Taking the Dog Owner’s Deposition

There are three unique characteristics of dog bite defendants. They can be extremely helpful witnesses, they usually speculate about why the dog attacked, and they are in a unique position to reveal the true cause of the incident if the questioner knows what to ask. Each of these aspects of the deposition is discussed in this section.

But know this too: the relationship between the dog owner and victim often limits the causes of action that the victim’s lawyer can plead. For example, the victim might direct the attorney to not allege negligence against a friend or family member. This can make some cases impossible to prosecute, so you must learn the victim’s desires prior to commencing an attorney-client relationship. If you are not “on the same page” as the victim, the case may prove to be difficult and unsatisfactory.

Dealing with the dog owner as a helpful witness

The dog owner usually is the victim’s relative, neighbor or friend and can be one of the most helpful plaintiff’s witnesses. He might be very much on the victim’s side. He might be very angry at the unreasonable behavior of his insurance company and defense attorney. His body language and tone would imply hostility in another case, but here you are seeing a person trying to hold in a lot of sadness and self-blame.

If treated properly, this witness will participate more willingly in the question and answer process. He is more likely to be candid and informative. He is less likely to cover up and stubbornly maintain a position. Therefore you must approach him differently than other defendants. At the very least, you must have respect for his relationship with the victim – it will continue long after you move on to the next case.   

Tip: Here are two topics upon which he can be especially valuable:

  • Since the accident is a family matter or neighborhood matter, he knows most of the other witnesses (on both liability and damages). He probably has been talking to them about what happened in your case. Therefore it is possible to virtually depose everyone by asking him who is saying what to whom.
  • He may have gone to the hospital with the victim, and has seen the victim throughout his recovery, so this defendant will make a powerful damages witness. He can tell you a great deal about how the victim suffered, and might even have the bloody clothing, bloody rug, etc.

Dealing with speculation about why the dog attacked

If the dog owner was present when the attack happened, he can hurt you (if you let him) on the issue of provocation or comparative negligence. A dog owner always speculates about the reason why his pet mauled your client, coming up with some kind of justification or excuse for it. Because this excuse probably involves blaming the victim for something, you must debunk the dog owner’s testimony about provocation and comparative negligence. This requires that you get from him the details of the attack.

It bears noting that the insurance adjuster and defense attorney always use whatever defensive information the defendant will give them, no matter how nonsensical. For example, in a case where the dog savagely tore open the corner of an older woman’s mouth, the defense was, “Your client had eaten lamb for dinner.” Three months later, the case settled for the policy limit of $300,000. Obviously, this “defense” did not win the day, and the insurance company which had relied upon it had no real belief in it.

The testimony about provocation or comparative negligence almost always turns out to be pure guessing. A study of the provocation defense established that provocation actually occurs in only 6% of dog bite incidents. Remember, provocation is a legal doctrine that is similar to self-defense. In other words, a person’s actions might indeed have provoked the dog, in the sense of motivating the latter, but the legal doctrine permits the dog’s attack to be excused under very specific circumstances, such as conduct of the victim that was something that would justify violence undertaken in self-defense.

Therefore it is always productive to ask many questions about the factual defense (if one is being made), so that (a) you will know exactly what it is, in case it is legitimate, and (b) the fantasies and fabrications can be exposed, in case it is not.

When the dog owner is a stranger to the victim, the defendant often will not only speculate but will lie outright. For example, in one case a dog owner testified that his dog had never bitten a person before biting the victim on the nose. When the dog’s veterinarian was deposed, Attorney Kenneth Phillips noted scars around the vet’s nose. In response to questioning, the vet testified that the scars were from the same dog, inflicted one month before the dog bit the plaintiff – and the dog owner was in the room when the dog bit the veterinarian.

In another case, a dog owner testified that nobody in the neighborhood had ever complained about her dogs being dangerous. In fact, more than 30 neighbors had signed two petitions to that effect, and the petitions had been formally presented to the dog owner several months before the attack on the plaintiff. The cross-examiner, Mr. Phillips, allowed the dog owner to testify falsely for several minutes before showing her the petitions, so that it would be clear that she indeed was intentionally lying.

Remember one simple fact at all times: this dog bit the victim. That act was almost certainly the most recent in a series of aggressive incidents against humans. If you investigate thoroughly, you will find prior bites, other evidence of dangerousness such as snapping and lunging, or some other reason for the dog to attack, such as ill health, poor training, etc.

Tip: Prior to the deposition, you should conduct discovery through Interrogatories, Requests for Production, Requests for Admissions, and in some cases Request for Inspection of Premises. These will enable you to prepare your deposition outline with more thought and focus. The defendant’s responses to written discovery such as interrogatories served prior to the deposition are important tools for obtaining the full story.

Drawing out the real cause of the attack and how the dog owner himself caused it

The dog owner is the best source of information required to understand why the mauling took place and why he himself probably was responsible for it. He will supply the clues as to what made the dog bite – and why he himself was to blame for the incident.

You will find that neither this witness nor his attorney probably will have even a clue about the real reason. This is because very few dog owners and lawyers know why dogs bite people. One or more of the following factors are usually involved:

  • Breed and “parents” of the dog.
  • Socialization and especially early experiences of the dog.
  • Training.
  • Health.
  • Behavior of the victim. 

The dog owner usually can shed light on each of these factors. For example, he might testify that his dog is very reactive and unpredictable (poorly socialized), he trained it himself (although he knows little about dog training), the dog had a metal plate in its right leg because of being hit by a car (raising the issue of what it must feel like if someone innocently touches that hip), and the victim must have stepped on the dog’s tail (“must have” means guessing).

Follow-up questions about, for example, the metal plate might reveal that touching the hip would make the dog yelp in pain and occasionally snap at a person. At that point you would ask whether dog owner warned the victim about petting the dog near its hip. Usually the defendant will respond that he did not give any warnings. Knowing the factors permitted you to ask the right questions and uncover some very important information.  

Tip: you and your expert on canine aggression need to read A Community Approach to Dog Bite Prevention, The Ethology and Epidemiology of Canine Aggression, and Dog Bites – Basic Behavioral Principles and Misunderstood Words, all of which you will find links to at Dog Bite Law: Research Articles on Dog Bites.

Deposition Topics

Experience with dogs

Breeding of dog

Prior owner of the attacking dog

Why this dog was selected

Establishing ownership of dog

Training of dog

Knowledge that the breed is unsafe

Attacking dog’s health history

Dog’s temperament, socialization

Manner of keeping the dog, abuse

Fences, gates, signs, warnings

Viciousness of the dog

Complaints from neighbors

Treatment of dog on DOA 

Attacking dog prior to DOA

Victims prior experiences with dog

Behavior of victim before attack

Warnings and assumption of risk

How the attack began

The dog after the attack

Preventative measures after attack

Animal control investigation

The foregoing is a partial list. For hard-hitting deposition questions, interrogatories and requests for admissions, and to save time preparing for depositions of the dog owner, witnesses, and experts in dog cases, download a copy of Kenneth Phillips’ Dog Bite Litigation Forms for Plaintiffs’ Attorneys. And for more tips and tricks, download a copy of his seminar on strategy and tactics, Anatomy of a Dog Bite Case. If you get them at the same time, there is a big discount – you’ll see it when you click on either of the two links in this paragraph!