Divide and conquer: forcing defendants and their experts to challenge one another's testimony in deposition can unravel the defense at trial.

Defendants pitted against one another--it's a plaintiff's dream. The likelihood of winning at trial increases significantly when defendants and their experts criticize each other. And they will--if you force them to do so in depositions.

Typically, defendants develop evidence against the plaintiff, but you can make it literally impossible for a defendant or defense expert to refuse to admit in deposition that a codefendant made a mistake. This is true for any cause of action. Often, after one defendant criticizes another, the sense that someone is "going down" will increase a witness's willingness to tell you where the blame really lies.

The rules

Every person in our society relies on others to follow rules. For example, we rely on other drivers to obey traffic laws, on professionals to follow the appropriate standards of their professions, and on businesses to adhere to standards of truthfulness and honesty in their commercial dealings.

In lawsuits involving multiple defendants, each one failed to follow the rules, leading to the plaintiff's injury. But each defendant injured the plaintiff by violating a different rule--the rule that should have guided that defendant in that particular circumstance. The rule that was violated was often relied on not only by the plaintiff; but also by the other defendants.

When codefendants rely on each other to follow the rules, they can be counted on to testify against each other when those rules are broken. Under such circumstances, if a witness does not criticize a codefendant's failure to comply with a rule, he or she implicitly acquiesces in the violation, and in doing so assumes responsibility for it. And defendants don't want responsibility for the consequences of such a violation.

To elicit criticism of codefendants in deposition, focus on the rules that were broken. First, seek admissions that acknowledge general propositions about the rule. For example, when deposing a codefendant, ask about a rule another defendant was responsible for:

* Does the rule exist?

* Do you agree with the rule?

* Is the rule important?

* Since the rule is important, should it be followed?

Then ask the codefendant questions more specific to the case:

* Did you have a right to rely on the rule in this case?

* Did yon rely on the rule?

* Did the defendant responsible for adhering to the rule follow it? (You know the answer: No.)

* Should the rule have been followed in this case?

* If the rule had been followed, would the outcome have been different?

After the witness criticizes a codefendant for failing to follow a rule (or simply criticizes the violation, which can be just as helpful), follow up by asking "competence" questions. These allow the witness to establish the basic tenets of the violated rule.

When the witness shows in-depth knowledge of the general rule, and then applies it specifically to the case, the criticism of the codefendant gains credibility. All the while, intersperse the examination with questions that help the witness shift responsibility to the codefendants whose conduct the witness relied on.

A case in point

The principles and the techniques for obtaining codefendant criticisms are the same for any cause of action. Only the rules and responsibilities governing--and the factors affecting--the codefendants' conduct will change. Consider this example, using facts from a hypothetical medical malpractice case.

After an automobile collision, John Doe is transferred by ambulance to a nearby hospital. The admitting physician, a surgeon, examines him and diagnoses abdominal contusions caused by John's lap belt.

John has few signs and symptoms, and thus, the doctor fails to diagnose a torn mesentery (the membrane that supplies blood to the intestines). John dies because of the delay in diagnosis and the resulting ischemic bowel. The plaintiff lawyer representing John's estate investigates and discovers:

* The radiologist failed to identify a small hematoma and a fractured vertebra where the bowel was slammed against the backbone by the seat belt.

* During the night, John continued to experience worsening abdominal pain and was unresponsive to the narcotic pain medication administered, but the nurses failed to report this to the attending physician.

* Until morning rounds the next day, the attending physician never examined John or called for a report on his condition. By then, John's fate was sealed.

* According to the plaintiff's expert witness, there was no medical negligence when the attending physician, a surgeon, missed the torn mesentery, because when John arrived at the hospital, he had very few signs and symptoms, none of which suggested a torn mesentery.

The lawyer filed suit for medical malpractice and wrongful death against the hospital, its nursing staff, the radiologist, and the surgeon.

To prepare deposition questions designed to elicit criticism of these code-fendants, the lawyer must determine which rules apply and who is responsible for complying with them. In John's case, the rules--medical association guidelines, the medical literature, and hospital rules and regulations--establish that the defendants bore joint responsibility to arrive at a correct and timely diagnosis. Specifically:

* The radiologist was responsible for interpreting the studies ordered by the attending surgeon and recommending any additional tests necessary to evaluate John.

* The nurses were required to notify the attending physician of any significant changes in John's condition and to otherwise comply with physician orders for monitoring and evaluating him.

* The surgeon was responsible for ensuring that John was observed closely in order to determine whether his condition deteriorated following admission because of internal injuries that were not diagnosed.

