# 1. State the full content of every conversation you had with
[the plaintiff] about the subject of [the items which are involved in the claim
of legal malpractice].
[The experts for each side need to have a basis for
understanding the case, and not find out later that the defendant attorney
claims there was "something else" that passed between plaintiff and
defendant, in the course of the professional service, that excuses the
defendant's actions, or implicates the defendant in further troubles. All too
often the deposition transcript describes fully only what counsel thinks are the
relevant conversations, and does not include fully every conversation between
plaintiff and defendant on the subjects in question.]
# 2. Is that all you can remember that you said and he/she said about
the subject of [the items which are involved in the claim of legal malpractice]?
[This is frequently not asked because of a desire not to be
personally offensive. Yet without it, the defendant can sometimes claim
that he/she would have said more if given the chance.]
# 3. Is there anything that would help you remember more about what was said
concerning [the items which are involved in the claim of legal malpractice]?
[Attorneys have secretaries with piles of paper and attorneys
have lots of memory helps such as electronic calendar systems.
Sometimes after a deposition, the defendant attorney goes back to look at
something at the office and then a "correction" to the deposition is made.
It is better to find out what "memory helps" exist and ask immediately for
them to be produced.]
# 4. Have you produced every written communication between [the
plaintiff] and you?
[See comment to question # 1, above.]
# 5. Were there any emails or faxes at all between [the plaintiff] and you? If
so have they -- all -- been produced?
[In today's world, both parties may use an email or fax and then
forget that it existed. You should ask specifically about them.]
# 6. Were you negligent in your handling of the matter for plaintiff?
What is the basis of that opinion?
Do you have any other basis for
[Remember that the defendant attorney 99 times out of 100 is going to be giving an
opinion in the trial as an expert attorney that he/she was not negligent. Just as you
depose the retained experts in the case, you need to depose the defendant
attorney as an expert and drain him/her dry of every opinion they might offer.
If the objection is made that you cannot ask for opinions, or that there is
a lack of foundation for your questions regarding opinions, respond that
then the defendant will not be able to give any expert opinion at trial.
Either the defendant is an expert or is not an expert on whether he/she was
# 7. You have said that you were not negligent because [repeat back what was
said by the defendant attorney]. Is there any further opinion that you
have why you were, or were not, acting as a reasonable attorney?
[Without this question, the defendant can sometimes claim
that he/she would have offered another opinion or more amplified opinion
if given the chance. The retained experts want know what
opinions are going to be in the case.]
# 8. Is there any other possible reason why you were not negligent in
handling this matter?
[Once the defendant attorney answers "no" to this question,
his/her retained expert will have a hard time offering an additional
justification for the defendant's actions.]