Sep 24, 2010

There is no substitute for the individual advice and counsel of your own attorney. This article should be generally considered as sound tips but should in no way be considered either legal advice or a substitute for your own lawyer's counsel in this regard.

Hundreds of times a year for the last 20 years of practice, I have had occasion to sit down with my client and spend some time preparing an injury client for his or her deposition. In looking back at my career, I have prepared no fewer than 2,000, and maybe as many as 4,000, people for their deposition.

I am convinced that 90% of what I tell my clients in preparation for their deposition is the same advice, regardless of the case. Like my disclaimer above, the real meat and potatoes of your case is in the details. In each case, the facts of the specific incident lend themselves to the important 10% of advice and counsel unique to the particulars of that case. However, because there is so much common ground that is plowed through during a deposition, the preparation for that event lends itself to a certain amount of general tips and advice that I utilize over and over again.

Every attorney prepares their client differently. If you have not received this precise advice from your attorney in preparing you, it is perhaps because of the particulars of your case. Every good attorney will take the time to prepare their client the way they feel the client should be prepared. If something you read here is contradictory to what you think your attorney told you, you should follow your lawyer's advice, until such time as you find there to be a good reason not to. However, at the risk of stepping on other attorney's toes, I'm going to provide in this article the crux of my common pre-deposition prep talk with my clients.

1) I don't really think a client will grasp what is happening and therefore will have a tough time knowing how to react without understanding exactly what is going on. So I like to start with the very basics. Even when I have represented very well-educated people, I always start with the basics.

First of all, what is a deposition? Until I went to law school, I have to confess, I didn't know what one was. So if you don't exactly know what a deposition is, that's okay, I'm sure you are in the vast majority.

A deposition is an oral conversation involving questions posed by the lawyer in opposition to you or your case, with your answers being recorded as testimony. The questions and answers are being transcribed by a court reporter. Later, the deposition is submitted back to the parties and should anyone stray from the answers they gave during that deposition, the lawyer can use those contradictions in court to suggest untruthfulness on the part of the witness.

By way of illustration, say you were injured in a rear-end car accident. If your case becomes the basis of a lawsuit, (we lawyers who never want to make anything sound too simple say "proceeds into the litigation phase") at some point before the trial and probably before any meaningful settlement talks, the lawyers on both sides will get the opportunity to take depositions of each other's witnesses. Invariably, that means you will be questioned under oath about stuff, as will the guy who caused the accident. Also, other eye witnesses to the accident might have their deposition taken, your doctors might have their depositions taken, perhaps your boss, the cop at the scene, and maybe your friends and family.

What stuff gets discussed in a deposition? Well, not surprisingly, you will be asked about the issues of your case. In a car crash case, you will be asked about how the accident happened. Also, such things as what led up to the happening of the accident, where were you heading, and where you had just been. If you sustained injuries, you will be asked about the nature of the injuries and about your course of care.

As to these topics, my clients usually are not surprised about such inquires. However, what does surprise my clients is the scope of other typical topics of discussion in a normal deposition. My clients are asked by lawyers for the defense, about their living arrangements, their employment, their marital status, the whereabouts of their ex-spouses, their prior unrelated injury history, where they grew up, the sports in which they participated in high school, their grades in school, and prior injuries over the course of their entire life. They will be asked if they ever filed any kind of workers' compensation claim, ever filed a lawsuit of any kind, ever filed prior insurance claims, how they found their doctors, when they hired their lawyer and perhaps 20 to 50 other such topics.

Why do they want to know this kind of information? The real answer is that this is a "fishing expedition" for the defense attorney who is eager to spend hours digging deep into your past in the hope of divulging the "real sinister you." The rules allow for deposition questions to stray into nearly unlimited topics as long as the answers are "calculated to lead to admissible evidence." That basically means that defense counsel in a car crash case can ask about the circumstances of your divorce because the answer could be that you got divorced because your spouse got nervous about all the fraudulent insurance claims you kept filing. I have never heard that as the answer from one of my clients yet, but because that possibility is out there, they get to ask those sorts of questions.

Is that fair? Yes, because we have the same ability to seek the same level of information from your opponent when we take their deposition. The discovery phase of trial is intrusive to both plaintiff and defendant. The best way to deal with this is to be truly prepared mentally and emotionally for what could be coming. Being properly prepared is the best way to arm yourself.

2) Before any deposition I make available and strongly encourage my clients to do some preparation reading.

I would like my client to read the police report if one exists. I would like my client to read the complaint we filed in the case. Also, if you have answered interrogatories (written discovery questions), by all means carefully review what you said in those answers. If my client ever gave a recorded statement, then they should read that as well. I also encourage my client to read a full set of their medical records, at least from the accident forward, and at least a summary of pre-accident medical records. If that is too large a task, I want my clients at least to review a summary of their entire medical history before and after the subject accident. Any good law firm will have their injury client's medical records summarized. In my opinion, letting the client review that information is imperative.

