Have taken hundreds of defendant driver depositions.  Used to have a checklist to make sure I didn’t forget the basics.  Lost that checklist at a few decades ago.  Now as a mentor for young attorneys, have reconstructed one which am sharing with you. 

Disclaimer: this is not an outline.  Lawyers love outlines because we think if we prepare everything perfectly, everything will go perfectly.  When an outline is strictly followed, there is no room for the unscripted.  And often it is in the land of unscripted where the good stuff lies.

So use this as a checklist.  Conduct the deposition in the moment.  Dig in when you need to.  Back off when it will help.  Listen to what the witness is saying.  And not saying.  Make sure your question relates to the last answer given.  Persist and don’t leave without complete answers. 

Checklist MVC Defendant Driver

Background –

[Note: you can avoid doing this if answers to interrogatories have been completed.  In that case you can make them an exhibit and have the defendant admit that their answers are true and correct.  This can save about 20 minutes of time.]

o   Name

o   Birthdate

o   Height

o   Residence at time of incident

  • Who residing with you (maybe they told their family/roommate what happened)

o   Residence now

o   Past residences if relevant or if you want to test memory

o   Educational history

  • Any studies in mechanics, engineering, medicine

o   Family history

  • Marital status because of community property issues

  • If living with parents because of family car doctrine

o   Employment history

  • Any employment involving driving, mechanics, engineering, medicine

o   Criminal history (you should have run a search)

o   Frequency drug/alcohol use (if applicable)

  • Any addition issues or treatment

o   Medications at time of incident

o   Medications now

o   Eyesight

  • When last checked

o   Hearing

o   Any other health conditions that may impact ability to drive


o   When did you get your driver’s license (you should already have a copy make an exhibit)

  • Explore any restrictions

  • Endorsements

  • Revocation

  • Specialty licenses like CDL

o   Go through any other incidents before or after (pull driving history)

o   Identify vehicle

  • Make, model, Vin, Color, year

  • Registered owner

  • If not defendant’s vehicle

Were you a permissive user

  • Who gave you permission

  • What was the scope of the permission

  • If you didn’t have permission explain

  • Purchased when – any paperwork

  • Was it in good working condition

  • If it wasn’t in good working condition then

  • Basis for any claim not in good working condition

  • Identify everyone who performed work on it

  • Why were you driving it if not in good condition

  • Get all documentation from dealership or any service provider or defendant. Make exhibit

  • Last time had the brakes, steering, etc. repaired and describe.  Make exhibit

  • Where is vehicle now.

On the Job

o   Were you on the job

o   What were your hours that day

o   Where were you coming from

o   Where were you going to and why

o   Identify employer or supervisor who directed/ granted permission

o   If driving the employer’s car

  • Was it maintained for your regular use

  • Was it a preassigned vehicle

  • Where was it housed when you were not driving it

  • How many times driven it

  • Any training

o   If driving own car

  • Did your employer reimburse you for mileage when you drove your car

  • How did you report mileage

  • Were you expected to travel on behalf of the employer

Cell phone/Vehicle console/Autonomous

o   Does the car have a computer console

  • Describe

  • What was it featuring before the incident

o   How did your cel connect to the vehicle

o   Was it connected day of incident

o   Where was your cel

o   Name of cel carrier

o   When is the last time you touched your cel prior to the incident

  • Text

  • Scan

  • Music/Radio

  • Call

o   If partially autonomous

  • Describe what functions were in use

Leading up to incident

o   Take us through the evening before

  • Drink/drug use

  • Time went to sleep

o   That morning

  • Time awake

  • Drink/drug use

  • Medications taken

  • Dosage

  • With or without food

o   Weather

o   What where you wearing

  • Shoes

o   Did you have food or drink in the car

o   Any passengers

  • Identify

  • Describe what they were doing

o   Audio on or off

o   Sunglasses on or off

o   Where were you travelling

o   What is posted speed limit

  • What was your speed

o   Traffic – light, heavy, medium

o   What vehicles can you remember being next to other than plaintiff

  • describe


o   Do you deny you caused the crash

  • basis

o   Who or what caused it

  • basis

o   Any obstructions

  • Describe

  • Height

  • Width

  • Depth

  • Distance away

  • If there was an obstruction, why didn’t you (slow down, stop, make sure you could see before proceeding)

o   Any weather conditions

  • Describe

  • If weather was a problem why didn’t you (slow down, stop, make sure could drive safely)

o   Where exactly were you right before the incident (use map and make exhibit)

o   Time

  • How much time passed from the time you first saw Plaintiff before the crash

  • How much time passed from the time you realized there would be a crash until there was one

o   Speed

  • How fast were you going

  • How fast was plaintiff going

  • How fast was anyone else going

o   Distance

  • How far were you from Plaintiff when first saw them

  • How far were you when first steered away/braked/took evasive action

  • How far did you travel after impact

  • Where did the vehicles end up

  • Plot on map

o   In your own word describe what happened.

  • Compare what they described to what told police – make statement an exhibit

  • Compare what they described to interrogatory response – make an exhibit

  • Compare to what is in answer to complaint – make an exhibit

  • Break it all down

o   Describe force of impact

  • Visual

  • Sound

  • Smell

o   Go through any photos of the scene – make an exhibit

o   Pull applicable rules of the road jury instructions and pin them down on any applicable elements

o   Pull law on any defenses and pin them down on any applicable elements

o   In hindsight now, is there anything you would have done differently that day that could have helped to avoid the collision

After incident

o   Did you call 911

o   Did you call anyone

o   Did you exit

o   Did you check on plaintiff

  • Why or why not

  • What say to them

  • What they say to you

  • How did they look

  • Could you tell they were injured

  • Pain, crying, fear

  • Render assistance

o   Describe scene

o   Did other civilians come to scene and what did they do

o   Describe police response

  • Describe the interrogation

  • Sign or recorded statement

  • Any arrest, citation, disposition

  • Name of officer spoke to

  • How long were they there

  • Is their description of the incident/mapping correct – make an exhibit

o   Describe Fire, EMT response

o   Did your supervisor arrive

o   How long did you stay at scene

o   Talk to any witnesses

  • Who, what, when, why

o   Then where go

o   You suffer any injuries – physical or mental

  • Have you had treatment

  • Is it ongoing

o   Who else did you talk to about the incident

  • Make any notes

  • Accident report for work

  • Followup further with police

  • Friends, family, coworkers

After that day

o   How many times been back to scene

o   Ever speak to plaintiff or family

o   What’s your understanding of plaintiff’s condition


 Photo: Masked statue Rockefeller Center, NYC