the
most important cog in the tripartite
relationship. Both the insurer and
attorney must take the utmost
care to fulfill their obligations to
the client.
Part of the attorney’s role will be to
oversee and protect the client’s
interest with regard to the insurer.
Attorney Insurer
5. Rules of Professional Conduct as They Apply to
Personal Injury Practice and the Tripartite
Relationship
6. Rule 1.1 Competence
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for
the representation.
7. Rule 1.2 Scope of Representation
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult with
the client as to the means by which they are to be pursued. A lawyer may take such action
on behalf of the client as is impliedly authorized to carry out the representation. A lawyer
shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or
activities.
(c) A lawyer may limit the scope and objectives of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of
any proposed course of conduct with a client and may counsel or assist a client to make a
good faith effort to determine the validity, scope, meaning or application of the law.
8. Rule 1.2 Comment 6
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by
agreement with the client or by the terms under which the lawyer's
services are made available to the client. When a lawyer has been
retained by an insurer to represent an insured, for
example, the representation may be limited to matters related
to the insurance coverage. A limited representation may be
appropriate because the client has limited objectives for the
representation. In addition, the terms upon which representation is
undertaken may exclude specific means that might otherwise be used
to accomplish the client's objectives. Such limitations may exclude
actions that the client thinks are too costly or that the lawyer regards
as repugnant, unethical, or imprudent.
9. Rule 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed
consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows
that the client expects assistance not permitted by the Rules of Professional Conduct or other law or
assistance limited under Rule 1.2(c).
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.
10. Rule 1.4 Comment 1
[1] Reasonable communication between
the lawyer and the client is
necessary for the client effectively to
participate in the representation.
11. Rule 1.4 Comment 2
[2] If these Rules require that a particular decision about the
representation be made by the client, paragraph (a)(1) requires
that the lawyer promptly consult with and secure the client's
consent prior to taking action unless prior discussions with the
client have resolved what action the client wants the lawyer to
take. For example, a lawyer who receives from opposing
counsel an offer of settlement in a civil controversy or a
proffered plea bargain in a criminal case must promptly
inform the client of its substance unless the client has
previously indicated that the proposal will be acceptable or
unacceptable or has authorized the lawyer to accept or to reject
the offer. See Rule 1.2(a).
12. Rule 1.7 Conflict of Interest
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the
lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
13. Rule 3.1 Meritorious Claims
A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is
a basis in law and fact for doing so that is not
frivolous, which includes a good faith argument for
an extension, modification or reversal of existing law.
A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that
could result in incarceration, may nevertheless so
defend the proceeding as to require that every
element of the case be established.
14. Reconciliation
• How do we reconcile the Rules of
Professional Conduct with the Tripartite
Relationship?
• Can we represent both and still be in
compliance with the Rules of
Professional Conduct?
• What if there is a conflict between the
client and his/her insurer?
15. Case Law
The Indiana Supreme Court in
Cincinnati Insurance Company v.
Wills, 717 N.E.2d 515 (1999), held:
“There are plainly many situations where representation of both
an insured and the insurer is inconsistent with the Rules of
Professional Conduct. However, the issue in this case is whether
these potential conflicts are so inherent in the representation
that it is a violation of the Rules of Professional Conduct to
enter into the arrangement in the first place. We think not.”
16. Case Law
“Whether the attorney is an employee or an outside lawyer, the debate
focuses on whether only the insured or both the insured and the
insurer should be viewed as the client. We think it unrealistic to ignore
the client relationship with both. Joint representation may become
problematic, particularly if issues of disclosure of confidences arise. For
example the attorney may gain information from the policyholder-client
that may affect the insurer-client's coverage obligation. But that is no
basis for prohibiting the arrangement in all cases. Whatever issues joint
representation raises appear to be wholly independent of the attorney's
status as an employee of the insurer or a member of a law firm.
Second, there is nothing inherently wrong in common representation of
two parties where their interests are aligned.” Cincinnati at 161.
17. Case Law
“If a conflict arises, it will have to be handled, and there are a variety
of means to do that. But a vast number of claims have been and
presumably will be handled with no significant issue between the
insurer and the policyholder. Interests of economy and simplicity
dictate that this be permitted to continue. Any abuses can be handled
on a case-by-case basis rather than by adoption of the broad
prohibition the Wills seek. Although issues may arise in dual
representation, none are apparent in this case. In any event, Celina
has by contract subordinated its interests as a client to those of Suter.
