Taking Depositions in Nursing Home Cases
Want to strengthen your nursing home abuse case? Depositions can make or break a lawsuit. This week, nursing home abuse attorney Rob Schenk welcomes trial lawyer Dawn Smith to share her expert strategies for taking depositions in nursing home cases. Learn how to maximize case value, depose staff effectively, and uncover the truth to fight for justice. Don’t miss this essential guide for attorneys and advocates alike!
SMITH:
You want to create your theme of your case by those perfectly phrased questions. One, two, three, so it’s a perfect soundbite for the jury later. You just have to keep pushing. You backtrack and then you just hammer them with all three of those points. I think that’s so important to develop in every witness.
SCHENK:
Hey out there, welcome back to the nursing home abuse podcast. My name is Rob. I’ll be your host for this episode. I think this is a special episode, not just because we have a fantastic guest in Dawn Smith. She’s fantastic trial lawyer, et cetera. This is an interesting special episode because this is the first episode of what I would say is season four, maybe.
Season four. Yeah, we started this in 2017. And by the way, we record the episodes. I recorded a ton of episodes at the beginning of 2024. And now all those episodes have played out. And now I’m in the process of batch recording a whole bunch of a whole bunch more episodes, which will slowly start to publish every week in 2025 and into 2026.
It’s time to get into the meat and potatoes of the episode, but we are not talking about nursing home depositions by ourselves. We have the fantastic trial lawyer, Dawn Smith to help us along. Dawn Smith developed a passion for law in eighth grade after witnessing an oral argument. At the Supreme court, the first in her family to graduate college.
She earned her law degree from Whittier law school as co founder of Smith Klein, Smith, LLP. She advocates for victims of nursing home abuse and neglect nationwide. Her trial team secured recently a historic 322 million asbestos verdict, which is amazing. It’s amazing. She is actually also a fellow podcaster.
Engage with Smith & Clinesmith LLP on LinkedIn to learn more about their legal services and specializations at Smith Clinesmith LLP LinkedIn.
She has a fantastic pod, a podcast called ladies. In law which is redefining success and empowering change in business and law. That’s the tagline, but it’s ladies in law is the name of the podcast, which she co hosts with Lisa Goucher and Kelly Raymond. So be sure to check that out. The link to that podcast will be in the show notes.
Another fun fact is that she bartended for eight years before law school. And here she is today serving us up, not with drinks, but with. Incredible knowledge, Dawn, welcome to the show.
SMITH:
Thank you. I’m so excited to be on. I love what you do on this. I’ve learned a lot from you listening to your podcast, so it’s pretty exciting.
What is your general philosophy for taking depositions?
SCHENK:
Oh, wow. Thank you. I appreciate that. I have had a couple of episodes centered around the philosophy of depositions in nursing home cases. Some people are saying, Rob, I think we should go in and attack the lower level people first and then go, go corporate last or vice versa. I’ve heard everything in between.
Okay. And I guess depending on the attorney, there’s no right or wrong. I’m so happy that you’re on the show. You were highly successful trial attorney. I want to get your perspective on this. How do you approach depositions and nursing home cases, whether it’s who do you go first, like what you’re asking, whether you’re going for kill shots, these type of things, just and I know that’s a general question, but I guess do the best you can with it.
SMITH:
Yeah I’ll say, first of all, kill shots are the best thing to have. There’s no reason to take a deposition and just like old school going through every single thing that they’ve ever done in their life. And, where were you on Tuesday? And then what did you eat for lunch on Thursday?
Depositions are expensive. They’re incredibly expensive nowadays, and we videotape all of our depositions. I think the most important thing to do during a deposition is get key admissions. Get key admissions and making sure that you’re laying the foundation to get all of your best evidence in. That’s really my strategy when it comes to What you need to get Mark Lanier, I went through his trial college that he has in Austin and he’s amazing.
Just billion dollar verdict after verdict. And he, when he was a young lawyer, and he was working for somebody else. That was very experienced. He said Hey, I want you to take the step. Oh, he’s okay, first step. Oh, and so he prepares lots of time. And the partner comes in and goes, do you know what you need to get?
Okay. And he’s yeah I think I do and hemmed and hawed around a little bit and he’s come on, let’s go. Let’s go. I’ll do it. You come with me. And he sat down and asked 2 questions and that was it. It was just establishing liability. It was a oil rig and, should it be should the floor where people are working around really dangerous equipment?
