How to Give a Deposition — 5 Deposition Tips

How to give a depositionUnless your case settles immediately, the odds are pretty high that at some point you will have to give a deposition. Depositions are not fun for anyone (even lawyers don’t like having their depositions taken), but there are some tips that can make your deposition go smoother and keep you from hurting your own case. I hope that you already know that you shouldn’t lie in your deposition (it is under oath, after all), so I left that piece of advice off the tip list. Hopefully, your lawyer will meet with you before your deposition and cover all of these tips, but if you don’t feel like waiting for that meeting to learn how to give a deposition, this article is for you.

Deposition Tip #1 — Wait For the Lawyer to Finish His Question, and Be Sure You Understand it, Before Answering

This seems like obvious advice, but “answering before the question is finished” is probably the rule most frequently broken by people giving depositions. In normal conversations, we talk over each other all the time, so it’s only natural to fall into that habit when you give a deposition. You must make a conscious effort to break this habit for three main reasons. First, the court reporter can only write down one person talking at a time, so you risk an incomprehensible or possibly incomplete transcript by talking over the questioning attorney. Second, even though you may think you know where the question is headed, you could be wrong. Why risk answering a question that hasn’t been asked? That only helps the other side. Third, by jumping in before the question is finished, you prevent your lawyer from raising any objections to the question before your answer begins. You always want to wait a second or two after a question is asked to give your lawyer time to object.

If you allow the deposing lawyer to finish his question and you don’t understand what he’s asking, tell him. Don’t guess at what you think he’s asking. Most of the time, if you don’t understand a question, it’s the lawyer’s fault for asking a sloppy or confusing question (it happens — we’re human). The lawyer won’t take offense if you ask him to rephrase the question.

Deposition Tip #2 — “I Don’t Know” and “I Can’t Remember” Are Perfectly Good Answers

When you give a deposition and you’re asked a question that you think you should know the answer to, but don’t, there is a strong temptation to guess or make up an answer. Resist that temptation. There is no shame in answering “I don’t know” or “I can’t remember” in a deposition, as long as it is the truth. Guessing at an answer out of shame over your poor memory or lack of knowledge will be seen as lying if your guess turns out to be wrong.

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If the deposing lawyer tries to embarrass you into guessing by asking follow-up questions about your memory in general (e.g., “have you always had problems with your memory?”), don’t take the bait. Just let him know that you take the oath you are under seriously and you’re not going to guess about something you don’t know or can’t remember. If the answer to a question comes to you later on in the questioning, you can always let the deposing lawyer know that you’re now ready to answer his previous question.

Deposition Tip #3 — Your Deposition is Not Your Time To Tell “Your Side of the Story,” So Just Answer the Questions That Are Asked

Your deposition is being taken by opposing counsel so he can gather information about your case. A good lawyer will want to learn both the good and the bad about your case so he can evaluate it correctly. However, if the deposing lawyer doesn’t ask you about something that you know will help your case, don’t try to “shoehorn” that information into a response to an unrelated question. Your deposition is not the time to tell your side of the story. Trial is the time to tell your story, when your own lawyer is questioning you. Let your lawyer decide, after the deposition, if the omitted information should be shared (for settlement purposes) or held back to be used as a surprise at trial. Witnesses who know how to give a deposition know that the goal is to answer only the questions which are asked.

Deposition Tip #4 — Keep Your Cool

Sometimes lawyers ask questions that upset you. The lawyer may have an attitude, or take an accusatory or sarcastic tone. Don’t let him provoke you into responding in kind. You want to be perceived as a victim seeking justice, not as a jerk with a vendetta. The lawyer may be intentionally testing whether your buttons can be pushed, as one of his goals at your deposition is to evaluate what kind of witness you will make at trial. If you show that you can’t be provoked to anger when you give a deposition, the opposing lawyer probably won’t try to agitate you at trial. If he does, and you still keep your cool, he knows the jury will likely see him as a bully picking on the poor injured victim.