Presumably, this resolves by agreement the priority of counsel's
obligations if, for example, counsel learns of information that affects
the insurer's and the policyholder's interests differently.” Cincinnati at
161.
18. Potential Problems
• Non-cooperation of the client—do you tell the carrier the client
has been unresponsive?
• Possibility of excess exposure—make sure the client knows
(s)he may be subject to an excess exposure and has the right to
hire independent counsel.
• Reporting to the client—see Rule of Professional Conduct
1.4, comment 2.
• Who decides how much to spend in defense of the case? What
if you think you need an expert but the insurer doesn’t want to
incur the costs?
20. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
21. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
• Early mediation
22. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
• Early mediation
• Refrain from issuing non-party discovery
23. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
• Early mediation
• Refrain from issuing non-party discovery
• Don’t order deposition transcripts (beware of angry court reporters)
24. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
• Early mediation
• Refrain from issuing non-party discovery
• Don’t order deposition transcripts
• Suggest a medical records review by a nurse or chiropractor (as
opposed to a medical doctor) when possible
25. Ideas on How to Keep Costs Down
• Open dialogue with opposing counsel early—find out what (s)he needs
to put the case in a position to settle, you might not be that far apart
on your evaluations
• Early mediation
• Refrain from issuing non-party discovery
• Don’t order deposition transcripts
• Suggest a medical records review by a nurse or chiropractor (as
opposed to a medical doctor) when possible
• Prepare your litigation budget carefully and be sure to include some
latitude for unexpected expenses
27. Current HIPAA Rule
SEC. 1177 (a) OFFENSE—Person knowingly in violation of this part--
(1) uses or causes to be used a unique health identifier;
(2) obtains individually identifiable health information relating to an individual; or
(3) discloses individually identifiable health information to another person,
shall be punished as provided in subsection (b).
(b) PENALTIES.--A person described in subsection (a) shall--
(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;
(2) if the offense is committed under false pretenses, be fined not more than
$100,000, imprisoned not more than 5 years, or both; and
(3) if the offense is committed with intent to sell, transfer, or use individually
identifiable health information for commercial advantage, personal gain, or
malicious harm, be fined not more than $250,000, imprisoned not more than 10
years, or both.
28. How to Avoid HIPAA Violations
•Do not include Social Security numbers in any documents.
•Use HIPAA compliant language in the non-party requests.
•Be careful to whom you disseminate medical records.
•Even providing records to your client’s insurer can be
considered a violation of HIPAA.
31. What are the Strengths?
• What are the strengths and weaknesses
of your case?
32. What are the Strengths?
• What are the strengths and weaknesses
of your case?
• Are you strong on liability?
33. What are the Strengths?
• What are the strengths and weaknesses
of your case?
• Are you strong on liability?
• Are you strong on damages?
34. What are the Strengths?
• What are the Strengths and
Weaknesses of your case?
• Are you strong on liability?
• Are you strong on damages?
• Are you strong on both?
35. What are the Strengths?
Use this as a guide to determine your
goal during the deposition.
36. What are the Strengths?
Use this is a guide to determine your
goal during the deposition.
If you are strong on liability spend the
majority of your time asking questions
about how or why an accident occurred.
37. What are the Strengths?
If you are strong on damages spend the
majority of your time discussing prior
injuries and/or causation.
Don’t spend a lot of time talking about
liability if your client was drunk and
crossed over the centerline (allegedly).
39. Start at the End
A great way to frame your questions for
deposition is to prepare jury instructions
first.
If you know what you will be required
to show at trial to receive a certain
instruction, you can frame your
questions accordingly.
40. Start at the End
You might also want to develop your theme of the case prior to
deposition. Think about what you want to be able to argue in
closing arguments and tailor your questions to get the
responses that will be most effective. Chances are you have a
pretty good road map from discovery responses.
If your theme is going to be that plaintiff’s inattention led to an
accident, focus on getting him/her to tell you all the other
things that were going on immediately before or during the
accident.
• Was the radio on, were you eating or drinking, do you
smoke, were you having a conversation with a passenger?
41. Don’t Be Predictable!
• I like to vary the sequence of questions based on the facts and
the witness.
• If you are reading from an outline, chances are opposing
counsel has the same or a similar outline. How are you going to
surprise someone that way?
• Don’t read the outline while the answer is being given. All too
often I see young and/or inexperienced attorneys looking for
their next question and not listening to the answers.
• It keeps the witness back on his/her heels and does not allow
them to be thinking a few questions ahead.
