1. What is a Deposition in Personal Injury Cases?
If you make an accident claim, you will probably have to give a deposition at some point. It is extremely important to know how to give a deposition in personal injury cases.
First, a deposition is a statement taken from a party or a witness under oath in front of a court reporter. Any statements made in the deposition may be used in court. Depositions are one of the most important tools lawyers use to gather evidence and information about a personal injury case.
Quick Summary of How to Give a Personal Injury Deposition:
- Always Tell the Truth.
- Never Guess. If you don’t know the answer say, “I don’t know.”
- Remain Calm: Never Argue, Joke, or get Upset.
- Listen to the Question being Asked.
- Pause to Give your Lawyer a Chance to Object.
- Answer JUST that question.
- Then Stop Talking.
- Repeat Steps 1 through 7.
My name is Matt Powell, and as a Board Certified Civil Trial Lawyer, almost all of my clients in litigation will be required to give a deposition. However, I will usually take a deposition from the bad driver who caused damages and injuries to my client. Here is some basic information about how to give a deposition in personal injury cases.
Why does what I say matter?
In the deposition, there will be a court reporter who types every single word said by everyone during the deposition. Sometimes the deposition is videotaped by a videographer.
My client is asked a long series of questions by the insurance defense attorney representing the opposing party. In some cases, there are multiple lawyers and each will have their turn to ask questions. The testimony is typed and printed into a booklet by the court reporter.
Here’s the Deal: Tell the TRUTH
To help you prepare for your deposition, here are some things I always tell my clients. Rule number one: tell the TRUTH. This is the most basic rule and should never be taken lightly. Here are four additional steps that are also important to understand.
2. How to Give a Deposition in Personal Injury Cases in 4 Simple Steps
Steps 1 & 2: Listen and Pause
First, you should always LISTEN to the question being asked. Listen very carefully and then do the second most important thing: PAUSE. PAUSE before you answer. You need to pause for two reasons.
First, you want to make sure the attorney asks the entire questions. Wait for them to finish their entire question. This gives you an opportunity understand the question. It also gives your attorney an opportunity to make an objection to the question if it’s improper. So, do not answer any questions too quickly and pause before you answer.
Steps 3 & 4: Answer Just that Question and Stop Talking
After following these first two steps, then do step number three. ANSWER JUST THAT QUESTION. Do not answer any other question other than that one question. Do not go on a tangent and talk about things they didn’t ask you. Just answer that one question in as few words as possible.
Then go to step number four: STOP TALKING.
Seems easy enough, But Here’s the Catch:
Often times, steps three and four are the most difficult part of the deposition. It’s because people want to explain all sorts of things in their answer. Most of the time an explanation is not requested or needed. Remember, if an explanation is needed, the attorney will ask for it. Or, at the end of the deposition, YOUR attorney may ask you to explain something further.
So, the four steps are: listen to the whole question, then pause, answer JUST that question, and finally, STOP TALKING. By following these steps, you will navigate through an entire deposition easily. A good analogy of a deposition is a baseball game. When your team is in the outfield, it doesn’t matter how good you are baseball because you cannot score a run. In the outfield, it’s not your turn to bat and score.
How your deposition is like baseball:
I tell my clients when you’re being deposed, it’s like being in the outfield. You don’t have the ball and you won’t be able to score a run. You are purely playing defense. This means you must listen to the questions and answer them without elaborating. There will be a time and place to elaborate on your answers. I will explain that and much more on how to give depositions in personal injury cases.
3. The 5 Basic Answers to Succeed in a Deposition
Now that you know the basic four steps on how to give a deposition in personal injury cases, next learn what are appropriate answers. There are really just five basic answers that lead to a successful deposition.
- Yes, Sir/Ma’am
- No, Sir/Ma’am
- I don’t know/remember
- I don’t fully understand your question
- May I take a break?
These answers may seem too simple. But remember the old saying “Keep It Simple?” It really applies here. If you know the answer is yes or no, then answer it that way. However, if you don’t know the answer to a question, the WORST thing you can do is guess.
Why is guessing the WORST thing you can do?
The problem with guessing in a deposition is if you guess wrong, it might be interpreted as a false statement or a lie. Guessing wrong can cast doubt on your credibility if presented in front of a jury. So, if you’re not 100% certain of your answer, tell the attorney you don’t know or remember. If you 100% know the answer, give the answer.
Also, if you don’t understand a question, or it seems complex, ask the attorney to rephrase the question. When your testimony is typed up into a booklet, the question will be very clear and your answer will be very clear. So, if you didn’t fully understand the question and guessed, then your answer may not be as accurate as you meant.
The best part? You set the pace of the deposition.
Remember to take your time and don’t be rushed. As a witness, you can set the pace of the deposition. Do this by listening to the question carefully, pausing, and then answering when YOU are ready. Also, you are allowed to take breaks if and when you need them. A deposition is not an endurance test. Knowing how to give a deposition in a personal injury case will help you.
6. The 3 Phases of Personal Injury Depositions
Phase One: Life Before the Accident
Typically most depositions come in three phases. Phase one will be about your life BEFORE the accident or event that caused your injury. The defense lawyer will ask all types of background questions: places where you worked, lived, went to school, previous medical history, previous treating doctors, crime convictions, drug/alcohol rehabilitation, divorced, alias names, tax returns, and lots of other things.