There may be certain subjects raised in your deposition which cause you to cry. This is really unavoidable, and I’m not suggesting that you could or should try to repress this response. Crying is consistent with the “sympathetic victim” image you want to portray, so it won’t hurt you. Of course, if your tears aren’t genuine, most experienced lawyers will be able to tell and you will lose a lot of credibility. This could hurt you during settlement discussions.

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Deposition Tip #5 — At the End of Your Deposition, Don’t Waive Your Right to “Read and Sign”

At the end of your deposition, the court reporter will ask you (or your lawyer) if you want to “read and sign” your deposition transcript. No matter what your lawyer says, you always want to read and sign. When you say “yes” to reading and signing, it means you get to read your deposition transcript before it is finalized (and then sign off on it). If you realize that an answer you gave was not true or was not complete, you can make corrections to it on a piece of paper that gets attached to the back of the deposition transcript called an “errata sheet”. Some lawyers mistakenly think that “reading and signing” only allows you to correct typos and transcription errors. This is wrong (and they should know better). Reading and signing allows you to change the substance of your answers completely. Of course, if you make a large change, opposing counsel may want to re-depose you about that subject.

Correcting a mistake in your deposition by reading and signing is far preferable to leaving the error uncorrected or having to explain the error for the first time at trial. Mistakes look a lot less like lies if they are fixed through this process. It is well worth the time it takes to do so, and it cannot hurt you.

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73 Responses to How to Give a Deposition — 5 Deposition Tips

  1. cynthia spencer says:

    This article was very helpful. My slip and fall case, resulted in a shattered elbow, 3 operations and 3 years later still not settled. The gentleman whose walking cane I trip over has $1,000,000. coverage. I recently went over the paper work for a depostion, signed it. I now know how to react and what will be facing me. Thank you

  2. grant says:

    Well tomorrow is my deposition. I dont have the average injury case. When I was involved in my latest accident it re aggrevated my back injury and put me back on light duty (im military)Well the previous injury was from another accident a year earlier and it ended up settling and I also received PIP coverage for the rest of my life. So anything that has to do with my back as a result of that accident State Farm has to pay for. From December 2010 to March 5th 2012 is how long it took them to pay for my disc replacement and partial fusion. Now the defense and state farm are trying to say I defrauded them. I do not believe I did anything wrong. THe injury was pre existing since state farm after many letters from my surgeon would not ok the surgery. SO I busted my ass in therapy and got to a point where I thought I could be released to full duty and I was. Then the second accident happened and I sent all my bills to state farm beause I had PIP coverage and the insurance adjuster refused to pay any medical bills. My fall back was statefarm who covered lost wages, physical therapy etc. Had they fixed my back out of the multiple times then we wouldnt be discussing this matter. But my neck was also injured and none of those bills weremt sent to state farm. I was under the complete undestanding any problems related to my back were to be sent to state farm. I never knowingly or intentionally defrauded anyone. My surgeon listed the injuries as 80/20. 80% and 20%but with my neck being a new injury its more like 50/50 meaning state farm is liable to pay. Also my UIM payed out and my lawyer collected 33.3% I didnt think they goy pain unless they win? Am I wrong? and needless to say Im nervous because they are going to try and make me look bad. What do you think?

    • fl_litig8r says:

      I hope your lawyer is up to speed on these potential fraud issues that will almost certainly be explored in your deposition. While it doesn’t sound like you did anything wrong, you need to be careful how you answer questions relating to representations made about the pre-existing conditions. I hope he advised you about how to handle these questions. If not, you need to meet with him right before the depo to discuss this.

      As to the lawyer taking his fee from the UM settlement, this is normal, as long as he also disbursed your share to you. Your lawyer doesn’t get paid if he “wins”, technically. He gets paid a percentage of any money he recovers for you as part of the case. He doesn’t need to wait until all claims are resolved to pay himself, as long as he pays you at the same time (assuming there is money left from your share after liens). So did the UM pay the full $100,000.00?

