00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Hey, everyone, it's Jack Zinda. This week we're going to be talking about discovery in catastrophic cases. And as always, I have with me my partner, Joe Caputo, one of our top litigators in the firm, Neil Solomon, and one of our all stars, Chrissy Hagan. Hey, guys. 00:36 Speaker 2 Hey, guys. 00:37 Speaker 1 Hope all's well. Hey, Jack. Hope everyone's surviving the apocalypse and doing well today. We're coming at you January 27th. So we're still in COVID lockdown, but I hope everyone's holding up okay. Yeah, you too. 00:54 Speaker 2 I'm getting used to this just not seeing anybody business, but looking forward to hopefully mingling sometime soon. 01:02 Speaker 1 Well, today we're going to talk about discovery and how you can come up with a discovery plan in a catastrophic or complicated case. I see too often many firms and many attorneys just go with the cookie cutter approach, which I think can be both cost you at the end of the case when you get to trial, then also early on in the case when you're not getting the evidence you need. So I thought we'd just start off by talking about what is your general process for coming up with the discovery plan in a case. Joe, how about you? 01:37 Speaker 2 Yeah, I think you mentioned and hit it early on. The most important thing is prior to litigation, thinking through what you want your discovery plan to be and utilizing some of the forms that you may have for generic discovery, but not limiting yourself to what's contained in there. So I always start with the elements that I need to prove and what information I need or desire that I may not have at the time of litigation to make sure I can meet my burden. And then I try to develop a discovery plan from there, whether it's a written discovery plan, depositions that I want to take, and in what order. And then you have to factor in the cost and the time of all of those as well, and make sure that you could have a great plan to take 100 depositions. 02:35 Speaker 2 But if it's a $50,000 case, that's probably not the best plan. And, and so kind of thinking through how you're going to meet your elements, survive that motion for summary judgment, how you can utilize your forms, but think outside of the box and do it in a way that isn't going to cost you too much for the case. 02:55 Speaker 1 Well, you know, one thing that I think is important is to zoom out and think about what's my objective through the discovery process. And I think of the objectives you're trying to accomplish with discovery, R1, obviously to prove your case. So to do that you have to know what your elements of your case are going to be. Number two, I think through discovery you're trying to figure out how can I defeat the defendant's case. And I think those two things are really important to keep in mind when you're coming up with what evidence do you need? Neil, what's generally your process when you're thinking about discovery at the beginning? Part of a case? 03:33 Speaker 3 Yeah, so I think everything that you guys said is part of it as well. But I think another thing that I like to take a look at is what experts are going to be needed in that discovery process or that we've already hired on. And I think it's really important to get them involved early on in the discovery process. They can help craft whatever discovery you may need. And so we're kind of talking about it in this large 10,000 foot view of all these different types of cases. But I think it really boils down to what type of case is this, what experts do you have, and how they can help you craft whatever discovery you need and what needs to take place. But really going through that route. 04:11 Speaker 1 Well, you know, one thing I like to think about is what is our theory of the case. And so to me it's what do I want the facts to be in the case that's going to lead to a successful outcome at trial? And then building on that, what evidence would help me establish that theory of the case? And I try to make a list of that evidence as we're coming up with the discovery that we need to go out there and try to get. And I think that can be helpful. Chrissy, do you have any techniques you've used to kind of think through what's theory of the case or coming up with a discovery plan and some of the cases you've worked on? 04:48 Speaker 4 Yeah, I think that's a good point. So, for example, in a dog bite case, I think about what would be ideal evidence that we'd be able to get. So of course, statements from other witnesses to prior attacks or statements from neighbors or people who know this dog owner or have been around the dog and have been bitten in the past. So I'd make that as a note on my discovery plan. Find witnesses who have knowledge of prior viciousness of the dog. And then I have that constantly on my radar when I'm thinking of who I want to Try to go speak with or who I might want to depose if we get good information on that front. And then also just being really direct in terms of written discovery. 05:30 Speaker 4 So kind of like Joe said, in a lot of states, you're limited on how many discovery requests you can propound. So in Colorado, for example, where I practice. So you really can't go with the cookie cutter questions anyways. Not that you'd want to, but, for example, you only have 30 interrogatories, so you have to be really careful with what questions you decide you want to propound to the other side. 05:54 Speaker 1 Yeah, I completely agree. I think one of the biggest mistakes that I see, I don't know if you guys is seeing just throwing out questions that don't apply to that particular case. I've seen attorneys that will use questions that are clearly designed for a car wreck in a premises liability case. And one, it just wastes one of your discovery requests. But then, number two, you're really sending a message to the other side. You don't know what you're doing. And I think too often we get into this mindset that more is better and when a lot of times, having a more tailored approach can help. One tip that I found really helpful is I will actually write out my theory of the case. So I've got a list of the actual things that I'm trying to prove. So I put pen to paper on that. 06:45 Speaker 1 Joe, what are your thoughts on trying to tailor your discovery versus just throwing a big net out there? 