Should that be should it be safe? Should it be wet ever? And he was like. No, he’s okay, I don’t have any other questions. So that really opened my eyes. And I think about that a lot when I’m taking a deposition. So that’s my strategy overall.
SCHENK:
How do you typically approach, let’s just say that it’s a typical, oh, I would say a typical, let’s just say that it’s a pressure entry case and you have in front of you.
The director of nursing, for example are you, when you write, as you sit down or are you drilling them on a particular point or do you do the, you spend a few minutes building rapport, like typically, I don’t, I’m not trying to make you give your special sauce or anything like that, but we talk about these the quote unquote kill shots, but are you doing that right up front or are you trying to build something with this particular witness?
SMITH:
Yes. Most of the time, I don’t do it right up front. Most of the time, I do try to build a little bit of rapport, but I don’t spend a lot of time on that. The most important things for me for a director of nursing is to talk about policies and procedures to get really the standard of care.
The fact that they’re. There to keep the residents safe that everybody’s supposed to be following them. And then the job descriptions are super helpful. What the responsibility levels who and then who they report to, you’ve got to start building going up the chain of command with every single deposition that you take.
I build a little bit of rapport with them. But then I just start. I start getting admissions as soon as I’ve done that.
Understand the nuances of deposing nursing home CNAs and the critical role they play in legal proceedings through our podcast, Deposing Nursing Home CNAs.
SCHENK:
I feel like sometimes at least in my experience, it’s it’s not like you give what you get, but sometimes with the first couple of questions this person.
And so they’re already hostile to you, or it could be, this is a person that’s like this, a frontline person. I’m going to take it easy on them and maybe lead them into traps versus just bonking them on the head. Do you find that yourself? Like you would. You change your strategy based on how the witness has approached you.
SMITH:
100%. I tell everybody when, when we’re training our associates, you should have an outline. You need to have, your topics that you need to hit so that you make sure you get everything that you need. But I don’t use that outline like. Step 1, step 2, step 3. I think that so many people that are taking depositions fail to listen to what the other person is saying.
Really listen and take them where they want to go as opposed to taking them where you want to go right then. Your questions can wait if you feel like you’re going to get a lot of great information going down this path with them. So I’ll go down. I go down paths. They pick the path and I go down that path with them.
And then I go back to get where I need to be on my outline.
SCHENK:
So I had Roger Dodd on the podcast and in the not too distant past. And he was describing what you’ve described, which is to say that know where you want to go and have that kind of outline, but it’s okay. If the deponent wants to take you into a certain spot And I think what’s interesting for him and something that I’ve adopted, and I get a lot of pushback from other attorneys that don’t agree with this, and I would love to get your insight on this.
I do leading questions. I type out every single question as a leading question, and I try to get every single one of them right. In exactly the way that I have written it now, if they want to go off and do something, I’ll let them, but it always comes back to that. And I didn’t know some people, it’s just, they don’t want to be married at all to a script is where do you fall on that?
SMITH:
So I think you’ve got to give your, get your rules, especially with your director of nursing and your administrator, you want to get your rules and you want to create your theme of your case by those perfectly phrased questions. I think that what I do is I usually. Kind of push push to get what I want.
And then I come back over and then use those perfect perfectly phrased questions 1, 2, 3. So it’s a perfect soundbite for the jury later. Sometimes they, they struggle with you and they don’t really answer the way you want. But if you push them a certain way, you’ll get it. You just have to keep pushing and then you backtrack and then you just hammer them with all three of those points that you want to establish your rules for the case, the ones that you’re going to use, with every witness throughout the case.
I think that’s so important to develop in every witness.
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How do you utilize depositions to achieve maximum value for nursing home cases?
SCHENK:
So typically, Dawn like. How are you using, or if at all your depositions to increase the case value? What are some of the, what are some of the core things that you’re doing with those depositions?
SMITH:
So from our perspective, the defendants are always want to wanting to take it down the medicine side.
I feel like so many people just get bogged down by the medicine and, what that what was happening to that person on a daily basis, what their actual injuries are. And while the injuries are really important, you got to establish a systemic failure. That’s what every deposit is for.
I’m so sorry. You might have to lock that out.
