What is a deposition?
A deposition is a statement by a witness or a party to a lawsuit, in which the opposing lawyer asks questions and the person answering (the “deponent”) must answer under oath. That means that when your deposition is taken, you will be giving testimony. Your testimony matters very much to help maximize the value of your case. Your testimony matters. Testimony What is testimony? Testimony is only ever six things:
That is a fully exhaustive list of what your testimony should consist of. If what you would like to say does not fall neatly into one of those six categories, you should not state it as a part of your testimony. Testimony is NOT:
When you give your deposition testimony, you will be under oath. That means that, before the deposition begins, you must swear or affirm that you will tell the truth, the whole truth, and nothing but the truth, so help you God. As I pointed out earlier, failing to tell the truth under oath is called perjury, and it is a crime. The deposition is, however, your chance to do what I call “crafting the narrative.” It is your opportunity to tell the other lawyer your story, from your perspective. What you say in your deposition will influence what the other lawyer goes back and tells his client about the value of your case. He or she will be paying close attention to your demeanor, your mannerisms, your appearance and clothing, your gestures - everything about how you present yourself and how you tell your story. Understand, a deposition is not a conversation. It may feel like one, but the defense lawyer is going to be trying to set traps for you. Even if the other lawyer comes across as kind and pleasant, he or she will be looking for discrepancies in your testimony. He or she will be trying to get you to admit facts which might suggest that you were at fault. He or she will be looking for facts or admissions to use as a tool against you. This is why it's important to understand how to prove you are not at fault in an accident while working with your lawyer. It is important that you take your time and answer each question carefully and thoughtfully. Who Will Be There In addition to you, your lawyer, and the defendant’s lawyer, there will be at least one other person in the room when you give your deposition: a court reporter. A court reporter is a person who is commissioned and authorized to administer oaths, and who will record every word said during your deposition. He or she will then transcribe, or type out, all the questions defense counsel asks you and all the answers you give. Before your deposition begins, you will be given the choice of whether to read and sign the transcript after it is prepared. If you choose to do so, you will receive a copy of the transcript when the court reporter finishes typing it, and you will have the opportunity to read it and make sure all the things you said were properly typed out. Your lawyer should assist you in making the decision as to whether or not to read and sign your transcript. Your attorney or the defense attorney may also have another lawyer, a law clerk, or a paralegal in the room during your deposition. Typically, these individuals will only take notes, and will not talk while the recorder is on. Do not let the presence of this “silent” person make you uncomfortable. It is not uncommon for lawyers to have a staff member present to take notes, so that he or she can focus on the questions being asked. Types of Questions What types of questions are asked in a deposition? Just like the questions you asked your personal injury lawyer before hiring them, the majority of the questions will be about your background. Roughly eighty percent of what you will be asked will deal with your past prior to the events which brought you to the dispute- who you are, your employment history, educational history, criminal record, bankruptcies, personal history, trades, occupations, licenses, who you live with, where you live and have lived. The other lawyer may ask you about your past activities, such as sports or recreational activities, that may have affected the parts of your body that were injured in your accident. You may also be asked about your family and children. The other lawyer will likely inquire into your personal history at length which will have the effect of lulling you into a sense of security which will make you feel like this is only a simple conversation. Only after going into these matters at length - and trying to put you at ease - will the other lawyer address what happened the day of the accident. He will ask what you were doing, where you were, who else was around, what the other people involved were doing, what you saw or heard or thought or sensed immediately before. He will take you through the event step by step, asking, what you did, what others did. He will also ask you to attempt to estimate force, speeds, distances, and time. The truth of the matter is very few of us are good at estimating distances or times. What may feel or seem to us like five minutes may be only two or may be ten. What looks or seems to us like fifty yards may only be thirty or may be seventy - especially when we are trying to remember things surrounding a traumatic event. The goal of his questions is to get you to commit to facts. If your case ends up going to trial, he will be comparing the answers you give on the stand in the courtroom against answers you gave in your deposition. While you testify in your deposition, he will be comparing your answers against the facts stated in your petition, and against the answers you gave in your responses to written discovery questions. Be sure you are certain of your facts. How to Answer How should you answer questions in a deposition? First and foremost, keep your answers short and simple, as much as you can. It has been said, “The Devil is in the details.” Do not answer questions that were not asked. For instance, if the opposing attorney asks, “What color was the light?” Do not answer, “Well, see, my cousin - that’s Tracy, she was in the car with me and couldn’t drive because she had just gotten out of jail - she was in the passenger’s seat, and she looked up, too, and saw that the light was green.” This may seem like a silly example, but it is human nature to want to tell as many details of the story as possible. Not all details are relevant to your claim, however. The only correct answers to this question are, “Red,” “Green,” or “Yellow.” Do not cry or appear to be an emotional train wreck - even if you are. Do not overdramatize. Emotions may run high, and they tend to do so when you are in conflict with someone, but you need to keep control of yourself. While it is fine, and even helpful, to let it be seen that you were emotionally affected by an event (only you can know what you felt - others can only know what you said about how you felt), histrionics and emotional outbursts will not ever, ever help maximize the value of your claim. If you show that you can be easily emotionally manipulated, the defense attorney will know she has something she can exploit as a weakness at trial. You must remain calm, and state your facts in a calm yet sincere manner. Know the facts that you should know. By that, I mean “know” them - do not preface your facts with “I think” or “I believe.” If you know a thing, you know it. By the same token, don’t try to know facts you don’t know. In other words, don’t try to answer questions just because they are asked. For example, if defense counsel asks, “What color shirt was the driver wearing?” and you did not notice, do not try to