      • grant says:

        No they didnt. After sending 59 pages of wasted paper with my policies they stated yes I did call but I was supposed to go online and digital sign for it to take affect. Thats why I called and recorded a USAA rep stating any changes I make on the phone with her will take place at 1201am and I do not have to go online to do anything else. We informed my claims rep that we disagree and got him to type a letter that would allow us to cash the initial 25k and still pursue the other 75k. My lawyer said the only problem we may run into is them stating they sent out policy statements to me which I never opened. I just assumed the rep did her job. I switched vehicles twice and the only thing they would ask me is do you want your limits the same and I would say yes assuming my liability was at 100K but there is also know proof I never recieved them. Deposition was yestarday I was honest and if I didnt know I stated I Didnt. I didnt get heated and kept my cool. My attorney said I did an excellent job. Sept 27 is mt IME and then 28th is settlement conference which is a waste of time. Trial is Dec 10th. If I get the excess judgment and she does signover the bad faith the does that need to have a trial date set as well? She has lived in the US since she was 12 and now she is 34 and still cant speak english and also does not work. The jury is going to have a hard time awarding a large judgement knowing she is broke. MEdical bills are at 152k future medical treatment estimate is 75,000 and ill be light duty for the rest of my life. Lost wages are from 354k up to 1.4 million based on 4 different scenarios the economist drew up. Im just scared as hell i am Then what do I do? If I had to choose either 5 million or staying in the service i would choose the service, thats how much it means to me

        • fl_litig8r says:

          As an initial matter, the jury shouldn’t have any idea how much insurance this woman has (I don’t know of any courts that allow this evidence in, or even evidence of whether the person is insured unless you’re in a “direct action” state). So, legally the jury shouldn’t take her ability to pay into consideration in determining your damages. This usually isn’t a problem in personal injury trials.

          If she refuses to assign her bad faith claim to you, you would have to bring an action to force her into bankruptcy (at which point the bankruptcy trustee takes over her claim and would almost certainly agree to the assignment). The grounds and procedures for forcing someone into bankruptcy are better asked of a bankruptcy lawyer, which you’ll probably need to hire if she won’t agree to the assignment. Most personal injury lawyers, myself included, wouldn’t want to try this ourselves — so you’d have to pay for the bankruptcy lawyer separately and up front (expect it to be a few thousand dollars).

          • grant says:

            Correct, there can be no mention of whether she has insurance. I believe her lawyer would advise her to assign the bad faith over to me but she could still say no. She doesnt speak english well and isnt very bright so hopefully she knows its in her best interest. The defense also pushed again for us to settle prior to deposition. They have to know what they are up against

  3. Frank says:

    I read your article and I find it ver helpful. You say in your article that a deponent should only answer what is being asked and not to advance any other facts. Should the lawyer representing the deponent cross examine his client in his deposition?

    • fl_litig8r says:

      Generally, I’m against this. You don’t want to give opposing counsel free information or open up new lines of questioning he may have missed. Your lawyer can talk to you whenever he wants, and if he needs to produce additional facts to oppose a summary judgment motion, he can get an affidavit. Your time to tell your side of the story is at trial, not at your deposition.

      Of course, there will always be exceptions to this rule — such as if your lawyer thinks that a prior answer is misleading and needs to be clarified immediately. However, any questioning by your own lawyer should be extremely brief.

  4. Deposition Vergin says:

    During my deposition, can I use paper to capture my thoughts before I answer a question? I’m an educator and a visual learner. I am not able to respond to verbal questions as I am unable to track. Any help or suggestions?

    • fl_litig8r says:

      Technically, you can, but it will make for one extremely long deposition. Usually, people (mostly lawyers) who take notes during a deposition don’t pay close enough attention to what is being said (unless they are very short notes — like a word or two). You may be different, but I strongly recommend you talk this over with your lawyer beforehand and see if you can come up with a better solution.

  5. Frank says:

    When a party is being deposed is the opposing party permitted to be present?

  6. Sam says:

    Hello and thank you for providing this service. I’m a plaintiff in a personal injury suit and represented by counsel. I submitted my interrogatories five months ago and gave my deposition a week ago. We do not yet have the defendant’s ints back yet and my attorney has apparently given a few courtesy extensions. This process seems very asymmetrical to me and it seems like we are at a disadvantage. How unusual is this? Thank you.

