If you are reading this, and you are one of my personal injury clients, 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. But you will be much better prepared for your deposition if you think about these items now.
Please read this over now, and re-read it the night before your deposition. 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 something that occurs in almost every personal injury case that is litigated. You will be asked questions relevant to the case so the opposing attorney knows in advance what you will say at trial.
The opposing attorney can ask you a wide range of questions. He or she can ask anything that is relevant to the case – or is calculated to lead to the discovery of relevant information. That doesn’t leave out many topics.
You should be prepared to talk about almost anything. Here are the topics most often covered:
- General questions about who you are, where you have been in life, your job, your family, etc.
- Questions about any crimes you have ever been convicted of. This is relevant because they can ask you about certain crimes at trial to make you look bad. If you have any past criminal history you should call me to discuss it now.
- Your past medical history going back at least 10 years, and longer than that if it is something relevant (like a childhood accident involving the same body part involved in our case).
- Everything leading up to the accident.
- The most minute details of the accident.
- Everything that happened after the accident.
- Your medical treatment since the accident.
- Your pain after the accident and any harms you have suffered because of it.
- Your economic losses from the accident such as lost wages or out of pocket expenses.
Keep in mind that your deposition is testimony under oath and can be used at trial. So you should treat the deposition just like testifying at trial. It is very important to remember how important this is. It is not just a speed bump to get over on your way to trial.
The Deposition Process
Your deposition will likely happen in my office.
Most depositions in personal injury cases last 1-2 hours. Be prepared to be here that long.
The deposition can possibly take a LOT longer than that if opposing counsel is long winded or slow. They are usually getting paid by the hour so they don’t have much incentive to move fast! Long depositions are rare in personal injury cases. But just in case, don’t make other plans afterwards.
You will not be there alone. We will be present during your deposition. We will make sure the deposition rules are followed, make objections if necessary, and make sure everything goes smoothly.
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.
The court reporter will swear you in, some brief explanations of the process will be made, and then the questions will start.
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 anything on that list above, but especially (a) the accident, (b) your injuries, losses, and medical treatment related to the accident, and (c) your prior medical history. Those are the most important topics.
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? What happened?
Besides generally thinking about those issues, please also review these specific items:
- Your Answers to Interrogatories. If you don’t have a copy, call my office and we will get you one. Or email me and I will send you a copy by email.
- Any notes you made after the accident.
- Any photos of the scene, the cars, or your injuries.
- Any logs or diaries that you kept during your recovery.
Consider this homework. (But unlike me in high school, please actually do your homework!)
Be yourself! I know that is the easiest thing to say and the hardest thing to do sometimes. But it is what you should do in your deposition.
I want you to be pleasant and likable during your deposition. I want you to appear the same way you will appear in front of the jury.
Many people mistakenly think a deposition is adversarial and antagonistic. 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 judge your appeal to a jury. They cannot do that if they cross examine you the same way they will at trial.
That surprises many of my clients. The result can be that they become too talkative. That is exactly what opposing counsel wants!
So don’t cross the line and get too friendly with opposing counsel. We are not at a cocktail party!
Remember that this is a game of sorts, and you are being judged. Do not ever forget you are “on” at all times. And everything is being transcribed.
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 little 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 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. Don’t guess. 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. Be honest. Be yourself. That is always the right way to act during a deposition, and during trial.
- Make sure you understand the question before you answer. Do not answer a vague question. Ask the attorney to repeat it or rephrase it. Wait until the question is fully asked before you answer. Stop. Pause. Think before you answer.
- 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 is 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. 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 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.
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 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, do your best, and be honest. If you do that, 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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