guess or create an image in your mind of the shirt’s color. If you did not notice, you do not know. Do not guess. Any statement that turns out to be a false statement will be considered a lie, at least in eyes and arguments of opposing counsel. It is perfectly acceptable to say, “I don’t know,” or, “I don’t remember.” Don’t try to sound “smart” or overeducated. No one who reads the transcript or hears it read aloud should have to get a dictionary out to understand what you said. It is easy to feel intimidated in the presence of a smooth-talking defense lawyer who uses big words and seems to talk down to you. Do not feel the need to respond in kind. Use the words you are most comfortable using, within the bounds of decency. Obviously, do not curse or use profanity. Keep it clean, keep it short, keep it simple. An eighth grader should be able to read your responses and understand the meaning of what you said. At the same time, do not hesitate to ask what a word means if you do not understand. If you do not know what defense counsel is asking, you cannot accurately answer the question. Ask for clarification if you need it. If any doubt exists in your mind about what is being asked, seek clarification to avoid admitting facts or committing to facts that are not accurate. If you begin to feel yourself constantly getting lost in the questions, this is a good time to take a break. Depositions can go on for hours and many lawyers enjoy taking depositions. If you are getting mentally drained, take a break and drink some water so that you can come back fresh and close out on a strong note. If your lawyer referred you to the doctor who treated you following your accident, it is not necessary to answer, “How did you hear about this doctor?” with, “My lawyer told me to go to him.” If your attorney is smart, she told you that it was unlikely that your personal physician would regularly treat patients who have been in an accident or workers’ compensation case. In fact, your lawyer may even have had you check with your personal or family doctor to find out if this is the case, and if your doctor does treat in cases of accident or workers’ compensation injury, you will probably be told to treat with your doctor. In that case, it would not be a false statement to say something to the effect of, “I understood my doctor does not handle cases involving personal injury or workers’ compensation, and I heard that Dr. X did.” In general, try to avoid major fact disagreements when not necessary to prove the required elements of your case. If your case involves an automobile crash, there will likely be a police report. If your recollection of the facts is not substantively different from those in the police report, do not contradict the report. Even if it is wrong on a minor fact, do not worry about it. If it is not material, it is not worth contradicting the police officer and creating a potential credibility issue. Likewise, if your case involves medical records, don’t disagree with the doctor unless you have to. If the doctor said you complained of symptoms X, Y, and Z, and that’s not EXACTLY how you remember what you said, as long as it’s not too far off, don’t worry about it. Despite the fact that juries and judges like to say they do not tend to believe police officers and medical professionals over lay people, the truth is those individuals have a built-in credibility. If you do not have to disagree with them to support your case, don’t. When you are asked about your criminal history, as I pointed out above, only convictions within the past ten years are admissible. You should give your attorney the opportunity to object if you have convictions that are older than ten years. If you have to answer questions about your criminal record, be sure to talk to your lawyer beforehand about those convictions. He will advise you how to answer. In general, you want to avoid slang terminology such as “I caught a charge,” or, “I beefed with the cop,” or anything of that nature. Answer simply and directly, using proper terms. If a past crime or anything about your past makes it more difficult for you to get a job or to get hired, do your best to minimize it. The defense attorney may ask you, “Does this make it harder to get a job?” Understand, any answer you could give to this question would be only your opinion. Since it is your opinion being sought, not your knowledge, you can craft the answer to the question in the way that puts you in the best light. If there are such things in your past, be sure to discuss them with your attorney before your deposition. He can help you craft an answer that is most advantageous to you without giving a false statement. Do not be smart-aleck or sarcastic. Remember, what you are saying is being recorded and will be typed out. Someone reading the transcript afterward will not be able to hear your tone of voice. It also will not endear you to defense counsel or cause her to want to make a good report to her client about your testimony if you are rude or arrogant. Preparing for Your Deposition When your attorney tells you that you have a deposition coming up, there are certain things he or she will ask you to do to prepare for it. In addition to a meeting in which your testimony is prepared, you may be asked to look over documents, such as police reports, medical records, narratives, witness statements, and photos of the scene, injuries, vehicle, and any other photos that may shed light on what occurred. During your meeting with your lawyer to prepare for your deposition, it is important to listen carefully to what he tells you. Make notes if you have to, and study them in the time before your deposition. Take a few minutes before your deposition begins to review the rules and remind yourself how to answer questions. It may seem to go without saying, but do not take mind-altering substances or medications the night before or the day of your deposition. One question most defense lawyers ask when they begin a deposition deals with whether you have taken any medications or drugs that may affect your mind. You need to go into your deposition with a clear head, and be able to say - honestly - that you have not taken anything that could affect the way you think or answer questions. Do not drink any alcohol at all the day before your deposition. People under the influence of alcohol or drugs tend to speak more freely than they ordinarily would, and it is key to your case that you be able to answer thoughtfully, with a sober mind, simply, and briefly. Dress For Success You do not need to wear a suit and tie, but make sure your clothes are clean and presentable. Clean your fingernails. Be sure to shower the morning of your deposition. Do not wear an excess of cologne or perfume. Men should wear long pants - no shorts - without holes in them, and close-toed shoes. If you have visible tattoos on your arms, wear a long-sleeved shirt. Women should wear jeans or slacks or a knee-length or longer skirt, and should avoid excessively plunging necklines. The idea is to appear presentable and normal. Nothing about your appearance should draw attention or remark. If the defense lawyer leaves the deposition reminded of one of his friends from church, this would be ideal. Focus on staying calm and keeping your emotions in check. Your attorney will be with you and will ask for a break if he sees that you need one. You can ask for a break at any time. Answer honestly, carefully, and remember that your testimony is key to Maximizing the Value of Your Case. |
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