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Back to All ArticlesHow to Give a Deposition in a Personal Injury...

How to Give a Deposition in a Personal Injury Case? - Personal Injury Lawyer

Added Date: Feb 4, 2019 | Category: Legal | Viewed: (106) times

A deposition is a statement taken of a party or a witness, under oath, in front of a court reporter. Any statements made, may be used in court. It is one of the most important tools that personal injury lawyers use to gather evidence and information about a case. 

As a trial personal injury lawyer, almost everyone of my clients who is involved in litigation will be required to give a deposition. And in most cases, I will depose the person who we contend is at fault for causing damages or injuries to my client. Here is some basic information about a deposition. 

In the deposition, there will be a court reporter whose job is to take down every single word that is said in the deposition. Sometimes the deposition will also be videotaped by a videographer. My client will be asked a long series of multiple questions by the personal injury attorney representing the opposing party. In some cases, there may be more than one personal injury attorney, and each will have their turn to ask questions. 

The testimony will be taken down by the court reporter that will type it up and print it out in a booklet type form. To help you prepare for your deposition, here are a few things I always tell my clients. Rule number one, tell the truth. This is the most basic rule and should never be taken lightly. Additionally, here are four steps that are also important to understand. 

First you should always LISTEN to the question being asked to you very carefully and then Secondly, PAUSE. PAUSE before you answer. The reason you want to pause is, one, you want to make sure that the personal injury attorney is through asking the question, two, it gives yourself an opportunity to make sure you understand the question, and three, it gives your personal injury attorney an opportunity to make an objection if one should be made. 

So do not answer the question too quickly and pause before you answer. After following these first two steps, then you can go on and number Three, ANSWER JUST THAT QUESTION. Then number Four STOP TALKING. Often times, this is the most difficult part of the deposition because people want to explain all sorts of things in their answer, when quite often, an explanation is not requested or needed. 

If an explanation is needed, typically the personal injury attorney will ask for it or, at the end of the deposition, YOUR personal injury attorney may ask you to explain something further. So again, the four steps are, listen to the question, pause, answer JUST that question and then STOP TALKING. By following these steps, you will be able to navigate through an entire deposition easily. 

A good analogy to a deposition is that of a baseball game. What I mean by this is when your team is in the outfield, it does not matter how good you are at playing baseball, and you cannot score a run. I tell my clients that when you are being deposed, it is like being in the outfield. You do not have the ball, and you will not be able to score a run. You are purely playing defense. 

And when I say defense, that means you must listen to the questions and answer them accurately without much elaboration. There is a time and place to elaborate on your answers, and I will get to that in a minute. Now that we have gone over the basic rules of how to procedurally listen, pause, answer and then stop talking, the next important thing to know is what the appropriate answers are. 

There are really just five basic answers that are the key to a successful deposition. The first one is, YES sir, the second one is, NO sir, the third answer is, I DON’T KNOW. Number four is, I DON’T FULLY UNDERSTAND YOUR QUESTION, and number five is, if you need one, you may ask to 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, and then answers it that way. 

However, if you do not know the answer to a question, the worst thing you can do is guess. The problem with guessing in a deposition is that if you guess wrong, it might be interpreted as a false statement. We all know that no one is going to intentionally lie at a deposition, but by guessing wrong, you can cast doubt on your credibility. So if you're not certain of your answer, make sure that you tell the personal injury attorney that you don't remember or you don't know or you're not sure. 

If you are sure, then tell them your answer with certainty. Also, if you do not understand a question, or it seems complex or compound with lots of parts, please ask the personal injury attorney to rephrase the question. The reason for this is that 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 did not fully understand the question and you guessed, then your answer may not be as accurate as you meant it to be. Remember, you should take your time and you are not to be rushed. As a witness, you can set the pace of the deposition by listening to the question carefully, pausing, and then answering the question when YOU are ready. Also, you are allowed to take breaks if and when you need them. 

A deposition is not an endurance test. Typically most depositions come in three phases. Phase one will be about your life BEFORE the accident or event that caused your injury. You will be asked all types of background questions like, tell me all the places where you worked, where you lived, where you went to school, all about your prior medical history, as well as who are all the doctors that you have seen in the past. 

If you’ve ever been convicted of a crime, been arrested, been in drug or alcohol rehabilitation. Or have you ever been divorced, used an alias name, filed tax returns for the past five years, or lied on an employment application. You will certainly be asked you if you have ever made any other claims for personal injury or worker’s compensation. They will ask you to list all other prior injuries or hospitalizations. 

