Our goal continues to be to provide you with relevant and helpful material in The Discovery Update that either you will use in your practice or that you will forward to other legal professionals inside or outside of your firm.
In this issue, our feature article focuses on preparing your client for deposition and offers suggestions on ways you can work with your client to make it a smooth process. We hope that this article gives you new information about how to coach your client to testify or is a reminder that spending the time doing so will benefit greatly.
We also recently added a “What You Might Have Missed” section which includes informative articles from past issues of The Discovery Update that you may have missed previously or that you would find helpful again.
As always, we invite you to send us any articles or tips you may have regarding the discovery process so we can share them with our readers.
Preparing Your Client for Deposition
By David Newdorf, Newdorf Legal, San Francisco, California
Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience. At the end of the day, a weak performance or just one poor answer can sink a case. But even with stakes this high, most lawyers do not spend enough time preparing the client to testify. While the demands of your practice, your client’s calendar, or the legal budget for the case may not allow it, ideally you should spend at least two hours of preparation with the client for each anticipated hour of deposition. And sending your client home with a stack of documents to review is no substitute for the face-to-face prep session.
Here is a basic outline and some tips for your deposition preparation session with your client:
Start with the basic procedure.
Let the client know the who, what, when and where of the deposition. Who will be present? Explain the role of the court reporter. Tell the client whether the deposition will be videotaped. Explain the oath. Go over the Q & A format. Explain that you may be stating objections for the record, but that the client will have to answer the question except in the rare cases when you instruct him or her not to answer. If this is the witness’s first depo, he or she will appreciate learning about the basics. The client will likely have some anxiety, and letting him or her know what to expect will lessen the unease.
What is MMSEA Section 111 and How Does it Affect Me, My Practice and My Clients?
By Katrina J. Valencia, Esq. Schaffer, Lax, McNaughton & Chen, Los Angeles
MMSEA Section 111 is the Medicare Secondary Payer Statute amended by Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”). Beginning on
January 1, 2010, extensive new Medicare reporting obligations apply to all insurance companies, self-insured businesses, and any other business that make payments to Medicare beneficiaries as a result of litigation claims. These businesses—referred to as Responsible Reporting Entities (“RREs”)—are required to report all payments to Medicare beneficiaries over $5,000, including settlements and payments made as a result of litigation. The reporting requirements have been implemented so that Medicare can determine whether it has a lien on any portion of a settlement or payment. Failure to report can result in significant financial penalties totaling over $1,000 a day.
Who is Required to Report?
The RREs do the actual reporting of payments to the Center for Medicare and Medicaid Services (“CMS”). This process begins with a query to CMS to determine whether the plaintiff is, in fact, a Medicare beneficiary. However, the RREs cannot perform the query without specific information obtained from the plaintiff, and forwarded from either plaintiff or defense counsel. The RREs are required to provide to CMS either the plaintiff’s Medicare Health Insurance Claim Number (“HICN”) or Social Security Number (“SSN”). While the RREs may submit either, it is preferable to submit both to ensure a match if the plaintiff is in the system. In addition to the HICN and the SSN, the RREs are required to submit the plaintiff’s last name, his/her date of birth, and gender.
A. It’s nothing out of the ordinary that I didn’t, you know, go by and see Ms. Smith and Jim, you know, because, you know, I’ve always helped Jim out, you know – and, of course, – Ms. Smith having this Alzheimer’s disease and all, you know, I always wanted to visit with her as often as possible.
Q. You say Ms. Smith has Alzheimer’s?
A. That’s what I understand. Q. Is she lucid? A. No, sir. She’s smart as a whip.
Are You Ready?
Q. Am I talking loud enough to where you can hear all of my questions distinctly and clearly?
A. Yes, sir. I don’t know how good I can talk. I left my teeth at home, in a glass of water.
Q. Well, gum it out good and loud.