06:52 Speaker 2 Yeah, I use. We have a couple of generic forms that we like to build off of in every case to kind of get us started thinking about the case. But what I like to do is print out kind of that generic form that I typically would have in most cases, think through the issues, cross things out, get my team together, and create a separate list of documents we want and questions that we want to ask. And then after we've done that, come set up a meeting. We have different ideas and different ways of getting it right. You may be able to find out information through an admission request instead of an interrogatory. And, you know, in Texas, those admission requests, lot less objectionable than an interrogatory. So you may get a straight answer. 07:44 Speaker 2 And so I think not limiting yourself to only, you know, one or two ideas and thoughts, and then also thinking outside of the box is your best way to come up with a good written discovery plan. 07:58 Speaker 3 Yeah, I think doing all of that, and then on top of it, you don't have to get every Bit of discovery out at the very beginning. You're going to learn so much more. I found get into a deposition earlier rather than later in the case so you can find out what they call their document, where it's being held. How easy is it to access it, get all that stuff written down so that when you go request it, you can be extremely particular with whatever you're trying to go get. And so creating that new list of documents after each deposition really helps you target what you're going for. Because when you're. You are casting a net, even if it is a small one at the beginning of the case, because you're just looking for anything. 08:35 Speaker 3 But I think really targeting as you move along is what's most important. 08:39 Speaker 1 No? 08:40 Speaker 2 And to Neil's point, you know, Christina and I had a case that were working on last year where, you know, were really thinking critically about when we wanted to ask for certain documents. It was a DUI case where our client was struck by a drunk driver and they were arrested. And we knew where the defendant had been drinking prior to the crash. And we could have subpoenaed all of the itemized receipts early on in the case. But what we thought made the most sense, considering what we knew was, let's pin her down, the defendant, to her story about what she had to drink, when she had it, how much she had, without being able to have access, we thought, to an itemized receipt that we'd have to turn over early on if we got it through discovery. 09:35 Speaker 2 And so we committed her to that answer in deposition and interrogatories. And then we did the most fun work, which is we sent a spoliation letter to the bar a long time ago. We knew that they were going to comply with the subpoena as soon as we sent it. We send it away A couple weeks later, voila, we get the smoking gun, which is a completely different order. More drinks than she told us she had and a completely different time frame. And meanwhile, in the deposition, we pinned her down on the fact that those drinks don't belong to anybody but her. And so we all of a sudden had this itemized receipt. 10:17 Speaker 2 Her dishonesty, which was way better for the case than that same information and a more plausible explanation that the defendant could have given if she would have had that in front of her. Giving a deposition or an interrogatory response. 10:34 Speaker 1 Yeah, that is a great tip. You've got to think about the order at which you're going to do the discovery. To me. I think there's Three phases of discovery. First is your written discovery, then there's depositions, oral discovery, then it's the compel issues, because they are never going to give you the evidence to make your case without dragging out of them kicking and screaming. So I think that decision to go after that evidence later really set that case up well, because it showed the dishonesty of the defendant opposed to getting that first. So that's a great tip. Christy, do you have any cases where the order which you discovery made a difference like Joe laid out? 11:14 Speaker 4 I'm sure I do. It mostly makes a difference when I'm thinking about how I want to take depositions, what order I want to take those in. So if it's a case where you have multiple defendants, just really thinking about being strategic with who you depose first, whether, you know, if it's a trucking case, if you want to take the corporate rep, depot first versus the driver, I think it really all depends on the case, but I can't think of a specific example. 11:37 Speaker 1 When would you? Well, maybe like in the trucking context, I really think that's an interesting idea of going corporate rep first. I know that's something we've been doing in some cases. What are your thoughts on that? Kind of the pros and cons of going, you know, fact witness first versus corporate rep first and for those that don't know, maybe kind of explain what a corporate representative deposition is? 12:00 Speaker 4 Yeah, so a corporate representative is someone who's speaking on behalf of a company. So when we have trucking companies, we. We typically would send a letter to opposing counsel laying out all the topics that we want to ask someone about to get them to commit that the person they're putting up for deposition is the person who has knowledge on all of those topics and can speak for the company. And then, you know, a lot of times it's going to be questions about training, policies and procedures, the incident investigation. And so it can be helpful to commit the company to everything that they say they train their drivers on, for example, and then later when you're having the driver's deposition, see how that might contradict what the corporate representative is saying. 