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 that 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 straight forward. 

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 of how the accident happened may speak for themselves. You really won’t have much to explain since you were facing forward looking out the windshield and you never saw the car that hit you before the impact. 

In this situation, your answers will be short and simple. However, in other cases that are more complex and the issue of liability is contested or in dispute, your version of how the accident happened may be critical to protecting your claim. In a contested litigation accident, if you don't know how the accident happened or the details of it, then you may not be able to refute the defendant's version of the accident. 

You should discuss this type of information with your personal injury attorney so that you are able to easily explain the facts of your accident as you know them. Often times, personal injury attorneys will try and set a trap for you by getting you to estimate or take guesses as to the amount of time or distance you had to observe the other vehicle. If you are able to accurately estimate those things, then please do so. 

But if you don't know, then do not guess. Make sure you and your personal injury attorney go over the details of how the accident happened so that you are confident explaining what happened. The third phase of the deposition is about life AFTER the accident. This is an area where they are going to ask you questions about how this accident has affected your life. 

They will ask about what injuries you have sustained and 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, you should elaborate and thoroughly and explain how the accident has affected your life. 

Now you may be wondering why your personal injury attorney is sitting there quietly and not objecting to things such as relevance of the questions being asked. Well, it's a little bit frustrating; know that if personal injury lawyers objected to all the things that they could object to in a trial, depositions would take days and weeks rather than just a few hours. There is a rule of law that says personal injury lawyers can only object to a few things in a deposition. 

The first is, your personal injury lawyer should object to any question that would violate or infringe upon your constitutional right not to incriminate yourself. We have all heard politicians asserting their Fifth Amendment privilege against self-incrimination. 

If and when your personal injury attorney makes any objection, it is best that you stop speaking immediately, and listen carefully to your personal injury attorney to make sure that you follow your personal injury attorney’s instructions and advice. Another common area of objections is one that calls for violating the personal injury attorney/client privilege. 

In other words, if the personal injury attorney is essentially asking you what you and your personal injury attorney have discussed, that is privileged information and your personal injury attorney should object, then say, that is privileged communication and instruct you not to answer that question. 

These two objections are the main objections that you might hear in a deposition where your personal injury attorney will advise you not to answer. However, there is another objection which is called objecting to the FORM of the question. Your personal injury attorney may object occasionally to the form of the question being asked by the other personal injury lawyer. 

If your personal injury attorney objects to the form of the question, it is best if you stop talking, listen to your personal injury attorney carefully, and he will probably tell you that it is okay for you to answer the question. But there may be some technical thing about the question such as, it might be compound or misleading, or there might be other things that are wrong with the question and your personal injury attorney is just pointing it out for the record, which could prove to be very important later on in trial. 

If your personal injury lawyer makes a FORM objection and you understand the question and are able to answer it, please do so. If for any reason you do not understand the question, please tell the other personal injury lawyer you don't understand the question. Here are a few additional tips that will help you survive a deposition. Do not ever argue with the other personal injury lawyer. 

If the deposition becomes unpleasant, it is your personal injury attorney’s job to protect you. You should not have to fight for yourself. Avoid any attempt at a joke or sarcasm. This rarely reads well in a transcript and will make you look bad. Also, every witness can make a mistake in their deposition. Do not become upset if you find that you have made one. 

Once you realize you made a mistake, you should tell the opposing personal injury attorney that you made a mistake and would like to correct and/or clarify something you said earlier. Also, 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, and ask that they speak with your personal injury attorney. 

If you are interrupted by the other personal injury lawyer, stop talking, let the personal injury lawyer finish speaking, and then courteously state that you were interrupted and that you did not finish answering your previous question. Some personal injury lawyers will ask the same question over and over again, but just slightly differently. 

Usually, when they ask the same question over and over, they are hoping you will change your answer. If this happens, you can politely remind them that you have answered that question before, and your answer is the same. One other thing to remember is that the opposing personal injury lawyer is NOT YOUR FRIEND. 

This is NOT a friendly, casual conversation. This is an interrogation. The other personal injury lawyer has a job to do and it is to find holes and weaknesses in your case. If they don’t seem to understand something, it is 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. Another tip, a deposition is not a memory test. If you need notes to keep track of important things, you can use notes, but whatever you refer to in the deposition will be examined by the personal injury 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 in some cases, a few days. If you have any questions about this information, please call me. Thank you for watching my video.

Added by: westcoastlawyer

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