The Plaintiff’s Deposition: Tips For Witnesses In Injury Cases

The plaintiff’s deposition is always a significant day in the prosecution of a personal injury case.  It is just one step in the litigation process.   It only happens if your injury claim cannot be settled and a lawsuit is filed.  In that situation there many things that happen.  But, both later settlement negotiations and any eventual trial may result in disaster unless that deposition goes well.

Good attorneys take the time to prepare their clients for the strange world that is the deposition room.   For someone who has not been through it before a deposition can be an odd and slightly scary experience.  But rest assured, anyone can get prepared to do a good job at it and be ready.

Getting Ready: Your Lawsuit, Your Plaintiff’s Deposition

Over the years, I have sat down with hundreds of clients to get them ready for their deposition.   Every case has its specifics, and those specifics need to be part of what you and your lawyer talk about in getting ready.  But there is also what I call the “basic tool chest” of deposition skills.

Probably 80 to 90% of what I discuss with clients in preparation for their deposition in various cases is the same regardless of the case.   You cannot lose site of the fact that a central part of any case is in its specific details.  In every case, the facts of the underlying incident guide that essential last 10 to 20% of advice and counsel.  However, there is common ground that is covered by almost every bad guy’s lawyer during a deposition.  Thus, deposition preparation lends itself to a generalized tips and advice.

Without doubt, the advice here is a bit generic. There may be times where the lawyer on the case, who has more knowledge about a specific case, thinks a different approach should be taken.  A good attorney will always take the time to prepare a client the way that lawyer believes the particular client should be prepared under the circumstances.  Some clients and cases require more than just a little discussion.  There are clients that are better served with multiple practice sessions to get comfortable with the process.

What Is A Deposition Anyway?

A plaintiff’s deposition is an interview involving questions asked by the lawyer for the other side of the case to which you give sworn answers.   During the deposition everything that is said, the questions and answers and comments, are being transcribed by a court reporter.  Because it is under oath, at the later trial if you try to change the answers you gave during a deposition, the lawyer can use those contradictions in court to suggest you are lying or untrustworthy.

Who Will Be There At My Plaintiff’s Deposition?

Your lawyer will be there with you.  The court reporter will be there as will the bad guy’s lawyer. That is who will  ask the questions.  Sometimes the representative of the insurance company (the adjuster) will be there. And sometimes the bad guy himself is there as well.

The presence of any of these people should not change anything for you.  You do need to understand that in addition to getting your sworn answers “on the record” the opposing attorney or others who are there, will be evaluating you in other ways.  Your demeanor, appearance and veracity will all be judged to one degree or another. These are more subtle things that can count in the settlement negotiations prior to trial.

 What Will I Be Asked In My Deposition?

First, there are some unsurprising topics.

Certainly, the central issues of your case are a prime area for questioning.  For example, in an auto accident case, you will be asked about how the accident happened. Things like: what did you see at the scene? where were you going? what did you do? what do you remember happening?  These are questions that get to the details of your memory of the event at issue.

Similarly, you will be asked about matters like the nature of the injuries, what medical care you sought and how the injuries impacted your life.

Second, there are topics that regularly surprise clients.

Generally speaking everything is fair game for questions.   It does not have to be “relevant” to the case.  The surprising things that get asked about are things like, your family and living arrangements, your employment, marital status, old bosses and ex-spouses, past medical history including unrelated injuries, where you grew up, the names of friends, sports you play now and in the past.  Pretty much anything the bad guy’s lawyer chooses to ask you, the litigation rules let them get away with.

You will likely be asked about any prior workers’ compensation claims, or lawsuit of any kind even whether you ever filed prior insurance claims for anything.  There are dozens and dozens of such topics that some lawyers ask about.  I’ve even had a lawyer ask questions about a 50 year old client’s grade school experiences.

Why Does the Bad Guy’s Lawyer Ask Those “Irrelevant” Questions in a Deposition?

To understand why you get those questions you have to understand the lawyer’s goal.  She is looking for anything he can use against you.  It is a sort of “fishing expedition” for the defense attorney.  She is looking for something either sinister about you or to get you to be less than forthcoming so she can question your honesty at trial.

One aspect of trials is that they are, in part, morality plays about good and evil.  Thus, the defense lawyer will use any fact she can, no matter how small or seemingly irrelevant, to try and show that an injured person is the bad guy and thus “should” lose.