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

a: The Golden Rule:
The Golden Rule of all depositions no matter who you are or the subject matter of your lawsuit is to ANSWER THE QUESTION. If the answer requires you to say yes, by all means say yes - then stop talking until the next question. This is not the time to fill the silence of the room with the sweet sounds of your voice.

This does not mean to make every answer into one word answers. Sometimes answering the question requires a sentence. Sometimes, and this is rare, answering the question might require a couple of sentences. Answer what you have been asked - then shut up.

b: Respond Consistently:
In your responses to discovery questions be mindful not to stray beyond how you have told these stories before. If it is an accident case, try as much as possible to say how the accident happened the way you told the cop at the scene, or the way you said it happened in the emergency room.

Describe your injuries to the same parts of your body as you described them when you saw the doctor. The deposition would not be the time to talk about a knee injury that no doctor noted you had.

The lawyer for the defense loves it when your answers are inconsistent with you past recitation of the events. At trial, that lawyer will suggest to the jury that every inconsistency in your story is you lying. This is a very effective strategy. That is precisely why you need to review your prior statements about the accident, what you told doctors and parrot what you said in your written interrogatories. If you can master the consistency game, you are nearly home-free.

c: Avoid Sweeping or Absolute Statements:
Any lawyer 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. While it sounds funny to imagine a person claiming to have NEVER suffered neck pain before a crash, it is painful to recall how often my clients have been lulled into making such a sweeping comment.

If the point is, "other than normal aches and pains", you've never suffered a neck injury before, then say THAT.

"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 if you're asking if I ever actively treated for neck injury, the answer is no."

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 your sweeping comment about NEVER suffering a neck pain, looks deceptive. Again, the point of nearly every deposition for the opposing attorney is to make the deponent look like he's lying. Sweeping or absolute comments are almost always dangerous.

d: Avoid Guessing At Distances, Speed, Body Movement in the Vehicle - In Fact, Avoid Guessing Period:
A deposition where your statements are being transcribed and your words become testimony is a lousy time to start guessing about things. Guessing that the severity with which you were rear-ended must have been 60 mph is a terrible thing. No one knows how fast they were rear-ended. The question gets asked to make you guess.

What exactly did your body do during the split second crash is another sucker's question. How far did your car lunge forward? How much distance was left between their bumper and yours? How long were you unconscious for? DON'T GUESS at anything. If you find yourself ready to pop off with your best estimate, instead simply tell the questioner, "I'm not comfortable guessing." That is your answer and the attorney will have to move on.

e: Be Honest:
Yes, possibly surprising to some, but, the best deponents as clients I have ever had all told the truth in their deposition. Admit the warts. If you only mentioned back injury in your first doctor visit and neck pain didn't become noticeable for days or weeks, admit it! It's in the records already.

If you resist the truth, you will look like a liar. If certain injuries got better or resolved after a crash, admit it. It is hard for most people to believe that a person gets into a crash and nothing gets better. Admit that your doctors cured some of what this crash caused. Honesty is the best policy.

f: Don't Be Combative:
Your job is to answer questions. Your job is not to be combative or argumentative. If arguing has to occur, let your attorney do it. That's why you hired him or her. You should be viewed as the patient, responsive, candid person who answered questions until there were no more questions to answer. If you do that, the defense lawyer will have to report back to the insurance company that you are going to be a sympathetic plaintiff.

g: Don't View Your Role as to Clear Up All Confusion:
If the lawyer asks you a question, answer it. If the lawyer never asks the right question, don't worry about it. Some lawyers 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 and you will start filling the room silence with the sweet sound of your voice. Getting you comfortably talking is the first step to you saying something stupid that they can pounce on.

They aren't confused, and they aren't your friend. If they could, they'd slice your throat sooner than pay you settlement money. Okay, in truth, most of these defense lawyers are pretty nice people. But as you are preparing to have your deposition taken, consider them out to cut your throat.

h: No One Wins their Case In Their Deposition:
Some clients are deceived into thinking that if they are extra accommodating to the defense attorney or use the right choice of words during their deposition that the hard exterior of the defense attorney will suddenly melt away and the checkbook will come right out and he will start writing your settlement check. Personally, I have never seen it happen.

No one will ever say or do anything in their deposition to win their case. The only thing you can really do in your deposition, if you're not careful, is lose your case. During the entire deposition, tuck your chin in, stick to the rules as referenced above and don't let down your guard until the deposition is over.

Having your deposition taken will most likely be a new experience and probably a nerve-racking one at that. But good preparation by your attorney and keeping to the rules outlined above will help put you at ease and make the process go much smoother for you.

At Anderson Hemmat, we know how important it is to properly prepare our clients for their deposition. That is why we spend the necessary time to fully review the process with each of our clients and help them review and understand their claim in detail. Contact us today if you have questions about your case.


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