The lawyer needs to craft questions that will show how the defendants relied on one another to follow these rules, and how the failure to follow these rules led to John's death.

Ask the right questions

When seeking to elicit criticisms of the care provided by a "professional" code-fendant, don't ask the witness whether that provider was negligent: The witness may not want to "pass judgment" on a colleague. Therefore, ask about the rule, not the person.

Ask specific deposition questions and demand specific answers. Those questions will be repeated verbatim at trial, and if the witness strays from the earlier response, you can impeach him or her--unless the deposition question or answer is ambiguous. In that case, the witness will claim that the prior answer is consistent, and the judge may block use of the deposition testimony for impeachment. At the very least, you will be forced to quibble with the witness over what the previous question or answer was, destroying the effectiveness of the cross.

In the hypothetical case, the plaintiff lawyer might use this line of questioning in the surgeon's deposition to elicit criticism of the other defendants.

* Do you rely on radiologists to properly perform and correctly interpret the radiology studies you order? (A general proposition the witness would always admit; otherwise he or she would assume liability for all duties of the radiologist.)

* Did you rely on the radiologist to do so in this case? (A case-specific question that, if denied, would also make the surgeon responsible for the radiologist's errors.)

* Do you indicate in your orders the reasons for the specific radiology studies? (A general question to allow the witness to establish good practice.)

* Did you do so in this case? (Lays the foundation for a later follow-up question specific to this case that lays blame on the radiologist.)

* Do you rely on radiologists to advise you if, in their opinion, the studies you ordered were not adequate to rule out the condition you are concerned about? (General proposition.)

* Did you rely on the radiologist in this case to tell you if the study you ordered was inadequate to rule out an intra-abdominal injury? (Specific to the case.)

* Did anyone advise you in this case that the noncontrast CT scan that you ordered was inadequate to rule out certain intra-abdominal injuries? ("Anyone" is broad enough to include the radiologist, without asking the surgeon to address the radiologist specifically.)

* Had you been so advised (again, leaving out the individual radiologist):

Would you have reordered the CT with contrast? Why?

Would you have changed your orders to include additional lab tests or more frequent nursing observations? Why?

Would you have examined the patient earlier than you did? Why?

So you are saying that you would have done those things because you think the patient's condition (not the "standard of care") warranted them, correct?

* If the fractured vertebra had been reported to you, would you have been alerted to the possibility of an intra-abdominal injury? Why? (A competence question. It asks this surgeon to demonstrate his or her knowledge by explaining the mechanism of injury--compression of the abdomen by a seat belt. The surgeon's explanation lends importance to this otherwise insignificant injury.)

* Do you rely on nurses to advise you about significant changes in patients' condition? (General proposition.)

* Is a patient's failure to respond to narcotic pain medication something that you expect nurses to recognize as a potential problem? (General proposition.)

* Is it your understanding that nurses are trained to assess and recognize developing symptoms of intra-abdominal problems, such as increasing pain or rigidity? (General proposition.)

* Did anyone ever advise yon (again, keeping the question generic even though it clearly refers to the nursing care) that the patient was experiencing increasing pain throughout the night? That he was not responding as expected to pain medicine? That he was developing any abdominal symptoms?

* Had you been advised of any of those things, what would you have done? (This specific question forces the witness to discuss treatments not available to the patient because the nurse did not advise the witness of the problem.)

* Is timely diagnosis and treatment essential in a case of intra-abdominal injury that can result in an ischemic bowel? (General proposition.)

* By the time you first learned the information we have been discussing about this patient, is it fair to say that it was too late to operate on him and save his life? (This is self-evident, as the surgeon will otherwise have to acknowledge that he or she could still have saved the patient but did not. The answer provides causation for all the failures that led to the delay in diagnosis.)

By the time the plaintiff lawyer completes the surgeon's deposition, the radiologist's and nursing staff's failures are established and criticized.

The depositions continue with the radiologist and nurses. First, the lawyer will ask the witnesses to identify the surgeon's "rules," whether the rules are valid, and whether the witnesses had a right to rely on the surgeon's following them. Using a line of questioning similar to that used in the surgeon's deposition (progressing from general to case-specific, interspersed with "competence" questions), you will elicit testimony helpful in establishing the surgeon's failures.

The divide-and-conquer strategy leaves defendants with a clear choice: They can support their codefendants, and hence join them as accessories to negligence, or they can testify truthfully that their colleagues violated the rules. For most witnesses, that's an easy call to make. And that's good news for plaintiffs.

James F. Szaller is a managing attorney with Brown & Szaller in Cleveland. Gerald S. Leeseburg is a partner with Leeseburg & Valentine in Columbus, Ohio.