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Deposing Nursing Home Employees and
Owners in Neglect and Abuse CasesQuestioning Deponents, Using Demonstrative Exhibits, Raising and Defending
Objections, Dealing With Difficult Deponents
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TUESDAY, APRIL 9, 2019
Presenting a live 90-minute webinar with interactive Q&A
Daisy Ayllon, Attorney, Levin & Perconti, Chicago
Michael F. Bonamarte, IV, Partner, Levin & Perconti, Chicago
Steven M. Levin, Founder and Senior Partner, Levin & Perconti, Chicago
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Deposing Nursing Home Employees and Owners
in Neglect & Abuse Cases
By: Steven Levin, Michael Bonamarte, and Daisy AyllonApril 2019
The Purpose of a Deposition
• The main purpose of a discovery deposition is NOT discovery.
• Prove your case
• Develop a roadmap for your adverse examination
• Anticipate, Embrace and Undermine Defenses
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Establishing the Rule
• The Nursing Home “Model” • Applies to every case
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The Nursing Home “Model”Attorney: Michael F. Bonamarte
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The Nursing Home “Model”Attorney: Michael F. Bonamarte
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Establishing the Rule
• In nursing home cases, the rule is the standard of care
• Policies, Procedures, Customs, Common Practices and Regulations.
• Establish the Importance of Following the Rule
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Establishing the Rule
• They are required by law to follow the rule
• Consequences of breaking the rule
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Gaining Admissions of Rule Violations
• Admissions of Standard of Care Violations
• Admissions of Policy and Procedure violations
• Admissions of Violations of Custom and Practice
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Gaining Admissions of Rule Violations
Attorney: Steve
Levin
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Gaining Admissions of Rule Violations
Attorney: Susan Novosad
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Gaining Admissions of Proximate Cause
Attorney: Michael F. Bonamarte
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Gaining Admissions of Proximate Cause
Attorney: Cari F. Silverman
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Pain and Suffering Damage Testimony
Attorney: Margaret Battersby Black
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Pain and Suffering Damage Testimony
• The Defense Argues….
• No Documentation = No Pain
• Turn that Defense AGAINST them from the Get-Go
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Rules of the Road for Pain Documentation
• Establish Rules Regarding the Frequency and Documentation of Pain Assessments
• Pressure Sore Assessments
• Pain Evaluations
• Monitor effects of Pain Medication
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Disability and Disfigurement Damage Testimony
• Defense might argue the resident was Not in any pain
• Disabled due to negligence
• Could not feel loved ones
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Pain & Suffering Testimony
Attorney: Margaret Battersby Black
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Locking in the Witness
• Lock in the Witness to Prevent Future Creativity
• You can’t risk asking questions you don’t know the answer to at trial
• Don’t be satisfied with just one admission.
• Don’t quit while you’re ahead.
• Get admissions of violations of the Rule as MANY times as possible
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Locking in the Witness
Attorney: Michael F. Bonamarte
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Attorney: Steven M. Levin
Locking in the Witness
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Unprepared Witnesses
Attorney: Margaret Battersby Black
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During the Deposition
• Block claims or defenses by anticipating them
• Make it difficult for the defendants’ experts to testify credibly
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Discredit their Experts
• Admissions from unprepared direct care workers make it harder for the defense to obtain an expert
• Create a situation where the defense expert can be confronted and discredited with employee testimony that is inconsistent with the expert’s opinions
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Attorney: Steven M. Levin
Discredit Their Expert
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Preparation
• Know your Goals
• Know the Case
• Know the Witness
• Know the Rules
• Know the Damages
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Preparation
• Don’t write out your questions
• Anticipate their defenses
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Deposition Techniques
• Learn what the witness reviewed
• Logical thinking
• Open mindedness
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Do’s and Don’ts
• DO NOT: Fight/argue with the witness
• DO NOT: Be afraid of any answer
• DO NOT: Pounce too soon
• DO: Create a trap for the witness he/she can’t escape
• DO: Create a bond with the witness
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Deposition Techniques
• Brainwashing
• Ask the doctor nursing questions and vice versa
• Theory testing
• Neutralizing common witness tactics
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Polarizing the IssuesAttorney: Margaret Battersby Black
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Polarizing the IssuesAttorney: Margaret Battersby Black
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Dealing With Opposing Counsel
• Speaking objections
• Coaching
• Taking advantage of young lawyers
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Icing on the CakeAttorney: Michael F. Bonamarte
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Attorney: Cari F. Silverman
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Attorney: Jordan S. Powell
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Attorney: Steven M. Levin
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Attorney: Steven M. Levin
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Icing on the CakeAttorney: Michael F. Bonamarte
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Attorney: Cari F. Silverman
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Attorney: Cari F. Silverman
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Attorney: Cari F. Silverman
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Icing on the CakeAttorney: Michael F. Bonamarte
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Icing on the CakeAttorney: Steve Levin
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Thank you!
Steve M. Levin
Steven M. Levin
Michael F. Bonamarte
Daisy Ayllon
www.levinperconti.com
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