This article is written for plaintiffs facing depositions in personal injury cases. It provides an outline of the deposition process, as well as the ten things I think every plaintiff must know before they go into the deposition room in their personal injury case. If you are a plaintiff in a personal injury case, feel free to give this to your lawyer and discuss it. If you are an attorney who handles personal injury cases, please be my guest and use this article with your clients when it is time to prepare them for their depositions.
What is a deposition?
A deposition is a question and answer session with the other side’s attorney. The other attorney will ask you questions. You will give answers. Your attorney will be there with you during the deposition. A court reporter will also be there, taking down everything that is said. The court reporter is also called a stenographer. Sometimes (but not usually) depositions are videotaped.
Why do I have to do a deposition?
Once you file a lawsuit in a personal injury case, the other side has a right to find out what information you have about the accident and your injuries so they can be prepared for trial, if the case doesn’t settle. They are entitled to discover these facts, your recollections and impressions through the use of things like interrogatories (written questions), requests for production (formal requests that you send them documents) and depositions (oral questions and answers).
What kinds of questions will they ask?
The defense attorney in a personal injury case will generally ask questions of the Plaintiff that cover the following areas:
- General background information such as name, address, date of birth, who is in your family, education, work history, etc.
- Information about your physical condition before the injury occurred. For example, in a slip and fall case where you broke your left arm, the defense lawyer is going to want to know if you are left handed or right handed, and he or she will want to know if you had any problems using that arm before the accident.
- Information about the accident – how did it happen? Who were the witnesses? Did you talk to anyone after the accident? What did they say?
- Information about your medical treatment and physical condition after the injury occurred. For example, What injuries did you sustain in the accident? Who treated you? Did you go to the hospital? Did you see your family doctor? What did the orthopedic doctor do? How long did you have to stay home from work after your surgery?
- Information about the impact of the injuries on your life. What are you no longer able to do? What are you able to do but only with difficulty?
What else happens in the deposition?
The first thing that happens is the court reporter swears you in. If you don’t want to swear to God, tell your attorney or the court reporter so they can ask you to “affirm” instead. Then the other attorney will usually ask you to follow his or her rules. Ninety percent of the time, these rules are a) don’t talk over his questions because the court reporter can’t get down two people talking at once, b) if you don’t understand the question please ask for clarification, and c) if you need a break ask for one. Then the questions and answers begin. Once the deposition starts, you cannot talk to your attorney about your testimony. Your attorney is only there to protect you from improper questions. If your attorney objects, stop talking. Let the attorney get the objection out and then he will tell you whether to answer or not. Most of the time, objections are “for the record” only, because there is no judge present. So a lot of times, attorneys object to questions and then tell their clients to go ahead and answer. Don’t be surprised if that happens.
What are the TEN THINGS I should know about giving a deposition in my personal injury case?
1. A deposition is a question and answer session. It is not a conversation. The pattern of the deposition should be:
QUESTION . . . PAUSE . . . ANSWER . . .
QUESTION . . . PAUSE . . . ANSWER . . .
It should feel kind of disjointed. If the deposition starts feeling like a comfortable conversation with an old friend, you’re doing something wrong. It should not roll along effortlessly like a conversation. You need to take control. You need to make sure that after you hear the question, you pause and think your answer through. After you are sure that the answer in your head is the best, most accurate answer, then you say it. Taking a pause and thinking through what you are going to say has two benefits: First it lets you “taste your words before you speak them” to make sure that you aren’t going to say something you will later regret. Second, it lets you take control of the deposition. You have to realize that a deposition is like dancing with a partner. You are going to let your dance partner lead by asking questions. But you still maintain 49% control over the way the deposition goes by controlling the pace.
2. Your answer should be a sentence long. It should not be a paragraph, a chapter or a book. If your answer is longer than a sentence, you are giving too much information. The defense attorney is being paid by the hour to formulate intelligent questions. Let him do his job and come up with some follow-up questions.
At some point in your deposition, you may feel that your answer is incomplete and you will want to further explain so that the lawyer gets what you are saying. Fight the urge. You never want to volunteer something that wasn’t asked for in a deposition. If you get the feeling that you should give more information to fully explain something, just remember that we can talk about it after the deposition is done and write a letter to the other attorney if we really have further explaining to do.
3. Dress appropriately to make a good impression. Before the deposition, plan out what you are going to wear and how you will appear. Shower, shave, and get a haircut. If you have tattoos that can be covered, cover them up. I am totally in favor of being your own authentic person on your own time. But I’m not going to pull anyone’s attention away from the relevant facts of your case by showing up with my tats out, and neither should you. If you have jewelry in non-traditional places (eyelids, tongues, etc.), remove it. I recommend looking like you are going to church or a job interview.