12:50 Speaker 4 If the driver says, no, I've never seen that policy, or I wasn't told this, you can definitely create that conflict between defendants and the credibility issues are going to be there. 13:01 Speaker 1 Yeah, I think that's a great point. Neil, what are your thoughts on the order of discovery and kind of whether you go written discovery first, deposition right away, or corporate rep. Do you have any thoughts on that? 13:11 Speaker 3 Yeah, so kind of like I mentioned before, I think getting some written discovery out is really important. Mining through what you have there so you have something to base it off of. Maybe getting a deposition of somebody. I don't think I generally start with the corporate representative in most instances, but it really is a case by case basis if there's witnesses or whether it be a driver of a company of the actual vehicle. But get that information, then go back to the well to do the more written discovery while setting up whatever additional depositions needed. So like you said, it's definitely case dependent. What information we have, what information they gave, what we're trying to get. 13:47 Speaker 3 But as long as I think the most important thing is keeping it moving along so you get all the information you need in a timely manner so you can keep and try to hold those trial dates that are out there. 13:57 Speaker 1 Yeah. I think it's also to think about what are your different discovery instruments you can use besides just written discovery to the opposing party. You know, you have depositions on written questions that can go to third parties that can be really useful to set that up. And a lot of times I look at our job in discoveries just to lock the defense into their version of the case for potentially impeachment purposes later. You know, because I don't know about you guys, but just about every case I see, I could ask them, you know, please state your client's name. I'm going to get six pages of objections citing case law going back to the 1700s. And they may just tell me their first name. So how do you guys deal with that? And I think it's now standard protocol at defense lawyer training school. 14:42 Speaker 1 I mean, Neil, maybe you could tell us what that was like when you were a defense lawyer with that school dealt with. But it was short. 14:47 Speaker 2 It was a short school. Class was let out early. Most days. 14:54 Speaker 1 You have to object to everything and cannot even admit to the most basic of things. So how do you guys deal with that? 15:01 Speaker 2 It's tough. 15:03 Speaker 3 Yeah, it is. I just immediately challenge them to a fist fight. That's my. See what I can do there. No, honestly, I take the opposite approach. I do lay out what the problem is and try to say, hey, here are issues. I'm available for a call at whatever date and time. And generally speaking, I'm able to keep a pretty collegial arrangement with the opposing counsel in the case and let them know what you're trying to get and come to any accommodations that you feel may be reasonable before going to the court. I just try to come in with the cleanest hands possible when I do have to compel something so that when we're in front of the judge and I'm starting out, I go, well, here are the issues, here's what I'm trying to get. 15:48 Speaker 3 Here's, you know, we've already talked to counsel, I've even limited this far and here's now what I really need and here's why. Right. And so I just think trying to come in as the person that's being as reasonable as possible when showing up to court is extremely important. 16:04 Speaker 2 Yeah, I think you make a good point. You know, as plaintiffs attorneys, it's not a great use of our time in most instances to sit at the courthouse for half of a day to get called up for a discovery dispute and then get some documents maybe three weeks later if we win. And so yeah, I try to only have discovery disputes, especially before depositions on absolutely crucial pieces of information. And then if I need something after depositions, I'll suspend the deposition and make sure I get it. Especially if I've CYA myself in the form of a letter, an email, something like that. But that's why at least as a general rule for me, the bigger the entity on the other side, the more often I'm taking that corporate representative first. 17:00 Speaker 2 With the mom and pop shops in trucking cases or cases with a commercial defendant, I think we're getting a lot of what we need to in written discovery and quite frankly there isn't a lot of information to find out. And we've all been through it, right. These big companies, good luck figuring out what they store, where they store it, where it's located, what their policies are on keeping it or destroying it, who all was involved in the decision making process. And so in those types of cases. 17:32 Speaker 2 And so instead of dealing with the six page objections, let's create a list, let's put it on a 30B6 or a corporate rep depot notice and let's find out where this stuff is, who knows So I can create a better discovery plan moving forward and not hit my head against the wall 20 times trying to figure it out over the course of multiple depositions. 