    • fl_litig8r says:

      Giving extensions for discovery to opposing counsel is very common, even when you don’t need them in the same case yourself. In fact, most judges get pretty annoyed at counsel who jump to filing a motion to compel instead of giving opposing counsel an extension (or two). It really is a judgment call as to when opposing counsel is abusing the courtesy, depending on the length of the extension(s), the nature of the information sought and who is providing the information. If you’re asking standard questions of an individual local car accident defendant, one 30-day extension is enough in most cases. If you’re asking detailed information from a corporate defendant that may require answers from multiple people out of the local area, more time may be reasonable. As long as it appears that opposing counsel is making a good faith effort to get the information, and isn’t just dragging things out (your lawyer will likely know this if he’s had any past dealings with the lawyer), it’s a good idea not to bother the judge with it.

      • Sam says:

        Thank you and my apologies that it seems my question was unclear. My primary question is whether or not it is unusual that I completed my interrogatories five months ago and have done a live deposition and we do not yet have the interrogatories back from the defendant. It seems out-of-balance and potentially “unfair” to me/my case. Thank you.

        • fl_litig8r says:

          I see what you’re asking now. I assume that you’re concerned that by them getting your discovery first, they might be able to lie and craft their answers around yours. While in theory this could be a concern, in practice it rarely is. If your case is a typical negligence case, the odds are good that the other side had a pretty good idea what your discovery responses would be before they got them, anyway. So why bother asking? To commit you to your answers and avoid any surprises — and to get generic information like the names of your doctors and amount of your claimed damages.

          So, if a party is going to lie or shape its case around what the other side says, it can usually do that without having to wait for discovery responses. It normally provides no real strategic advantage to get the other side’s discovery responses first. Your lawyer likely already knows how their responses are going to go for any questions that would be of strategic value.

  7. John A. says:

    My depostion as a plaintiff is scheduled for next week. Court date was set for September of this year. My attorney beliefs the case to be open and shut. I had shoulder surgery to repair the injury received. What is the likelihood of defenant’s insurance company offering a settlement prior to the actual trial?

    • fl_litig8r says:

      Given the fact that the vast majority of cases settle, I’d say very good. Hopefully you can set up a mediation for not too long after your deposition (assuming that one is necessary — some cases can be settled without one). Of course, everything depends on how reasonable both sides will be, which I can’t predict.

  8. John A. says:

    Thanks for the advice and your awesome website! It is usually shortly after my deposition, or do you think they will take it the courthouse steps?

    • fl_litig8r says:

      That really depends on the case, but more cases settle early in the process than on the courthouse steps.

      • John A says:

        Had my deposition and it turns out the guy that hit me causing injury was “on the clock” at work. He works for a large corporation. What does this mean for the whole timeframe? Does his employers insurance cover the damages completley now, or does his (defendant) insurance provide compensation? The trial date is still scheduled for September.

        • fl_litig8r says:

          Both the employer’s and employee’s insurers would be liable. You could choose to sue either one or both, and each would be fully liable for your damages — depending on the terms of the coverage, and how much each ultimately pays, one insurer may be entitled to reimbursement from the other for all or part of the money owed. That doesn’t effect your ability to recover your damages from either. So, if the employee has $100,000 in bodily injury coverage o his vehicle and the employer has $500,000 in general liability coverage, you would be able to recover $600,000 total from the insurers.

          There are a number of considerations that come into play now that you know another defendant is available. If you add the employer, it will likely delay your trial date, as it will be entitled to conduct discovery just as the employee had. It will likely have its own attorney, so you run the risk of having another (possibly better) attorney on the other side of the case. The upside is that it also adds another defendant who might be willing to pay up enough to allow you to settle case (in addition to whatever the employee’s insurer has offered so far). Plus, if the employee’s policy limits may not be enough to pay all of your damages, odds are that the employer’s are.

          I’m sure your lawyer is weighing the risks/benefits of bringing the employer into the current lawsuit. I’m surprised you didn’t discuss this with him after finding out that the employee was acting in the course and scope of his employment at the time of the accident.