4. The way to impress the other attorney is by working hard to give honest, accurate and direct answers. Once the deposition starts, forget yourself and don’t worry about how you look or how you sound when you speak. Listen closely to the question, think hard and remember the right answer, then give that answer in a sentence. When you do that, it becomes apparent to everyone else in the room that you are trying hard to give honest, accurate and truthful answers and you will look good for it, no matter what.
5. Pay attention to your basic needs – rest, food and water. A deposition is taxing. On top of the anxiety that everyone naturally has, you are going to basically ask your brain to run a mini-marathon. Your brain is not likely used to the amount of thinking that is done in a deposition. Therefore, the night before the deposition, have a decent dinner then get a good night’s sleep. In the morning, eat breakfast. When you go to your deposition, take a snack and some water, juice or iced tea. During the deposition, don’t be afraid to take ten minute breaks. Feel free to tell the attorney that you want to take a break and use the bathroom, stretch your legs, get a drink of water, get some fresh air, etc. I advise taking at least one break every forty five minutes.
6. Don’t be afraid to say “I don’t remember”. I once testified in court at a trial. The attorney asked me a question and I blanked. It was something I should have remembered, but I just couldn’t. I was embarrassed and I probably looked pretty dumb. I told the attorney I didn’t remember the answer but if he would move on to the rest of his questions then come back to that one, I would try to remember. Everybody forgets things. If you don’t remember something, say “I don’t remember”. Don’t try to fill in the answer with what you guess is the right answer because once you give an answer in a deposition, you can’t change it.
7. Don’t be afraid to say “I don’t understand” or “I’m not 100% sure what you’re asking”. People don’t like to admit they don’t understand the question, and they hurt their cases by not admitting they don’t know what is being asked.
I once had a deposition where the defense attorney asked my client to list her extra-curricular activities. Her answer was “shoplifting”. She thought extra-curricular activities meant criminal convictions. She didn’t want to look dumb by asking what extra-curricular activities meant.
I have had about half a dozen cases where the defense attorney asked my client, “subsequent to the car accident, did you have neck pain?” and my client said “No.” These folks thought “subsequent to” meant before. It means after. If you’re not 100% sure what something means, ask.
8. Just because they ask you a Yes or No question doesn’t mean you have to give a Yes or No answer. One of the reasons for taking your deposition is to lock you into an answer. Instead of saying “Yes”, try saying “As far as I can recall”. Instead of “No”, you could say “I don’t recall that happening”. That way, you’re not really locked in to that answer. If you remember the information later, you can change your answer to make it true.
Here’s an example: You were in a car accident, hit your right knee on the dash and had surgery to repair the damage. We sue the other driver who hit you. In your deposition, the other driver’s attorney is going to ask whether you ever had any right knee complaints before the car accident. If you answer that question “no” and there’s a record from your family doctor from nine years ago where a bumble bee stung you on your right knee and you told the doctor it hurt, you look like a liar. In the deposition, if you say “I don’t remember ever having right knee problems before the accident”, then they wouldn’t be able to make a liar out of you.
9. Always ask to see what they are referring to when they refer to records or reports. Defense lawyers will ask questions such as “On November 14th, 2009, did you see Dr. Suchandsuch complaining of pain and numbness in the right upper extremity?” The only appropriate answer to that question is, “May I see the record you are referring to?” Make them show you the record. If you remember the incident recorded in the record, tell them that you remember that doctor’s visit, and answer their questions as best you can. If you don’t remember seeing the doctor on November 14th, 2009, tell the attorney “I’m sorry but I don’t remember being there on that day”. The record wasn’t created by you. If the defense attorney wants you to talk about what somebody else wrote in a record or report, unless you remember it, tell the defense attorney to go ask the person who created the record or report.
10. Be aware of what is in your medical records, particularly your medical records from before the accident. If you are making a claim for low back pain and a herniated lumbar disc from a car accident, you should know whether there are any documented complaints of low back pain in your medical records in the five or ten years before the accident. Your attorney should have most or all of your medical records. Ask to review the pre-accident records and talk to your attorney about any prior, similar complaints.
There you have it — my top ten tips for deposition success. I hope this helps ease some of the stress and anxiety that comes along with giving a deposition and helps you understand the process.
Benjamin A. Schwartz is a Delaware personal injury attorney who accepts cases on behalf of plaintiffs arising from car accidents, bus accidents, commercial truck or tractor trailer accidents, motorcycle accidents, slip and fall and other premises defect accidents. These cases involve wrongful death and serious injury or catastrophic injury. If you would like to speak to Ben about your case, or if you are an attorney who would like guidance on preparing a client for a deposition in a serious injury case, please contact us today.
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