Your Deposition – What to Expect
Your deposition can go a long way in assisting us in handling your case either by way of settlement or at trial. What YOU do at the deposition can help you or hurt you, depending upon your attitude, truthfulness and appearance. It is also particularly true that if you make a damaging statement at a deposition, it can be used as an admission against you. In some cases, a damaging admission given during a deposition can put an end to chances of success in a case. Such mistakes can include: exaggeration of damages, failing to disclose pre-existing medical conditions which relate to damages being claimed, giving nonsensical or exaggerated liability testimony, contradicting prior statements, and giving testimony contrary to common sense, and undisputed facts.
What is a Discovery Deposition?
Under the Rules of Civil Procedure, each side in a lawsuit has the right to take the discovery deposition of the opposing party. In its simplest form a discovery deposition is the oral testimony of a witness taken under oath before trial and at which time most of the objections available at trial do not apply. The standard for what can be asked is quite broad; the lawyer can inquire about anything which might be relevant to the claims or defenses at issue in the case.
You will be under oath, just as you would be in court. The lawyer’s questions and your answers will be taken down by a court reporter. After the deposition is over, the reporter will type the questions and answers, and all parties will receive copies. The original deposition is kept by the party noticing the deposition – in your case, by the insurance defense lawyer. You will be provided with a copy after it is typed and you will have an opportunity to check it for any errors. You will then be asked to sign your deposition if you make any changes to it. We will assist you with this process following your deposition.
A discovery deposition is used: to pick the mind of the witness of all the facts which he or she may have in his/her possession which will assist the lawyers in the preparation and trial of the lawsuit; (2) to obtain ammunition for impeachment on cross examination; (3) for the opposing party’s lawyer to meet you, to evaluate your credibility, and how you will appear to a jury; and, (4) to assist the opposing party’s lawyer in determining the settlement value of the case.
As your lawyer, I will only be able to object to the form of the other lawyer’s questions. I will not be able to object to coach you, or protect you from a question which might be harmful to your case. If a question calls for information that is protected by privilege, I may object and instruct you not to answer. However, these objections are very rare, as most lawyers know to avoid questions which call for privileged information. Overall, you should not look to me to “help” you with any question – just remain calm and answer honestly, and in the most direct and concise manner possible. If you don’t understand the question, simply ask that the lawyer rephrase it. Remember that it is in everyone’s best interest for the witness to understand the question, so that the witness doesn’t get to trial and change their testimony on the basis that they didn’t understand the lawyer’s question during the original deposition. So don’t feel badly about asking that the lawyer rephrase his question.
If your case goes to trial, your deposition can be used at the trial in cross-examination by the other lawyers if your testimony at trial differs from your testimony at the time of the deposition. So, as a simple example, if a witness to a car accident case were to testify in her deposition that “the light was red,” but then testify at trial that “the light was green,” the defendant’s lawyers would be able to use her deposition to cross-examine her and to point out the difference in the testimony to the jury as a means to challenge the credibility of the witness.
The attorney for the defendant will get all possible information in completing her investigation and preparation for trial. She will commit you, under oath, to all of the facts about your side of the case and the nature and extent of your damages, so that you cannot say anything different at trial without being subject to impeachment with this deposition on cross-examination.
It is extremely important, therefore, that you have everything in mind about the case at the time of the deposition. We will review the case with you before the deposition, but it is helpful if you refresh your recollection before you meet with us.
Who Will Be at My Deposition?
There will be no judge or jury present. I will be present. A court reporter will also be in attendance. He or she will transcribe the deposition. A videographer will be present to record your deposition.
The defense attorney should be courteous and respectful of you. That being said, do not engage her in an argument over irrelevant facts, as it will get you nowhere. Remember that the purpose of your deposition is for you to make a record of your story and your recollection regarding important issues – the purpose is not to prove your case to the attorney or to convince her (or anyone else) that you are right and the defendant is wrong. Your only concern should be with telling your story in a clear, concise and consistent manner.
How Long Will My Deposition Last?
The rules of court dictate that a party’s deposition cannot last more than 7 (seven) hours. Typically, depositions take about 3 or 4 hours, but you should be prepared for your deposition taking the full 7 hours, just in case. However, you will be entitled to take a break at any time and for any reason.
What Should I Wear?
This will be opposing counsel’s first time meeting you, so it is important that you make a good impression. You should appear at the deposition dressed as you would expect to dress if you were actually going to Court to appear before a jury. Don’t worry about being too formal; business casual is a great choice.