SCHENK:
No that’s staying in. That’s amazing. Wow. That’s a cute dog.
SMITH:
Yeah. She she comes to the office with me every once in a while and she’s she’s ready. She’s ready to run through the office. I don’t let her do it. She’s, she is our chief happiness operator, our chief happiness executive. So there you go. C. G. Nice.
But you’ve got to build those systemic failures in your in each deposition. And if you do that, when the defendant start arguing with you about she was sick, she was dying anyway, you just. Pull off of that and say yeah, but look at these admissions that I got from your director of nursing that you know They’re understaffed They’ve been understaffed The only reason they couldn’t provide the care that they needed was because they didn’t have sufficient staff and who makes those decisions about staffing You know, it’s the higher ups.
So I think that’s really the best way to use them to increase the value I also use them for damages I’ll ask the director of nursing, is a stage four pressure wound, is that painful? What is a debridement like for somebody like this that can’t move and has to lay a certain way, what is that like for them?
Those questions really throw them off. They’re not expecting those questions, but you can get lots of great stuff. In on damages in all for all of your witnesses, just by asking about facts that are specific to the harm that happened in your case.
SCHENK:
That’s a fantastic idea. Like I, as I sit here, I’ve never thought about that.
Like I literally asking them about that. What’s the pain level of having a scalpel to a wound like that? I’ve done before. The concept of did you ever see the resident laugh? Did you ever see the residents tell a joke or react in a playful way to something when they want to argue that this person was already out the door or this person was depressed or, old, sick and dying type of thing.
You, but I, but the damage component, I had not heard that. It’s a great. That’s a great idea.
SMITH:
Yeah. Cause you can always, and then if you hit it every single time, at the end of every, like at the end of every witness, you pull all your people up and then you’re at trial.
And then you ask those last questions just to remind the jury that this is a real person that really went through something that was incredibly awful. And you can do it with all your witnesses.
Explore techniques and tips for conducting depositions in nursing home cases in our podcast episode, Deposition Strategies in Nursing Home Cases.
Do you typically have an order in which you depose nursing home staff?
SCHENK:
So you mentioned earlier building the case of this is not just a matter of maybe a couple of nurses on the front line messing up.
This is the injury as a result of something that’s a larger systemic problem. So with that in mind, is there. Typically an order in which you approach depositions in a nursing home case do you do a certain like frontline people first and then, going up the corporate ladder to tell me about that.
How do you structure that?
SMITH:
In my view, and in my opinion, you want to lock down the important people first, because they’re usually the, the higher level people are a little bit more savvy. And if you take depositions of the, the CNAs and everything first, then the higher up people mold their testimony to explain away what was happening at the lower levels.
So you want to shoot here.
SCHENK:
That’s okay. I can barely hear it. It’s just like a boop.
SMITH:
So you want to definitely lock those people in, lock the director of nursing in and lock the administrator in on what their testimony is going to be. So they can’t change it later. So we usually do the administrator, the director of nursing and a few PMK depositions first.
That’s, we almost always do it that way. The only reason I wouldn’t do it that way is if I had like a former employee that was brilliant that was just going to it. Completely hammer them. I might take that one first, but we pretty much in almost every case do the, do those three first PMK person, most knowledgeable and qualified or corporate representative, the director of nursing and the administrator.
Learn about the timeline and processes involved in settling a nursing home abuse case in our detailed blog post, How Long Does It Take for a Nursing Home Case to Settle?.
SCHENK:
So your PMK deposition that you’re describing that you’re doing at the beginning of the case do you typically get into. To the substance of the case are you asking what’s your position with respect to skin condition at the beginning of the admission or at the end or things like that?
Or is it like, the mark Kosarovsky document deposition?
SMITH:
Yeah, I would say it’s a cross, crossover. Most of it is where the documents, where all the buried, the bodies buried, right? And so when we’re doing our motion to compel, we don’t have to deal with this attorney BS, where they’re like, yeah, we don’t know what that is.
What is that name? We have no idea what that document is. And, oh, that would be incredibly difficult to get. That would cost us thousands of hours to get, if you take the deposition of this. Person. They’re like, yeah, we just click a button and it prints up a report. And that extinguishes all of those ridiculous lawyer created ways to not give us the documents that we’re entitled to.
So it’s mainly just to find out where everything is and that it’s easy to get it.