The process can, quite frankly, be annoying.  But the rules allow for deposition questions to stray into nearly unlimited topics as long as the answers are “reasonably calculated to lead to admissible evidence.”

How Should A Plaintiff Get Ready For A Deposition?

In a phrase (and of course the Boy Scout’s motto): be prepared.

The Basics of Being Prepared:

There are some basic rules that apply to every deposition.  Here is a basic outline of those rules.

1. Tell The Truth:

This means, of course, don’t lie but it means a lot more too.

No matter how good, or bad, your case is in the abstract, a lying plaintiff simply starts the funeral march towards an unfavorable result at trial.  Most cases don’t go to trial, but one way to increase the odds of your case being one that does  is doing a bad job at your deposition.

•  Talk about specifics ahead of time with your lawyer

All cases have “uncomfortable testimony,” be it on facts of the incident, or something to do with the claimed damages or on the personal issues the other lawyer asks about.  These are often areas where the specifics of your case need to be worked through with your lawyer ahead of the deposition.  You want to be sure the testimony comes out smoothly, honestly and is placed in the appropriate context.  Don’t try to hide or run away from troublesome facts,  let your lawyer deal with them.

•  Don’t Guess

If you guess at an answer you simply cannot be telling the truth in response to the question. To ensure the “whole truth” don’t guess or add information you don’t know or weren’t asked about.

This is the essential difference between depositions and normal conversations among ordinary people. In normal conversations we naturally fill in holes in the story with certain assumptions and guesses. It is not lying, it normal.   In deposition, it can be deadly to your case.

•  Be sure you heard and understood the question

Lawyers are remarkably capable of asking questions which make absolutely no sense whatsoever. Whether unclear, vague, ambiguous, compound or what have you, all lawyers who take depositions have done it and we will all do it again.   If you don’t understand a question: Don’t Answer It.   You can always ask for a question to be repeated or clarified.

•  “Always” avoid absolutes

The use of absolutes to answer a question such as “always” and “never” will frequently cause problems.  For example, any question designed to get you to make absolute statements like “I’ve never in my life suffered a headache before this crash,” is almost always a trap.  It is painful to recall how many times I’ve heard a client lulled into making such a sweeping comment.

Often the client’s real point (i.e. the truth”)  is, “other than normal aches and pains”, I’ve never had a problem.  For example:

“If you are asking if I ever had a neck pain before this accident, I’m sure like everyone, I’ve had a stiff neck. But I’ve not gotten any treatment before that I remember.”

This answer protects you from defense counsel digging up a record 10 years ago when you suffered the flu, had aches and pains including in your neck, and suddenly the testimony comment about NEVER suffering any neck pain, looks deceptive.

You cannot forget a primary reason of nearly every deposition for the bad guy’s attorney is to make you look like you are lying.  Absolute comments are almost always a problem.

• Leave the door open

One standard defense lawyer tactics is to try to get you to make a mistake by asking a question in absolute terms, i.e., “Tell me everything,” “That’s all the problems you’ve had?”, etc.    Be prepared to answer with the truth, which is usually, “That’s all I remember right now,” or “I’m sure there’s more, but that’s all I recall at this time.”

It is the rare client who can remember everything while having his deposition taken. What the lawyer wants to do is “box-in” the plaintiff and limit your ability to tell the jury the whole truth.

•  Be comfortable with the technical truth.

Only lawyers can make telling the truth so hard….. But, seriously, don’t be uncomfortable with the truth even when it is “I don’t know” or “I just don’t remember right now.”   Often the truth of your memory is, “I am not 100% sure but I think ….”

2. Answer The Question

The Golden Rule of a deposition, no matter who you are or the subject matter of your lawsuit is answer the question.  Again though, there is more to it.

• Answer the Question, the Whole Question, and Nothing But the Question

It is important to set aside some of the social norms that govern behavior during your deposition. That does not mean be rude, it means be careful.

The goal of the deposition is not to tell your whole story.  It is just to answer the bad guy’s lawyer’s questions.  You have to listen carefully to the question and then answer only that question. The basic rule is DO NOT VOLUNTEER ANYTHING.

If a question can be answered “yes,” “no,” or “I don’t know,” fairly and truthfully, then answer the question that way. And then shut up.

