If you search our library of past blog posts, you will find that we have already written articles that discussasp depositions. I will not re-plow old ground because my past articles provided basic information about depositions. This article, however, is intended to serve as advanced training for those interested in excelling during their deposition. In fact, this article is completely unnecessary reading for those simply looking to do well at their depositions. This article is for "Type A" personalities--front-row, hand-raising clients who want to do more than "do well," but instead, excel during their deposition. If you are that type of client, this article IS required reading.
The number one thing you need to do to excel in your deposition is to do your homework. Why are you the successful person you are today? Why are you way ahead in life compared to your buddies from high school? The answer is that you worked hard, studied hard, and applied yourself when it counted. The same principle applies to excelling in depositions because if you want to excel in your deposition, you are going to need to start preparing weeks beforehand. To ensure deposition excellence, there are seven tasks you must complete. Five of those tasks are homework-related and two are game-day related.
A. HOMEWORK FOR EXCELLENCE:
1) Read Your Medical Records—All of Them
The number one reason clients do poorly in depositions is because they do not know what their doctors have written about them and their injuries in medical records. Before your deposition, the insurance company's lawyer will review your medical records from the past 10 years of your life. Frankly, defense counsel will at least read a summary of every page of your medical records. Consequently, the only way to prepare for your deposition and to have confidence in your answers is to have the same base of knowledge that the defense lawyer has.
Since we have all of your medical records (and sometimes even more records than defense counsel), our office can help you with this task. We summarize all of your medical records to make them easier to digest. If you want a copy of your medical records or the summary of your records, you can ask our staff to make a physical copy, or we can send it to you by email.
Most of our clients will not review their medical records before the deposition and will not devote the time to achieve deposition excellence because doing well is good enough for them. As a result, our staff will not force clients to prepare for their depositions weeks in advance by reviewing medical records. However, we are happy to produce these documents to any client upon request. To excel during your deposition, you need to read all of your medical records and our summary in their entirety.
2) Study Your Tax Returns
Clients often struggle in depositions when they are pressed by defense counsel with questions about prior employment and income. These issues come up when you claim that an injury caused you to miss work and lose wages.
To achieve excellence in your deposition, you need to read every page of your tax returns from the past 5 years. Again, defense counsel will know your tax returns, so you should know them as well. The only way that the defense lawyer will have your tax returns is if we produced it to them. Accordingly, upon request, my staff would be happy to give you exactly what we sent defense counsel so that you can prepare to excel at your deposition.
3) Review Every Document Regarding Your Prior Employment
When an injury victim is claiming wage loss, his/her past work history becomes very relevant. The defense lawyer will ask for the names of your past employers and supervisors. Additionally, he will ask for the start date, departure date, and the reason for leaving every job you have had for at least the last 10 years. Being accurate about these details leads to excellence.
We may or may not have your employer's personnel files by the time of your deposition. However, simply asking for what we have is a great start. But you may have to fill in the gaps with some leg work. Calling old employers and previous co-workers are all great ways to refresh your memory about the details of your previous employment. In a deposition, being a little inaccurate about a start date or forgetting a brief employment somewhere is not usually fatal. But inaccurately recalling pertinent facts about your prior employment is fatal.
For example, if you were fired from a past job, being accurate when asked about the details surrounding that termination is going to score you points with defense counsel. By contrast, lying about the reason you left the company (i.e. saying you left the job to explore other opportunities), when records say you were terminated for cause tanks your credibility. So, before your deposition, do a little research to fill in the details of your last ten years of employment, and look at every employment record you can find.
4) Talk To Your Boss, Friends and Neighbors
A few weeks before your deposition, you should take the time to reconnect with people in your life. Talk to your boss, your friends, and neighbors about your upcoming deposition. Remind them about your accident and the injuries that you sustained. Let them know that their names may be mentioned during the deposition. It's important that if the defense lawyer calls your boss after your deposition and asks if he has had to accommodate your work schedule due to doctors' appointments that your boss verifies this to be true. It's important that your neighbors remember that you don't cut your own grass anymore due to your injuries. And it's important for these people to realize that they may be contacted by defense counsel to verify the information you give during your deposition. If you used to be on a softball league, be ready to give player names and phone numbers. Being able to easily recall this information shows the defense lawyer that you are not fabricating the effects your injury has had on your life.
5) Make Lists
During the deposition of a personal injury case, there will always be a series of questions about how the injury has affected your life, and specifically, the activities/hobbies that you don't do anymore or are more difficult to do because of pain/limitations from the injury. A person looking to excel in their deposition should prepare lists for each of these categories. You don't get to read from lists during your deposition. However, if you write out 30 things, it's a fair bet that you may remember 20 things from that list even if you are nervous. Being able to give detail about these life limitations really adds value to your case.
To excel, you should start writing your lists a week or more before your deposition, review them daily until the deposition, and continue to add new things to the list as you continue to study.
B. GAME-DAY EXCELLENCE:
6) Tell The Truth—Even When it Hurts
If you were once fired, have a shoplifting conviction, or were treated in the past for a similar injury, this is the time to make sure you tell the whole truth. I once had a great client who excelled in every part of her deposition, except when it came to the information in her resume. Earlier, she had claimed to have a Master's degree. It turned out that she completely made that up. In her deposition, when asked if she had a Master's degree, she lied and said she did. The defense lawyer then produced a letter from the school showing she had never attended. When a plaintiff lies about anything, it calls into question his or her truthfulness and credibility. A jury can forgive many things, even past indiscretions. However, they do not forgive a plaintiff that lies.
Prior to your deposition, you will have a face-to-face preparation session with your attorney. This is an excellent time to talk about these issues. Telling the truth, even if it hurts, is the best way to assure excellence.
7) No Matter How Tragic Your Story, Be Optimistic
People, especially insurance defense lawyers, hate whiners and like optimists. If your ongoing injury is to your back, it is a great strategy to be optimistic about your overall health by making sure the defense lawyer knows that your neck and shoulder pain has subsided and that you are back to "100%" in those areas. There are lots of reasons why that is a good thing to do and we will gladly explain the social science behind why you should be optimistic in your deposition.
For one, it lends even more credibility to your ongoing complaints. Also, even though your deposition is about injury, and might include issues like ongoing pain, job loss, and other depressing topics, try to put a positive spin on the story. Around the office, we say it is best to "make lemonade out of lemons." A good way to do this is to say: "my doctors have told me that this is going to be a long, hard fight to gain back my physical health. While they doubt after all this time that I can do it, I'm a fighter, and I refuse to give up." That is an excellent example of emphasizing the problems, but also expressing your "never say die" outlook. Juries like people who try to "pick themselves up by their own bootstraps."
To excel in your deposition, you must do your homework, be a good historian, be detailed and specific about injuries and limitations, and be truthful and likable. There is no secret ingredient to excelling in a deposition. It simply takes preparation and hard work.
At ANDERSON, HEMMAT & McQUINN, we know that having your deposition taken can be nerve-wracking. Because we have so much experience with taking and defending depositions, we can prepare you for the experience. But any lawyer can only do so much. By following the advice above, you can ensure the deposition process reveals what it should—the truth about your injuries and their effect on your life.