If you are reading this, chances are your deposition has been scheduled. Please read this over and call me if you have any questions.
We are going to meet before your deposition to prepare for it. You will be better prepared for that meeting if you take time now to think about the items I discuss in this post. Please read this over, and re-read it you need to do so. Let me know if you have any questions.
Discovery Deposition – What is it and Why is it Needed?
A discovery deposition is the oral testimony of a witness taken under oath before trial. It is not at all unusual. In fact, it is something that occurs in almost every civil trial. You will be asked questions relevant to the case so the opposing attorney knows in advance what you will say at trial.
We will be present during your deposition. We will be there to make objections if necessary, and to make sure things go according to the rules. We will most likely take the deposition of the Defendant on the same day, either before or after your deposition.
A court reporter will be present at the deposition. He or she will transcribe everything you say. This will be a permanent record, and can be used at trial. Therefore, it is very important to be as accurate and truthful as possible.
Please keep in mind the opposing attorney is evaluating you and your credibility as a witness. This is likely the first chance they have to see you and judge you. They are looking for your honesty, demeanor, and jury appeal. You should strive to make a good impression on opposing counsel. Please arrive on time and dress as if you were going to Court.
You should be ready to testify about the accident, your injuries and medical treatment, your prior medical history, your lost wages, and anything else relevant to this case. In particular, you should give some thought now to your prior medical history. The attorney will ask about it. Think about your past medical issues. What issues did you have? When did they occur? What body parts were affected? Who did you seek treatment with?
Please review these matters before the deposition. Please also review your Answers to Interrogatories before the deposition. If you need a copy, please ask my office for one. Consider this “homework” from me for your lawsuit.
You can be pleasant and likeable during your deposition, but do not cross the line and get “chummy” with opposing counsel. Many people mistakenly think a deposition is grueling and adversarial. They think the attorney is going to grill them hard. That is completely untrue. In fact, the opposing attorney wants to get you as relaxed as possible so you talk more. They will be nice, friendly and talkative.
Remember the purpose is to find out what you are going to say, and to judge your appeal to a jury. They cannot do that if they cross examine you. You must avoid getting too nice, friendly and talkative back. Remember that this is a game of sorts, and you are being judged. Do not ever forget you are “on” at all times.
Here are some rules for you to remember in testifying. This goes for trial too.
- Be truthful. Honesty is the best policy in a lawsuit. Nothing will sink your lawsuit faster than someone catching you in a lie or an exaggeration. The same goes if you try to hide something. If the defense attorney thinks you are lying about one thing, they will never believe anything else you say. The same goes for a jury.
- However, don’t guess if you don’t really know the answer. You may very well not remember something precisely. That is completely normal. If that is the case, simply answer that you cannot remember. If you think you remember but are not sure, you can say “I think” or “I am not sure, but . . .” These are perfectly valid answers. You do not have to remember every single thing. Just be honest about what you do remember, and honest when you do not remember.
- Watch out for estimates of time, speed, or distance. Multiple studies show humans are horrible at accurately estimating these three things. If you do not precisely know how fast you were going, or how far the car was ahead of you, then say you do not know. Try to use concrete measurements, like estimating in car lengths instead of feet or yards.
- Do not argue with, get mad at, or try to outwit the other attorney. They would like nothing better than for you to come off as defensive or argumentative. A jury will hate that. They will wonder what you are hiding and why are you defensive. If you try to out-think or out-smart the other attorney, you will come off very poorly as well. Be honest. Be yourself. That is always the right way to act during a deposition, or during trial.
- Make sure you understand the question before you answer. Do not answer a vague question. Wait until the question is fully asked before you answer. Stop. Pause. Think before you answer. Do not let yourself get too conversational and just start talking without thinking first. You may slip up and make it look, on the written record anyway, that you said something you did not mean to say.
- If you get confused, or think you made a mistake, ask to speak to me and we will straighten out the matter right there. It looks fine for you to correct something you said on the day it was done.
- Watch out for the other attorney paraphrasing you. Examples are things like “Let me see if I have this right” or “correct me if I am wrong.” If that happens, listen very carefully to every detail he or she repeats and make sure the complete statement is correct. If not, you must correct them. Do not just agree because their paraphrasing was mostly correct.
- Do not exaggerate your injuries or you pain. Juries hate that. It will hurt your case, not help it. Just be careful to say what is absolutely true. Do not say your back hurts “all the time” if it really only hurts “some of the time.” Do not claim you “can’t” do something if you really can do it, but with pain or limitation. Avoid superlatives (can’t, never, always) unless they are accurate. Think about the real impact of your injuries ahead of time and you will be ready to answer these questions when asked.
- Prior injuries: be honest about any prior injuries or pains. Think now about your past medical history, all injuries you have ever had, and any aches and pains in your injured body parts before this accident. Be ready to testify about them.
- Do not try to be a doctor. Do not diagnose yourself or paraphrase your doctor. His or her medical records will speak for themselves.
- Relax! This is not that hard and not that scary. You do not have to be perfect. You do not have to remember everything. Nobody expects that. Remember, a jury will be judging you. They will understand that people make mistakes. They won’t expect you to be perfect in your deposition.
To do well in a deposition, you just have to be prepared and do your best. If you do that, and you are honest, everything will work out perfectly fine.
Again, we will have a meeting to discuss your case before you deposition. But reading and re-reading this post will help you get ready for it. As always, call me if you have any questions.
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