17:55 Speaker 1 Yeah, and I think one of the mistakes that I see a lot of attorneys make is to misunderstand how a discovery dispute helps the defense. I mean they're getting paid by the hour, so they're going to welcome a hearing before the court where they can sit and bill for half a day, whereas we're contingency fee and we need to get to that evidence the most effective and efficient way possible. So you don't want to play their game of spending and wasting time. 18:28 Speaker 5 Zynda Law Group is a plaintiffs personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up a time to discuss your case. 19:09 Speaker 1 The other thing that I think is really important is to put down in writing exactly what it is you want and get that over to them in the form of a letter if necessary. So you're saying I actually want to this specific information, I requested it with this specific discovery instrument and I'm entitled to it because of this. And then see what you can get an agreement on when they're sending that back over. Christy, I know you've had to deal with a lot of knuckleheads on the other side who object to everything. How do you like to handle it? 19:40 Speaker 4 Yeah, the same way. Exactly what you were mentioning. You know, in Colorado there's discovery dispute hearings, so courts actually did away with motions to compel for the most part. A lot of them will allow you to file some type of brief going through the issue very concisely in two pages or less. So at least the defense in that situation doesn't get to bill to draft a 10 page motion to compel. You really hold them to their burden of saying exactly why they're not providing this and why they think it's irrelevant or whatever the objection is. And then a lot of times I've had success. 20:19 Speaker 4 You know, once you get to the hearing, the judge is going to be inclined to allow you access to that information you're seeking if you can show that you've been extremely reasonable through discovery as well, and essentially providing everything that they've asked for in a timely manner. And then like you said, having a CYA letter of all the times you've attempted to confer, all the letters you've drafted saying why it's relevant information that we're seeking and it's reasonable for them to disclose. And then the judge by that time is going to just be tired with the games that they're trying to play and most likely make them compel the information. 20:58 Speaker 1 Yeah, you got to go in there with clean hands. I mean, judges by their nature are not going to be happy you're in. 21:04 Speaker 3 There with the discovery dispute. 21:05 Speaker 1 So you want to make sure it was worth it if you're actually going to attend a hearing on that. Well, do you guys have any examples where the defense was clearly hiding evidence or when you think they may hiding evidence and how you get them to convey that information? 21:24 Speaker 2 One, don't look at your requests for production responses from defendants right before you're preparing for a deposition. Right. Never assume that you just somehow were gifted all of the documents that should have been produced. And so I can think of a case that Christina and I are working on right now against the big trucking company where were desperate to find out the hiring standards that this company had and they refused to produce any. And this is a company that has a policy for how to tie your shoes. So I knew that there was a policy for what the hiring standards were and what were disqualifications. And so we had to compel them to produce it. And we eventually got it. They sent us what looked like an archaic document and we had some questions about it because why wouldn't they turn this over? 22:22 Speaker 2 It doesn't seem to be too damning. And so we set up a corporate representative deposition and one of the topics was the hiring standards that they had produced. And what do you know, two hours before that deposition started, were produced with the actual current hiring standards of this trucking company, which not only were completely different than the ones that they sent us previously that they hadn't used for a decade, but the new standards actually disqualified the defendant that we sued, whereas the old standard that they set us didn't. And so it was a very helpful document. But that was an instance where kind of persistence paid off and questioning and thinking critically through the issues allowed us to be in a much better position as to the negligent hiring claim. 23:19 Speaker 1 I remember one time I had a case, it was a rompel death case, and it involved a bar, a dram shop case, and we needed to know who the server was that served the defendant driver the alcohol. And the bar was being cute. And they said, we have no way of knowing that information. We have a lot of workers at the time. We have no way of being able to tell you that. And so we noticed every employee at the bar's deposition over a two day period. And said, okay, we'll just take everyone's deposition. And lo and behold, they were to figure out who the server was. In about a day. They said, oh, yeah, it was this person were able to ask and figure it out. 24:01 Speaker 1 So sometimes you've got to take a very aggressive approach, and sometimes you can figure it out with the phone call. And I try to really size up my opponent early on in the case. Is this going to be someone who is going to be a scorched earth approach? I know Neil and I worked on a wrongful death case involving a busing company where the defense was definitely taking a scorched earth approach on every discovery issue down to. They said none of their records were digitized. They had to go to a warehouse 600 miles away to pull anything out and wanted us to pay hourly for them to do it. Or somebody who is genuinely trying to abide by the code of ethics and follow the rules and do things the right way. 24:43 Speaker 3 Yeah, in a lot of instances, like I said, kind of reaching across. And if you have that relationship with opposing counsel coming up and saying, this is the person I'm looking for, I can go, just like you said, I can go take six depositions of every single person, or you can point me to the person that's going to be able to talk about X, y, and Z. And that can help shortchange any issue you may have early on. So I totally agree with that stance. 