If the defense lawyer wants more information, she can ask more questions. People have a natural tendency to fill in and anticipate questions.  Acting that way in a deposition will only lead to problems and a longer deposition

This does not mean to make every answer into one word answers. Sometimes answering the question requires a sentence or even a couple of sentences. Answer the question you have been asked – and then shut up. Seriously, shut up. What you say is being recorded in black and white, don’t make jokes, don’t engage in banter, don’t try to answer the next question, just sit quietly.

• An exception

Rules have exceptions, one area that is often an exception to this rule of Don’t Volunteer is in discussing how the injury has impacted your life.  That is when the questions get to the damages part of your case.   I have often had clients who have a hard time articulating all the impacts on their life of the injuries they have incurred at the hands of the defendant. It is important to spend time with your lawyer identifying concrete examples of the impact the injuries have had on your life.   This should be part of your preparation for the deposition.  The defendant may make an inaccurate evaluation of the case if you are not able to fully explain those impacts.

3. Respond Consistently

You will likely have been asked to provide written answer to questions prior to your deposition.  Your responses to deposition questions need to be consistent with the answers in written discovery.  And consistent with what you told the police for their report or the doctor who was treating you.

For example, describe your injuries to the same parts of your body as you described them when you saw the doctor. A deposition is an unfortunate time to talk about a knee injury that no doctor noted you had.

The bad guy’s lawyer loves it when your deposition answers are inconsistent with how your past recitation of the events is reported.  At trial, that lawyer will suggest to the jury that every inconsistency in your story is actually a lie.  And they do this because it works to undermine your claim.

4. Numbers Are Bad 

This is a subset of don’t guess or assume.  Human beings don’t do numbers very well.   Time, distance, speed, amount there is nothing that client’s get wrong more often and get made to look like liars because of  things related to numbers.

How far away was the other car when you first saw it?  How long did you wait at the light?  How far did your car lunge forward?  How much distance was left between their bumper and yours? How long were you unconscious for?

Even though you might feel like you SHOULD know.  The reality is you probably don’t. So–DON’T GUESS at anything. If you find yourself ready to pop off with your best estimate, instead simply tell him “I would have to guess and I not comfortable with that.”  That is your answer and the attorney will have to move on.

5. It Is Not A Fight

Your job is to answer questions. Your job is not to confront the lawyer. It is not  to be combative or argumentative.  Usually we don’t have these problems in Idaho depositions. But, if arguing has to occur, let your attorney do it. That’s why you hired him or her.  Just be patient, responsive, and candid.  Your role is to answer questions until there are no more questions to answer.

6. Your Deposition IS NOT The Time To Tell Your Story

If the lawyer asks you a question, answer it.  If the lawyer never asks about something, don’t worry about it. Your lawyer will help you tell your story at the appropriate time.  Your job at the deposition is just to answer the questions.

Sometimes a lawyer will pretend that they have some confusion about the case and need clarification. It’s an act. They do that in the hopes that you will drop your guard in an effort to help them understand. They want you to just start talking.  Getting you comfortable with talking is the first step to you saying something stupid that they can use against you.

Never forget, the defense lawyer is not confused.  The defense lawyer is not your friend.

7. You Can’t Win Your Case In A Deposition

Some clients convince themselves that, despite what I tell them, if they are extra accommodating to the defense attorney or use the exact right word during their deposition the defense attorney will get the insurance company to pull out its checkbook write a fair settlement check. I have never seen it happen.

A deposition is a place where if you are not careful you can lose your case, but you cannot really win it there.  If you hunker down, follow the basic rules and your lawyer’s advice and don’t let down your guard until the deposition is over, then you will have the best outcome you can expect.

Having Your Deposition Taken Is Work

Having your deposition taken will most likely be a new experience.   At the end of your deposition, if you follow the rules I’ve given you should feel tired and feel like you worked hard.  Oftentimes I have had clients tell me, even though they don’t want to do it again, it was an interesting, if not enjoyable, experience.

Raise Your Concerns And Worries

Lawyers often lose sight of the fact that the client has never been through a deposition before.  While the lawyers may not have any worries, you might.  Do not be afraid to discuss the things that concern you.  You will have the chance to either learn why it is not an issue of concern, or to work on the issue so you are prepared to offer an honest non-harmful answer