• If every question is a follow up to the question before it people
will catch on.
42. Mediation or Trial?
• I will approach a deposition differently if I think the case has a
chance to settle at mediation.
43. Mediation or Trial?
• I will approach a deposition differently if I think the case has a
chance to settle at mediation.
• If I believe we can mediate successfully I won’t hold anything back at the
plaintiff’s deposition. I’ll give my opponent all the ammunition I have to
push the settlement value of the case down.
44. Mediation or Trial?
• I will approach a deposition differently if I think the case has a
chance to settle at mediation.
• If I believe we can mediate successfully I won’t hold anything back at the
plaintiff’s deposition. I’ll give my opponent all the ammunition I have to
push down the settlement value of the case.
• Springing the smoking gun (provided you have a smoking gun) on them at
mediation gives opposing counsel no time to explain to his client how this
impacts settlement value.
45. Mediation or Trial?
• I will approach a deposition differently if I think the case has a
chance to settle at mediation.
• If I believe we can mediate successfully I won’t hold anything back at the
plaintiff’s deposition. I’ll give my opponent all the ammunition I have to
push down the settlement value of the case.
• Springing the smoking gun (provided you have a smoking gun) on them at
mediation gives opposing counsel no time to explain to his client how this
impacts settlement value.
• Bringing this out in the deposition also gives you an idea how the plaintiff
will react to surprising information should you be forced to try the case.
46. Mediation or Trial?
• If you know the case is going to trial, hold some of the really
good stuff back.
47. Mediation or Trial?
• If you know the case is going to trial, hold some of the really
good stuff back.
• If you know about a prior conviction that will be admissible, let them deny
they have been convicted during the deposition, but don’t let them know
you have evidence that will bury them at trial.
48. Mediation or Trial?
• If you know the case is going to trial, hold some of the really
good stuff back.
• If you know about a prior conviction that will be admissible, let them deny
they have been convicted during the deposition, but don’t let them know
you have evidence that will bury them at trial.
• If they have denied any prior back or neck problems, and you have records
that show a pre-existing condition, let it go at the deposition and save it for
trial where it will have the most impact.
49. Mediation or Trial?
• If you know the case is going to trial, hold some of the really
good stuff back.
• If you know about a prior conviction that will be admissible, let them deny
they have been convicted during the deposition, but don’t let them know
you have evidence that will bury them at trial.
• If they have denied any prior back or neck problems, and you have records
that show a pre-existing condition, let it go at the deposition and save it for
trial where it will have the most impact.
• This can be risky so make sure you have thought the process through
completely—like making sure you can get the evidence in at trial. If it is
inadmissible you waste any chance of it having an impact.
50. Often Overlooked Information
• Ask about clubs or churches to which he/she belongs.
• Ask about community involvement.
• Ask about their last vacation. This often times disputes claims
of being unable to sit or stand for long periods of time.
• Make sure to get all the names of doctors and medical providers
so that additional non-party requests can be sent after the
deposition.
• Pin down dates of when injuries resolved.
• Ask about gaps in treatment.
• Ask how they found their treating physician. Often times you
will see a plaintiff from the south side driving to a doctor or
chiropractor an hour from home because of an attorney referral.
51. Prepare, Prepare, Prepare!
• The best tool you have just may be an aggressive paralegal. If
the case warrants it send out all the non-parties you can to
obtain all the medical and work history possible.
• If plaintiff’s counsel objects to the scope of your non-party
requests (includes mental health or substance abuse
records), chances are you are on the right track.
• Consult with co-defendant’s counsel to see what information
they received.
• Pull motor vehicle records.
• Do a google search.
• Look on Facebook and My Space pages.
• Make sure you have a medical chronology.
53. How Did You Find Your Doctor?
9 Q Mr. [Plaintiff’s Attorney], is he the one who told you about
10 Dr. Mandel?
11 A Yes.
12 Q What did he tell you about Dr. Mandel?
13 A That's where we would be having our treatment done
14 by.
15 Q And that was okay with you?
16 A Yes.
17 Q You didn't have any other doctors in mind or
18 anything like that?
19 A No.
54. How Did You Find Your Doctor?
9 Q Mr. [Plaintiff’s Attorney], is he the one who told you about
10 Dr. Mandel?
11 A Yes.
12 Q What did he tell you about Dr. Mandel?
13 A That's where we would be having our treatment done
14 by.
15 Q And that was okay with you?
16 A Yes.
17 Q You didn't have any other doctors in mind or
18 anything like that?
19 A No.