SCHENK:
For anybody that’s listening, that, that does. Nursing home stuff. Actually, probably pretty much any case, but like particularly nursing home stuff, you have to get Mark Kozlowski book, which is, I guess it’s just 30 B six depositions or whatever.
I’ve got the book, the second edition, the DVD Dawn’s going to pull it out. There it is. Yep. 30 B six depositions. This is a brilliant book. And as Dawn has described, it’s he suggests that you use an initial 30 B six or PMK deposition to get around arguments about discovery. What’s confidential.
How can this be peer review, this kind of stuff. And it’s a great book. I highly recommend it. Actually he was on the podcast. He was one of my first guest, but we didn’t talk about that. Maybe I should have him back on and talk about 30 B six depositions.
SMITH:
He has a new, he has a new book out too.
That’s all about motions to compel. Yeah, that’s great too. You got it?
SCHENK:
Over here, Deposition Obstruction. Breaking through.
SMITH:
Yep. There you go.
SCHENK:
I’m a nerd. I’m a nerd. I’ve got all these books.
SMITH:
That’s what we do.
SCHENK:
So Dawn, any other advice that you would give in terms of just in general nursing home depositions as we wrap up?
SMITH:
I think that a lot of people don’t spend the time preparing on the front end for depositions. You have some good, some standard questions that you’re going to ask people every single time. But you need to look at the policies and procedures. You need to highlight them. You need to make sure that you know what you need to get.
When you’re going into it, you want to craft your rules before you go into it. I just think you need to sit down and figure out what you want your case to be and really use that structure throughout the course of all of your depositions. And that takes time. It’s, that takes time. It takes thought, it takes preparation.
So I, I think that a lot of people don’t spend the time that they need to developing their themes in the case before they. Start taking depositions. I just encourage people to spend a little bit more time to figure out where the pain points are, where the, the highlights are in the case, things that are really going to be compelling and honing in on that.
And you don’t have to take 8 hour depots. You really don’t, I think people take really long depots and I know I took really long depots when I first started practicing and I still have a hard time kind of letting go and moving on if I get a bone that I think is going to take me to the right place.
So I’m still learning how to let things go. But preparation and just knowing when to quit and move on. I think those are the two things that are. Are very helpful to get, succinct, great deposition testimony that you can use to increase the value of your case and used to win at trial.
Gain insights into effective cross-examination strategies during depositions in nursing home cases through our podcast, Cross-Examination Strategies for Depositions.
SCHENK:
I think that those are lessons that I need to learn.
I’m still taking seven hour depositions myself. Like I’m still going through, I want to try to get every single I, as you mentioned, I’m, Oh, you said this. All right. Let’s talk about this for a little while. But I’m, I’ve been using Saul Gruber as a jury consultant for, or not a jury consultant as a focus group consultant on cases.
And he gets so mad at me. Cause Rob, these depositions are 250 pages. What are you doing? I’m like, sorry, man. Like I just, this is how I do it right now. You just got to bear with me. So I’m also trying to trim the fat or I’m trying to learn to trim the fat. So I feel you on that.
I’m learning that lesson. Dawn, I really appreciate you coming on the show. As I mentioned at the top of the show, you are the first guest of, this new season. I don’t know if it’s season three or four, but I appreciate your time and and your knowledge.
SMITH:
Thanks for having me on.
I really enjoyed it. And I really am entertained by some of the little things that you do on your podcast. I think they’re really fun. I had really fun. I was watching one that I was like, wow, okay, this is cool. He’s cutting away and doing all this cool stuff. So I really enjoy it. Thanks for doing what you do.
SCHENK:
Thank you. All right, folks. I hope that you enjoyed. I guess would it be the beginning of this new season? If there are things that you are enjoying about the podcast, let me know if there’s things that you’re not enjoying about the podcast. Let me know. Except if it’s me, if you’re not enjoying me, I can’t help you.
I gotta do it unless AI comes in, comes from my job then. Then you’re, I guess you’re good. But much appreciation to that dirty half dozen that continually listens to and, or watches every single episode or really appreciates your support. If you have an idea for a topic, let me know. If you have an idea for a guest that you would like for me to talk to, let me know that as well.
New episodes of the nursing abuse podcast come out. Every single week. And with that, folks, we’ll see you next time.
Dawn Smith’s Contact Information:
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