          • John A. says:

            Once again, thanks for the replies. I too wish we knew this a long time ago. I don’t understand why his insurance company never asked to find this out in the early stages of discovery.

          • John A. says:

            After finding out that the guy that injured me was in the scope of work, my lawyer seemed to think that we should move quickly on this matter by suing the employer as mentioned above. The trial is set 2 months from now. After speaking with her last week, I don’t think she has moved on this at all. I don’t know how to address this as far as communicating my dissatisfaction and frustration about the inattentiveness of her to my case. I fear that once the employer is served, the trial will be pushed back well into next year. I worry that if I complain to my attorney about this, she’ll not want the case. I ask you, because your second opinions are so valuable.

          • fl_litig8r says:

            The odds are good that the trial will be postponed if you add the employer, but in most cases it is worth it to do so. Of course, unless you are #1 on the docket for your trial week, your trial may have been bumped anyway.

            As far as speaking with your lawyer, I wouldn’t accuse her of being inattentive to your case, especially if you don’t know whether she has done anything regarding the employer or if she has a god reason for the delay (if she hasn’t). Be diplomatic. Just ask the status of adding the employer and see what she has to say. There’s nothing wrong with asking about any delays, as long as you’re calm and polite about it. Telling her that you’re disappointed with the amount of time it’s talking, if appropriate, can be done without both sides leaving the conversation angry (which helps no one).

          • John A. says:

            It appears that the defendant filed a motion of continuance. The Trial date was set for Oct. 7, (see July 31, 2013 posting 9:16am) Usually, how much time does a judge normally give a defendant that has been recently been added to the lawsuit to conduct their own discoveries in relation to the new trial date? Is their a ballpark number?

          • fl_litig8r says:

            In state courts, judges rarely place strict discovery deadlines except in relation to an order setting trial. Usually, they’ll wait until a party notices the case for trial again, relying on the parties to tell it when discovery has been completed. I’d expect it to be a few months at least (obviously this depends on the case) before the court would consider the matter ready to be set for trial again. Of course, a problem with this approach by state courts is the fact that the next trial date they give you will almost certainly be several months out from the date trial is requested, so you’re stuck waiting several months for discovery to finish and then several months after that due to the court’s trial calendar. Ideally, the court would have re-set the case for trial immediately, choosing a date say 5-6 months down the road for trial and putting the onus on the new party to finish its discovery in time. Unfortunately, most trial courts don’t operate this way.

  9. Barb B says:

    I am a pro se, in forma pauperis plaintiff arguing a 42, 1983 case in the USDC. After surviving two Motions to Dismiss, a year after asking for discovery, the Court finally granted it. I sent my FRCP 33 and 34 requests to opposing counsel and received my notice of deposition, duces tecum, a week later. Although the Court ordered my Rule 34 requests be written with specificity, Defendants’ request for documents is generic; all records, notes, files, blah – blah – blah, pertaining to my Complaint. No dates, no descriptions, nada. My Complaint and Consolidated Brief in Opposition to Dismiss included the majority of my documentation. 1) Do I have to provide these documents again? 2) Because I am in pro se, do I have to provide opposing counsel with information normally protected by privilege? Thanks. (And yes, I know I have a fool for a client… however, the three years of legal abuse I endured in the state Circuit Court rendered me penniless – – – ordinary injustice).

    • fl_litig8r says:

      1) If you already provided documents that are being requested as part of a Request to Produce through some other method, you can answer that they have already been provided, but you should specify which documents are responsive to which request, and how and when they were provided (e.g., “1. All medical records in plaintiff’s possession were previously provided to defendant as part of plaintiff’s June 11, 2013 Rule 26(a)(1) disclosures.”)