They will certainly ask if you have ever made any other claims for personal injury or worker’s compensation. They will ask you to list all prior injuries or hospitalizations. Also, they may ask if you have ever been a victim of domestic violence. Or if you have ever sued or been sued.
They will ask you to explain how you selected the doctors you have seen for this case. They may also ask if you have gone on any vacations or trips since the accident. In this background phase of your deposition, try to answer the questions without much elaboration. Keep it simple and straightforward.
Phase Two: Facts About the Accident/Event that Caused Injuries
Phase two of the deposition is typically about the FACTS of the accident or the event that caused your injury. In some cases, such as a rear-end motor vehicle crash, the facts may speak for themselves. You won’t have much to explain since you were looking out the windshield and never saw the car hit you before impact.
In this situation, your answers will be short and simple. However, in other more complex cases liability may be contested. Your version of how the accident happened may be critical to protecting your claim.
Why does my version of the accident matter so much?
In a contested litigation accident, if you don’t know how the accident happened, you may not be able to refute the defendant’s version. You should discuss this type of information with your attorney. So you are able to easily explain the facts of your accident as you know them. Often times, attorneys will try and set a trap. They try to make you estimate or take guesses.
If you are able to accurately estimate those things, then please do. But, if you don’t know, do not guess. Make sure you and your attorney go over the details of how the accident happened. That way you are confident at explaining what happened.
Phase Three: Life After the Accident
The third phase of the deposition is about life AFTER the accident. This is where they ask questions about how this accident has affected your life. They will ask what injuries you have sustained. How this has affected your ability to work, or how might it affect your ability to work in the future. In this third phase of your deposition, elaborate and thoroughly explain how the accident has affected your life.
7. Objections During Personal Injury Depositions
You may wonder why your attorney isn’t objecting to things such as the relevance of the questions asked. While it’s a little bit frustrating, know that if lawyers objected to all the things they could object to in a trial, depositions would take days or weeks, rather than a few hours. There is a rule of law that says lawyers can only object to a few things in a deposition.
Why are objections during depositions so important?
The first is, your lawyer should object to any question that would violate or infringe upon your constitutional right of not incriminating yourself. We have all heard politicians assert their Fifth Amendment privilege against self-incrimination. If and when your attorney makes any objection, it is best to stop speaking immediately.
Then listen carefully to your attorney and follow your attorney’s instructions and advice.
Another common area of objections is for violating the attorney/client privilege. In other words, if the attorney is essentially asking you what you and your attorney have discussed, that is privileged information. Your attorney should object and say it’s privileged communication and instruct you not to answer that question.
What are Objections to Form?
There is another objection called objecting to the FORM of the question. Your attorney may object to the form of the question being asked by the other lawyer. If your attorney objects to the form of the question, it is best to stop talking. Then, listen to your attorney carefully. They will probably tell you it’s okay for you to answer the question.
There may be a technical aspect of the question meaning it might be misleading. Your attorney uses this objection to point it out for the record, which could be important in a trial.
If your lawyer makes a FORM objection and you understand the question, answer it. If for any reason you do not understand the question, please tell the other lawyer you don’t understand the question.
8. More Tips on How to Give a Deposition in Personal Injury
Here are a few additional tips on how to give a deposition in personal injury cases.
Don’t Ever Argue with the other Lawyer
Do not ever argue with the other lawyer. If the deposition becomes unpleasant, it is your attorney’s job to protect you. You should not have to fight for yourself.
Don’t Joke or Get Upset
Avoid any attempt at a joke or sarcasm. This rarely reads well in a transcript and it will make you look bad. Also, every witness can make a mistake in their deposition. Do not become upset if you make a mistake. Once you realize you made a mistake, you should tell the opposing attorney you made a mistake and would like to correct and/or clarify something you said earlier.
Don’t Produce Any Documents
If you are asked to produce a document, such as your diary, journal, notes, driver’s license, health insurance card, wallet or purse, do not agree to show or give it. Then ask that they speak with your attorney.
Always Let the Other Lawyer Finish Speaking
If you are interrupted by the other lawyer, stop talking. Let the lawyer finish speaking. Then courteously state you were interrupted and did not finish answering the previous question.
Some lawyers will ask the same question over and over again, but just slightly differently. Usually, they are hoping you will change your answer. If this happens, politely remind them you answered that question before and your answer is the same.
Insurance Defense Lawyers are Not Your Friends
Remember the opposing lawyer is NOT YOUR FRIEND. This is NOT a friendly, casual conversation. This is an interrogation. They may think you don’t know how to give a deposition in personal injury cases and take advantage of you. The other lawyer has a job to do, it’s to find holes and weaknesses in your case.
If they don’t seem to understand something, it’s NOT your job to help them. You have the right to make them ask the right questions. If they can’t or don’t ask the right questions, you do not have to help them.
Depositions are Not Memory Tests
One last tip, a deposition is not a memory test. If you need notes to keep track of important things, you can use notes. However, whatever you refer to in the deposition will be examined by the lawyers and marked as an exhibit to your deposition.
These are just a few of the basic guidelines to help you understand the process of a deposition. The preparation for a deposition can be a few hours or sometimes days. If you have any more questions about how to give a deposition in personal injury cases, please call me, Matt Powell, at 813-222-2222.