If a settlement can’t be reached in your personal injury case, you may need to give a deposition.
A deposition is part of the discovery phase. It’s a pre-trial, oral process to provide sworn testimony. Plaintiffs are sworn to tell the truth, and the defendant’s attorney asks them questions. A court reporter is present to record everything. This record becomes a written transcript for use in court later.
Most personal injury cases are settled before this point, but it’s good to know all possibilities. This post is not meant as legal advice, but will describe, for information purposes only, what happens when giving a deposition.
Giving a Deposition Is Different Than Testifying in Court
- The purpose of a deposition is to gather information. So, examiners may ask questions at a deposition they couldn’t ask at trial. Unless your lawyer objects, you must answer.
- In a deposition, the defendant’s lawyer asks all the questions. Your attorney is limited to making objections.
- The deposition will take longer than an examination at trial — typically, about four hours, but it may go all day, or rarely, more than a day.
- You’ll take breaks every couple of hours, including a lunch break if needed. If you need a break for any reason, anytime; just tell your attorneys.
- Your attorneys will be there throughout, and will protect you from any mistreatment. They will also observe what the other team knows and what their strategy might be.
Preparation is Important – Your Attorney Will Help
Your law firm will prepare you for your deposition. It’s imperative to be candid and forthcoming, even if you think the facts might hurt your case. Attorneys can’t represent you effectively unless they know the truth.
Prior to your deposition, review all case material to ensure your testimony is consistent.
It’s also important to know what documents will be used as deposition exhibits. If a document is an exhibit to your deposition, you can ask to review it before you answer.
However, you shouldn’t bring, or refer to a document not already in exhibit. The examiner may (rightly) demand to see it. Instead, answer questions from memory, or say, “I don’t remember,” or “I don’t know.”
General Deposition Instructions
You can’t change your recorded deposition testimony. It’s therefore crucial to answer carefully. If you answer a question at trial differently than the deposition record shows, opposing counsel will point this out to the jury. This could hurt your case.
There are several ways to influence a positive outcome in your deposition:
Be honest. Your credibility is the most important aspect of your case. Telling the truth is also the easiest way to keep your testimony consistent.
Before answering any question:
1. Listen to the question.
2. Pause and take a deep breath as you consider how to respond.
3. Exhale and relax your facial and shoulder muscles.
4. Answer the question.
Even if the question seems simple, do this every time. It allows you to control the pace. This is even more important as the deposition progresses, and you’re tired or tense.
It also provides your attorney time to formulate an objection, if necessary.
Finally, it ensures you hear the entire question before answering. Don’t feel pressured to hurry; pauses aren’t reflected on the transcript!
Answer what was asked, and don’t say anything else. If possible, answer “yes” or “no,” and then stop. Don’t feel the need to explain your answer, or provide additional information.
After you’ve answered, the examiner may look at you expectantly. This is a technique to pressure you to volunteer information. Don’t say anything unless you’re asked.
Don’t explain your thought process. For example, if you know something happened in December because it was close to a holiday, don’t volunteer this. Simply answer, “December.”
The deposition isn’t the time to plead your case. You’re only there to answer specific questions from opposing counsel. The more information you volunteer, the more questions they’ll ask. Preserve your freedom to present information at trial, so it helps you.
Every witness makes mistakes. If you realize you’ve made an error, let your lawyer know as soon as possible. They’ll decide how to handle it.
Deposition witnesses tend to make more mistakes toward day end, because they’re tired. So, the examiner often saves the important questions for last. Remain on your guard until it’s over.
Deposition Tricks to Beware
Don’t answer a question you don’t understand. The defendant’s attorney may purposely ask ambiguous questions to trick you into providing more information. Don’t help them. Don’t ask clarifying questions that may reveal more than is necessary.
If you don’t understand the question, say so. Repeat, “I don’t understand the question,” until the attorney asks a clear and concise question.
Don’t answer complex questions. If the examiner asks a multiple-part question, ask the examiner to rephrase it. If it’s too complex to compose a mental response, it’s too complex to answer.
Take care when answering leading questions. A leading question is preceded by an inaccurate statement. It forces you to provide an answer that’s open to interpretation. For instance, “When you were speeding down the street, did you see my client approach the intersection?”
The attorney may also use negative language to confuse the question. For instance, “Did you not see that my client was not going to stop?” If so, ask them to rephrase the question.
Don’t feel compelled to change your response. Sometimes opposing attorneys will ask a question multiple times. They hope you’ll reword your response so they can exploit it. Don’t feel you should respond differently. Keep giving the same response.
Don’t express anger, or argue with opposing counsel. The examiner may try to elicit a reaction to ruin your credibility. If he or she is out of line, your attorneys will object. More likely, you’re being baited. Don’t fall for it.
If you feel upset, ask for a break. Take a moment to regain calm.
Some examiners bait you by being overly friendly and conversational, hoping you’ll return the favor and say too much. Stay serious and detached. Answer the questions, and don’t add anything more.
Things to Avoid at Your Deposition
Don’t characterize your own testimony by saying, “To be honest,” or something similar. This may imply you haven’t been truthful all along.
Avoid absolute statements, such as “never” or “always.” Just say, “I did this,” or “I didn’t say that.”
Avoid anything that could be considered insensitive, obscene, derogatory, or hurtful to any race, sex, ethnic group, or religion.
Don’t attempt to joke or be humorous.
Avoid making estimates or guesses. If you don’t know the exact time, distance, or amount, say, “I don’t remember.” Never say, “Maybe,” or “possibly.” Instead, say, “I don’t know.”
Avoid hearsay – don’t provide any information unless you have direct knowledge. Say, “I don’t know,” or “I didn’t see that.”
There’s no such thing as “off the record.” Avoid talking around the examiner or anyone else even when “off the record.” If someone hears you, they can ask about it when you’re back on record.
Don’t try to be friendly or chat with the opposing side. This is business – it’s not rude to keep to yourself or avoid conversation. It’s self-protection.
After the Deposition
Typically, depositions have both positive and negative outcomes. Your attorneys will tell you about any problems they perceive, and how they’ll address them.
A few weeks after the deposition, you’ll receive the written transcript. Read through it so you can give consistent testimony at trial.
If you’ve been injured in an accident that was another person’s fault, you may need to hire a personal injury attorney. Contact TorkLaw to find out if you’re eligible to be compensated for damages. While most clients never need to give a deposition, if you do, TorkLaw attorneys will be there to help you prevail.