      2) I’m assuming you mean work product (as attorney-client privilege wouldn’t apply). Yes, you can assert a work product privilege to the same extent that an attorney representing you could — but no more. For example, you can’t refuse to answer factual questions based on your personal knowledge, but if you interviewed witnesses and took notes, or if you wrote down your legal impressions and/or strategies, those would be protected to the same extent a lawyer’s would be. Know that while “opinion” work product enjoys near-absolute protection, there are exceptions to withholding fact work product, such as when the defendant cannot get that factual information by any other means. It’s a complicated area, so it’s hard to make generalized statements about what will and won’t be protected. Just try to be judicious in asserting the privilege, and if the other side challenges your assertion, research the basis for their challenge thoroughly before assuming that you’re right. If they resort to a Motion to Compel and you lose, the court could make you pay their attorney’s fees for time spent on the motion. Usually, federal courts require parties to attempt to resolve discovery disputes between themselves before such a motion is filed, so you should have a chance to research a defendant’s challenge to your privilege assertion (and change your mind, if needed) before he can involve the court.

  10. E Alvarez says:

    This website was so helpful to me. I have a deposition scheduled in a few weeks and I am worried about it. I am a plaintiff in a personal injury case and I have heard horror stories about defense attorneys attacking and trying to discredit the plaintiff. After reading this I am much more calm about the situation. So thank you!

  11. R Lee says:

    This is a very helpful website! I have been asked to give a deposition in 5 days and am a bit nervous since I have never done this before. I was wondering if it is appropriate to ask to review the types of questions that will be asked prior to that day. I do not think quickly and so would love time to process my response.

    • fl_litig8r says:

      Your lawyer should meet with you to go over generally what will be asked at your deposition. We usually don’t have specific lists of questions to show you, as most of us who have been practicing for any length of time have ditched the lists and either do them off the top of our heads or from a very broad outline. You may want to review this article, which is more specifically about the plaintiff’s deposition, and this article, which discusses the typical things defense attorneys ask about through discovery in general.

  12. Bill says:

    Is it common for depositions to be postponed/delayed? I’m a plaintiff and my lawyer contacted me in May for possible June deposition times. Nothing was scheduled. Now it’s almost August and still no depositions scheduled.

    • fl_litig8r says:

      It’s not uncommon to run into issues scheduling depositions. Often, the lawyers will want to schedule multiple depositions for the same day (especially if one of the lawyers isn’t local), so it can be tough coordinating a time when everyone is available. If there are more than two lawyers on the case (e.g., multiple plaintiffs or defendants), it can take a while to find an opening on everyone’s calendar.

  13. Lucy says:

    Thank you for the services you are providing here, as you are helping so many people.
    I am a pro se forma pauperis litigant in Southern Fl Federal court. I have two questions concerning the depos.:
    1) Can I record the depos without announcing such?
    2) Will I look like a blithering moron if I ask questions to persons the Defendants’ will be deposing? Meaning, for the depos they are paying for, can I ask questions to the deponent without making myself out to be awful?
    Thanks in advance.

    • fl_litig8r says:

      Do not secretly record the deposition. If you want to make your own recording, you should cross-notice the deposition and state how you will be recording it (audio or video, and who will operate the recording device — if you will be, say so). See Fed.R.Civ.P. 30(b)(3)(B):

      With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise. (emphasis added)

      As to your second question, feel free to ask the other party’s deponent your own questions. It isn’t considered rude or unprofessional to question a witness set for deposition by another party. In fact, it’s expected. Witnesses get cross-examined in depositions just as they do in court, often more thoroughly. Don’t feel bad about running up the cost of the depo by making the transcript longer, unless that’s your only reason for asking questions.

  14. Lucy says:

    Thank you once again for the great advice. I have memory issues and need to have conversations recorded, so out of habit I record everything. I will notify them.
    Also, I read a previous post where you suggest an outline as opposed to a set of questions. As I mentioned, this is a products liability against the manufacturer, and vicarious liability (and many other counts) against the retailer due to acts of two of the employees.
    If you could also explain the importance of the patent with the manufacturer. I am unclear of the relevance of the patents and what true bearing, if any, it has.
    Once again thanks for you time.