25:07 Speaker 4 I can think of an example where evidence was hidden in a premises case that we had where we had been in litigation for almost a year. And went back and did a second inspection and ended up talking to one of the tenants that lived at the residence. And in talking to them informally at an inspection, turned out they had actually lived there before the incident and through the time of the incident, and they were never disclosed. Someone who very clearly would have relevant information about the defective condition that were in litigation over. And then I remember it was kind of funny when we noticed that person's deposition the other side through a fit. You know, they were like, who is this person? He hasn't been disclosed. Where did you get his information? 25:51 Speaker 4 And were like, well, coincidentally, he's the person residing at your client's house. That was kind of fun. 26:00 Speaker 3 Yeah, I did have one recently, a case where a trucking company, same thing. There was a witness statement from an independent witness that I tracked down, and we get all the way to mediation and then kind of by chance talking to a client, able to find out that there was a statement that was taken by that person. And so then we go look and we find out that it was actually sent to the opposing party's adjuster. So we knew for a fact that they had it and had not turned it over. And so just watching this mediator browbeat the other side about the fact that they're hiding this evidence. 26:39 Speaker 3 And we'd already taken some depositions, we're going to go retake all these depositions and kind of using that information to increase the value of our case because there were some issues with ours was extremely satisfying, to say the least. 26:54 Speaker 1 I. It's always better to catch them in a lie than to actually get the evidence. I mean, that they always make it 10 times worse by hiding it and you catching them. And that's another clever trick is if they, if you know they have it in their possession and they did not produce it, you have no obligation to produce it for them. You can then use it in a deposition if you need to, if they. If, you know they haven't. Like that witness that they obviously knew was a tenant, you know, and one game that I see some lawyers play on the defense is intentionally not ask their client the question as detailed enough to actually get the answer and kind of pretend like, you know, well, they didn't tell us, so we don't know it. 27:37 Speaker 1 And so that's something else I would be on the lookout for is, you know, is the attorney actually getting the information from the client in as detailed a manner as possible? What are some of the other mistakes you see plaintiffs lawyers making when it comes to handling discovery personally? 27:53 Speaker 2 And this really reverts back to the start of the case. But it is so imperative that you send a spoliation letter that is well thought out and lists documents that you want preserved and that it is sent to the correct entities, people or persons at the correct address. Because what you want later, by the time you get into litigation, you're fighting written discovery motions, you're going to motions to quash your subpoenas, There is a lot of time that can elapse. And if you haven't created the burden for somebody, you know, beyond federal rules, if they exist in your particular case, to preserve documentation, you're going to give them a free pass to have lost, destroyed, or misplaced that crucial documentation. 28:50 Speaker 2 And so I would think, kind of like you sending written discovery, I would think that same way in creating and sending a spoliation letter in all of your cases. 29:01 Speaker 3 Yeah, I mean, back as y' all mentioned earlier when I was back on the dark side. I think one of the things that was most surprising was a number of attorneys that just a lack of follow through. They would send the written discovery, never look at it again, and never ask about why this objection was lodged or what was there, what other documents may be there that you know was being held under the protection of an objection or privilege. And so just having that follow up to go find out what's there and continue to dig, I think it's probably one of the biggest mistakes. 29:31 Speaker 4 I think it's helpful to know the statements, any statements in the case, inside and out. So be mindful of how many different statements the defendant could have given either to what's in the insurance claim file, what he's told to the officers, what statement he filled out in his incident report with his company, and just know those inside and out when you get to the deposition so that you can attack him on all the different versions that likely are going to exist. 29:57 Speaker 1 Yeah, that's a great point. Well guys, these have been really awesome tips, at least for me, and really useful. I hope you all have found it beneficial. If you have any other questions, feel free to reach out to us. You know, whether it's on a particular case or a discovery tactic or how a court may handle something where we're always happy to take questions from our listeners and hope you found this useful. Thanks guys for taking some time out to talk to us today. 30:23 Speaker 3 Thanks everybody. Thank you. See ya. 30:30 Speaker 1 Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. To get notified about new episodes that are upcoming or have been released, go to zdfirm.com/podcast to sign up for our mailing list.