THE DEP NOT TAKEN

Twice in my  career, I have appeared for the de bene esse trial deposition of one of my client's treaters, and, after talking to the doctor, did not take the dep.  Fortunately for me, in both cases, the defense attorney did not try to go forward with the deposition notwithstanding my cancellation.

The most memorable of those occasions was probably 20+ years ago, before the "Open and Obvious" eliminated a lot of premises liability cases.  I have no problems telling the story now.  The case did resolve prior to trial, for a very, very modest figure.  As to the client, I would not disclose his name, even if I could recall it.  And, though this may be in questionable taste, I believe he probably passed away many years ago.  He was in his 80s at the time of this story.

This Wayne County case involved a slip and fall at a car service shop.  The claim was that the client fell on an accumulation of oil on the floor of the work area of the business.  

His claimed injury was a nerve injury to his wrist.  Surgery had been recommended but had not occurred to date.

So far, not bad.  

He was not an uncharming fellow at his deposition, by and large.  However, alarm bells went off in the background when he claimed for the first time that he had nerve injury to both wrists as a result of the accident.  This happened, he said, because after he first fell onto his right side, he bounced about 3 feet in the air and then fell on to his left side.  Not helpful, but people often do not recall the mechanics of a sudden fall with complete accuracy.

The defense did not like my client's case too much and the case did not resolve through case evaluation or at the settlement conference.  No facilitation back then.  My client and his wife lived in the City of Gross Pointe, about 3 blocks outside the Detroit border.  They had taken a bus to court the day of the conference.  Being the nice guy that I was, I mean am, I told them I'd drive them home after the hearing.  My own alarm bells started going off when we reached the intersection of Congress and Shelby.  The light was red for us, and my client's wife and I stopped for the light and for traffic.  My client, however continued walking blithely on, and only my arm physically restraining him stopped him from walking into traffic.  He was completely unaware of what he had almost done.

As we got closer to the scheduled trial date, I actually called the courtroom of a judge I knew, to see if I could come in with my client prior to trial so he could practice walking from counsel table to the witness stand without mishap or losing his way.  Sadly, I am not making this up.

More conventional trial preparation requires getting the testimony of the client's treaters, which most lawyers know is done by de bene esse dep at the time, place and at the price quoted by the doctor.  You don't object to any conditions imposed by the doc, lest you piss off your client's star damage witness.

One of those docs in this case was the neurologist who treated my client.  Arriving at the dep site, I asked to speak to the doctor before the deposition began.  During that conversation, the doctor not only declined to relate my client's neurological conditions to the accident, but indicated that my client was a "loon" who had told him that in 5 states there were groups wanting the client to run for president.  I asked if any of those comments had made their way into his records.  No, he replied, but he would make no attempt to exclude references to those comments in his testimony.  Thanks, doc.  

Genius though I am, there was no way to make chicken salad out of that.   No causation and an unhinged client/patient.  I walked into the waiting room and advised counsel, video tech and court reporter that the dep would not go forward.  I remember I didn't even make up some excuse, like the doc got called away for an emergency surgery and we would reschedule.  The doc did cash the dep check.

First thing I did when I got back to the office was schedule a meeting with the client.  As with all meetings with this man, his wife attended.  I met them at our downtown branch office.  I did not pick them up or drive them home.

I told them about what the doctor had said, particularly about the groups in 5 states wanting him to run for president.  My client was shocked.  I can't believe he'd say that.  So, there aren't groups in several states wanting you to run for president? I asked.  Oh, there are, he said, but I never told the doctor that.  He then added, that in 2 other states he was known as "James Bond, 007".  

I looked at the client's wife, expecting to see a sad, long-suffering smile.  Nope.  She looked at me, and said "It's true".

Thereafter, I did try to talk realities about the case to an audience that might not recognize  the concept.  Ultimately, I did get permission from him to settle for the best deal I could get.  I did, and thus avoided a longer and, I daresay, a more interesting entry for my memoirs.  Modesty, or rather  pride prevents me from giving the settlement figure, which oddly, I still remember.

What is odd is that I had gone through the entire dep (excepting the bouncing 3 feet bit) and he seemed fine--well, sort of.