How Should I Act During My Deposition
Treat all persons in the deposition room with respect. The defense lawyer should be treated with respect and courtesy, but be careful about getting too “chummy,” or joking excessively with the defense lawyer, court reporter or videographer. Consider this an important and solemn occasion. Be friendly and polite. Present a credible appearance.
Pointers on Giving Your Testimony:
- Tell the truth.
- Be prepared. Telling the truth is only half of the equation. Being prepared allows you to tell the truth in a way that helps your case.
- If you do not know an answer, or are uncertain, don’t be afraid to say so.
- Give verbal answers. Nods of the head, and colloquial statements including “um-hum,” Uh-uh,” are an opportunity for inaccuracy. Only respond by saying “Yes” or “No.”
- If you do not understand the question, ask that it be rephrased.
- Do not talk over the lawyer. Wait until the question is concluded.
- TAKE YOUR TIME AND LISTEN TO THE QUESTION. Only answer the question put to you; do not offer further explanation, stories, assumptions, long predicates to your answer, or gossip.
- Answer all questions directly, giving concise answers to the questions, and then STOP TALKING.
- Never lose your temper, or laugh at the question.
- Do not be afraid of the lawyers.
- Speak slowly and clearly.
- NEVER VOLUNTEER any information. Wait until the question is asked — answer it and STOP. If you can answer “yes” or “no”, do so and then STOP.
- Stick to the facts and testify to only that which you personally know.
- Tell the exact truth about your injuries or losses, do not minimize or exaggerate. Do not, however, minimize your injuries.
- Do not fight over details that are of no consequence. Testify only to “basic facts” and do not attempt to spin irrelevant facts.
- If you do not know, say so. Some witnesses think they should have an answer for every question asked. You cannot know all the facts and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted.
- Do not try to memorize your story. Justice requires only that a witness tell his or her story to the best of their ability.
- Keep relaxed, but alert to the questions as they are put to you.
Further Points on Answering Questions
We know that you would not deliberately state a falsehood, but it is important that you not be trapped into something that is not true. For this reason, listen to each question carefully and be sure that you understand it before answering. If you do not understand it, ask the questioner to repeat it or rephrase it so you do understand it. When you understand the question, answer it honestly and in a straightforward manner. If you do not know the answer, say that you do not know or do not recall, but do not let the other lawyer get you in the trap of answering question after question with “I don’t know.”
No one can remember every little detail, but the important things you will remember and you should give an honest and full answer to questions on these points.
The opposing lawyer will probably be friendly and will not “bully” you in any manner. However, the more she can get you to say, the more apt you are to put your “foot in your mouth.” An incorrect statement may lose the case. In a lawsuit, as in all other matters, honesty is the best policy. Telling the truth means more than just refraining from telling a deliberate falsehood; telling the truth requires that a witness testify accurately.
UNDERSTAND THE QUESTION before you attempt to give an answer. You can’t possibly give a truthful and accurate answer unless you understand the question. If you do not understand, ask the lawyer to repeat it. She will probably ask the court reporter to read it back. Keep a sharp lookout for questions with a double meaning and questions which assume that you testified to a fact when you have not done so.
TAKE YOUR TIME. Give the question such thought as it requires to understand it and formulate your answer and then give the answer. Do not give a snap answer without thinking. On the same token, while you need to listen and be cautious about answering important questions, don’t get so caught up or worried to the point where you are paralyzed from answering naturally – your credibility will be diminished if you over-analyze every single question, ask that even the most straightforward questions be rephrased, take long and awkward pauses before each answer, or otherwise act like you are too afraid of saying the “wrong thing.” If you just listen to the question, tell the truth, and tell it accurately, nobody can cross you up.
Do not volunteer information not called for by the question you are asked.
Do not look at me for help. You are on your own, except for protection from improper statements and harassment.
Do not argue with the lawyer on the other side. She has a right to question you. She has a right to ask questions which you think are stupid, or prying, or inappropriate. Do not suggest questions to ask, and do not be condescending to the lawyer. She will refuse to settle the case and take the case to trial, knowing that you will be condescending to the jury. Do not answer with a question unless the question you are asked is not clear.
Do not lose your temper, no matter how hard you are pressed. Lose your temper and you lose the case.
If asked whether you have talked to your lawyer, or if you have reviewed your medical records, or other statements admit it freely. This is perfectly proper. However, do not divulge the content of our conversations or correspondence.
GIVE A POSITIVE ANSWER when you can. Avoid such phrases as “I think,” “I believe,” “in my opinion” and “probably.”