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.