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The best lawyers in New York must always have an agenda when questioning witnesses during pretrial testimony. Find out why.

In an accident case or a medical malpractice case or even a wrongful death case here in New York, I find that the best attorneys are ones who are fully prepared and have a clear agenda of what they want to accomplish.

Those same attorneys tend to be very experienced trial lawyers who have a key goal when they go into a pretrial question and answer session.

For example, in a car accident case, we will have an opportunity to question the driver of the other car you believe was careless and negligent. Some lawyers simply use this question and answer session, known as a deposition, as a fact-finding mission. They use this opportunity to discover what the other driver did.

Although that is useful, I find that the best attorneys are ones who have a clear-cut strategy and have a goal in mind when questioning this witness.

Let me give you an example...

Let's say we believe that the other driver was speeding. We also believe that this careless driver was texting. We believe that this driver has a history of driving poorly.

Finding out the facts and details from this witness's perspective is only one element of what's needed.

Instead, my goal is to establish that this driver was speeding.

My goal is to establish that this driver was texting.

My goal is to get this driver to admit that if he did certain things, that his conduct violated the basic rules of the road and was careless.

That would be my basic agenda.

Then, I have different tactics that I can use in order to achieve my strategic goals.

A series of questions addressing how fast he was going critical...

Mr. Jones, you recognize that there are speed limits for every road, correct?

The reason for speed limits is to promote safety for both motorists and pedestrians, correct?

You would agree that a driver must always obey the posted speed limit, correct?

A driver who violates the speed limit, violates the rules of the road, correct?

These questions are leading up to getting the driver to acknowledge and recognize that there are rules of the road. It also gets them to admit that he must follow those rules of the road. I also get him to admit, in his own words, that if someone violates those rules of the road, they could result in significant consequences including injury and death.

I get the witness to express, in his own words, that these are safety rules designed for the benefit of the public.

Once I have established from the witness what the rules of the road were, the importance of these rules and what can happen if someone violates those rules, then it's time to get into details. Then I can get into the fact-finding segment of this question-and-answer session, which by the way, is given under oath and is considered pretrial testimony.

Did you know that I can use sworn pretrial testimony years later at trial?

It's true.

Once I've established what the facts were from this driver's perspective, now I can ask him hypothetical questions.

Remember, I have a goal in mind here.

I want the witness to accept and acknowledge that if certain things were not done, that would be a violation of the rules of the road. I want him to acknowledge and recognize that if certain things were done that would be considered careless or negligent.

Let me give you another example...

"Mr. Jones, I want you to assume that the speed limit on the Long Island Expressway between exit 33 and 34 is 55 mph. You would agree that a driver who exceeds that speed limit would be violating the rules of the road, correct?

You would agree that a driver who was traveling at 70 mph on the Long Island Expressway between exit 33 and 34 would be violating safety rules.

You would also agree that a driver traveling at 70 mph during this stretch of road has less time to stop when there is a car in front of him than if you were traveling at 55 mph, correct?

You would also agree that a driver who was distracted and traveling at 70 mph would have less time to stop if there was traffic in front of him, correct?

You'd agree that someone who is texting while driving is a distracted driver, correct?"

The whole purpose of these series of questions and more like them is to complete my agenda.

In more than 26 years of practice here in New York in car accident cases, medical malpractice cases and wrongful death cases, I have found that the best lawyers in New York are ones who have a clear-cut agenda during pretrial testimony. Those same lawyers are often the most successful in being able to establish carelessness and liability during the pretrial litigation phase of a case.

Those same attorneys tend to come out with a much stronger bargaining position when trying to settle a case after depositions are held.

The young novice attorney who simply goes into these question-and-answer sessions believing that this is simply a discovery process designed to learn what the other side was thinking, is losing a great opportunity to not only establish wrongdoing, but to use this testimony as leverage during settlement negotiations and at trial.

To learn more about questioning a doctor during his pretrial testmony in a medical malpractice case in NY, I invite you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer