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Attorney Help Center: Draft Pleadings, Depositions & Legal Documents

How You Develop a Draft Pleading Will Affect the Outcome of Your Case

Our attorney ‘help center' is designed to be a resource for practitioners who may be seeking certain types of documents related to the prosecution and litigation of common types of plaintiffs' personal injury, medical malpractice, and nursing home negligence cases. While most of these documents are specific to Illinois, they could easily be adapted to the jurisdiction where you practice. We hope that you find these legal practice materials useful and effective in advocating on behalf of your clients.

Within each practice area, we have documents organized according to the various phases of the case including:

  • Initial case intake
  • Drafting complaints
  • Written discovery
  • Oral discovery
  • Trial motions and arguments

While these documents may provide a starting point for your case, we would urge you to double check that they are compliant with the applicable court rules. Further, we would urge you to customize many of the documents to the facts specific to your case to obtain the evidence that is most relevant to your case.

If you are an injured person and seeking information about your situation, you are likely better off looking at our various practice areas or searching our website for the topic applicable to your circumstance. If you have questions about the value of your case, we have compiled data on settlements and verdicts by case type here.

Developing a Compelling Draft Pleading and Motion

Every successful civil law litigator understands that a compelling draft pleading is a crucial component to their case. How the pleading is constructed based on proven strategies including how to format the document and timing the filing of the motion are effective tactics to obtain the desired outcome. Important considerations on how to structure the document include:

  • Know Your Audience – Before beginning your draft, understand who will listen to your argument if the case will be heard in state or federal court. If your claim is complicated, keep your pleading brief even if the trial judge is unfamiliar in handling cases like yours. Speak directly to the judge and outline relevant, substantial issues.

  • Make Your Pleading Brief – Assume that the trial judge has a tight, busy schedule filled with countless lawsuits that require reading piles of motions and pleadings. Instead of rambling on, patient pleadings are legal authority with the goal of getting the judge to rule in your client's favor and nothing more. Be persuasive by avoiding legal writing. That said, ensure your document has quality content that has been edited to promote a persuasive decision of your pleading.

  • Use Proven Pleading and Motion Strategies – Learn the strengths and weaknesses of your judge and how they handle motions and pleadings. Frame the problem persuasively but succinctly and provide all the valuable information the judge will need to rule in your client's favor. Your pleading might be used as an effective tool to educate the court about your clients claim that may need to be resolved before the case is heard in trial. If necessary, frame the problem early on when any delay in filing your document could cause other problems to arise.

Developing Effective Deposition Strategies

You, the defendants, and witnesses could play a crucial role in successfully resolving the victim's case. How you prepare your clients (the plaintiffs) for their depositions is crucial to support your side. Any misstep at this stage could lead to a dismissal on summary judgment or a rule cross-examination in front of the jury when the defense team shows you have a lack of evidence. Any holes in your deposition of the witnesses or defendant could create an unexpected outcome at trial.

You must properly prepare your client so he or she can tell their side completely in a compelling story that does not reveal any shortcomings or weaknesses that might exist in their lawsuit. Be aware that the defendant's attorneys will pressure the plaintiff in their search for facts using probative tactics. What your client says during their deposition could make the defense reevaluate their strategies or make them realize that they are not likely to prevail on the merits of their case.

Alternatively, you must depose the defendants to understand their side of the story and fill in the holes in their case with missing information. The testimony you obtained during a deposition could be crucial during cross-examination at trial. Remember that you only have one bite at the apple, and if your client gave incomplete or incorrect answers, the judge might not allow you to correct their statement or provide supplemental corrections through an affidavit.

Preparation Is Crucial

Nothing is more important than preparation to obtain the testimony you need in a deposition. However, depositions usually occur during the case's discovery phase so preparing to depose the witness may be difficult because you do not have a complete understanding of the case yet. To overcome some of these hurdles, you can insist that the defense produce full documentation before the depositions occur, so you can analyze of all the discovery product to be fully prepared.

If you become aware during the deposition that the defense did not produce some of the documents, it is crucial that you keep the deposition open. Inform opposing counsel that you maintain your client maintains the right to reopen the deposition once the information has been produced. Ways to prepare to depose a witness include:

Understand state or federal (Fed R. Civ. Pro. 30, 32) rules of jurisdiction based on where the deposition is being taken.

Review all documents and pleadings in the case that have been produced by the plaintiff and defendants.

Outline a marked complaint (that sets out the legal reasons and facts) to prepare for any opposed area, so you are prepared to provide missing information.

Evaluate all interrogatory answers provided by opposing counsel and be prepared to ask relevant questions that fill in the holes.

Review the legal standards required in your case and make a plan on how to obtain the information you need from every witness.

Write out a detailed outline that will serve as a reminder during the deposition based on anticipating the witness' answers. Your preparation in understanding how they will answer will allow you to probe deeper if what they say does not match others' testimonies, the deponent's interviews, or the documents the defendant has provided.

Organization is crucial to the success of your deposition. Gather all pertinent documents that have been copied so they cannot be presented to others at the deposition including the court reporter. This copy will be marked as an exhibit for later reference. Taking the time to prepare your questions and how the witnesses will answer your questions can maximize the outcome of the deposition to ensure your side of the case is supported.

In federal court, you will be limited to the number of parties in the case that can be deposed (usually it is ten depositions). You will need to consider whether your client will need the testimony of witnesses through a deposition or if their statements will be heard for the first time in court. In most federal cases, the defendants can only depose the plaintiff.

Ready to Take a Deposition?

You are required by law to give proper notice. If you are going to videotape the deposition, it is necessary to provide notice to the court. Additionally, you will need to schedule and establish a court reporter and confirm the day the deposition will be taken based on the schedules of the court reporter, the defense team, and any non-party witness to be deposed.

During the deposition, examination, cross-examination, and objections of the deponent will happen as if at trial. While deposing the witness, make sure to ask unambiguous questions. If you use unfamiliar words, spell them out for the court reporter to ensure they are entered into the record correctly.

If a valid objection is raised by the opposing counsel, do not be argumentative. Recognize that if the defendant's attorney objects to the question during the deposition, it will likely face the same problem at trial. Instead, rephrase your question for now and ask the opposing counsel when you were off the record what their concerns are in phrasing the question the way you did.

If the witness gives a nonresponsive answer, moved to strike and then ask your question again. However, if you receive previously unknown testimony from the witness, ask additional follow-up questions that probe more deeply into unknown territory unless you are not sure where it will take you.

Remember, you do not have to stick to the outline if the deponent's answers are taking you somewhere else. You can always review the outline later and return to questions that have yet to be covered to ensure you have not missed anything. Be prepared that the witness may unexpectedly contradict the testimony that was given during interviews or interrogatories. Be armed and ready with pertinent paperwork to challenge their testimony including using the testimony of others in the case.

The success of your deposition will likely be based on the logical flow of how you asked questions. Try to avoid asking the test questions at the start of the deposition and instead build a solid rapport between you and the witness by asking for answers in a way that they would agree with your questions.

Time Constraints

Remember that the court system places a time constraint on how long the deposition can go (federal court restricts depositions to seven hours), so use your time effectively and wisely. Likely, the judge will not grant you additional time unless you have made a compelling argument for more time frequently throughout the recorded deposition. Be sure that your request for additional time is on record because of some uncontrollable factor like a defendant providing rambling, time-consuming, or nonresponsive answers.

What You Need to Obtain through Deposing

Both the plaintiff and the defendants will use the testimony provided during a deposition in the same way that includes:

  • To lock in a witness' testimony to ensure they answer correctly at trial.

  • To discover evidence that was previously unknown by the opposing side.

  • To limit the evidence provided in court by reminding a witness, whom is eager to provide additional testimony, that they said during the deposition they told the attorney everything.

  • To use the testimony obtained at the deposition during cross-examination to impeach the witness.

  • To evaluate the character of the witness, show their credibility, and direct the jury's acceptance of the witness.

  • To highlight the weakness of the defendant's strategy for winning the case.

  • To preserve testimony that is crucial to the outcome of the case if the witness will be unavailable due to an illness or other factor where they cannot participate at trial.

  • To read deposition testimony to the jurors if the witness is unavailable, assuming you have given the court proper notice.

  • Present a videotape of the deposition to the jury, assuming you have given the court proper notice.

Finally, it is important that every witness provides all the detailed information they have before the deposition is over. Ask specific questions that identify that they have answered the question fully, so there will be no surprises at trial. If the witness makes any gesture at all, be sure that you have a verbal description of what the witness did, so the gesture is on record. Before releasing the witness from testimony, ask if they have remembered anything else even if they do not think it is pertinent to the case. Never end your part of the deposition without stating on the record “I have no further questions at this time.”

If the witness states that they do not remember anything while providing testimony during the deposition, push them to commit whether what they are saying means the situation might have happened, but they do not remember, or it did not happen based on their recollection. Question the witness if there are any other ways that they could refresh their recollection as to what happened or whom they might ask if they wanted to remember.

In the end, you will need to preserve the record to avoid confusion during a motion practice or at trial. If you need the document marked by the court reporter, ask for it on record by describing the paperwork, what it is, what exhibit is, how long it is, and its date.

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Jonathan did a great job helping my family navigate through a lengthy lawsuit involving my grandmother's death in a nursing home. Through every step of the case, Jonathan kept my family informed of the progression of the case. Although our case eventually settled at a mediation, I really was impressed at how well prepared Jonathan was to take the case to trial. Lisa