    • fl_litig8r says:

      I suggest using an outline instead of a detailed list of specific questions at a deposition because when people use lists, they tend to miss opportunities to drill down on follow-up questions because they are afraid it will throw them off their lists (which it usually will). Deponents rarely answer exactly as you expect them to, so you want to be sure that you’re listening to the answers and following up until that particular line of questioning is exhausted before moving on. It’s hard to really listen to an answer and ask appropriate follow-ups if you’re worried about messing up the pre-planned order of questions you brought with you. Plus, once you get lost using a script, it will leave you flustered and scrambling to get back on track. It is far better to make a general outline of things you want to ask about, so that you can ask questions dynamically in response to the answers. Once you’ve covered a particular area to your satisfaction, you move on the next area on your outline. It sounds scary to someone who has never done it before (what if I can’t think of any questions?), but once you start, you’ll realize that the questions flow more naturally than if you had used a script.

      As far as your patent question, I’m really not sure what you’re asking with such a broad question. Frankly, I’m not so sure that the patents a defendant holds will have much bearing on a product liability case, unless those patents reveal a process or design that is inherently defective. Of course, you should be able to obtain that information without having to deal with the patents.

  15. Lucy says:

    Thanks for the clarification. I originally started with an outline and after many hours of Google overload (lol) second guessed myself and composed lists instead. I will head back in the outline mode now.
    Again, Google helps me tremendously, but also clouds me at the same time. Products liability cases are rare to find info. on and the one avenue of advice I did find was very interested in the patent information. I could not grasp the importance and I am very aware that EVERY product built has a defect. So, again thank you for putting my mind at ease about the patent line of questioning. I honestly would not have a clue about any details I would be able to obtain about the patent anyway and was apprehensive to follow that line of questioning. So I will avoid it.
    Can you lead me into a direction, or your own opinion, of any pressing issues that really do need to be addressed with the manufacturer?
    My case involves a product that was unsafe and the manufacturer, themselves, actually produces a safer version of the product, which is the top of their product line. They already tried to use a generic defense of state-of-the-art which I found a little comical, considering. The opposing counsel obviously has no idea of the products their client produces. Should I bring up the other, safer product they produce or leave this as my “smoking gun”? I have read that the “smoking gun”, “ace in the hole” concept can really irritate the courts and being pro se I really need to be careful not to irritate the Judge any more than normal. Some Judges have little tolerance for the pro se litigant and I fully understand why, so any advice to minimize their irritation is greatly appreciated.
    Thank you for your valuable insight.

    • fl_litig8r says:

      I’m not really a products liability lawyer, so I wouldn’t feel comfortable giving you any specific guidance as to how to conduct your depositions. Plus, that’s really more along the lines of acting as your unpaid lawyer, which I just don’t have time to do. I would not be coy in the deposition when it comes to defeating their state of the art defense. You need to get your evidence now, so if you can get them to admit that they themselves have a safer design, do it. You need to expect that they will file a motion for summary judgment at some point. If you don’t get the information from them to defeat the state of the art defense now, you may never get that opportunity because you may never see trial.

  16. Lucy says:

    If I am asking to much of your time or advice, please let me know.
    In my Complaint, I have held both Defendants equally liable under the Fl. statute 768.81. Defendants brought up the repeal of 768.81 in 2006, however, the clause was revised and not repealed and still holds applicable if there is no defined line of indivisible injury doctrine. In my case, had the product NOT been defective and malfunctioned, the other Defendant’s employees would not have performed the acts they did thus quantifying my injuries. Both Defendants demanded this to be completely (“in its entirety”)be stricken from my Complaint, however the Magistrate did rule in my favor and made reference that “if nothing else it puts them on notice”.
    Am I missing the picture here as to why 768.81 may not apply in my case? I am reminded of the two men, in the woods, with campfires at opposite ends of the woods. The woods become engulfed in flames and there exists no means to decipher the percentage of fault of each man, thereby they are held 50/50. I am very conflicted with this part of my case by the Magistrate’s comments, “even if Defendants may be correct on this point of law, the court does not construe this shortcoming to dismiss the Amended Complaint. Whether the Plaintiff ultimately will prevail is yet to be decided and this includes whether the law will permit holding both Defendants liable under Count VI.”
    Am I correct to understand that if they are not guilty of one count, they may still be held liable under others?
    Thank you once again for your valuable input.

    • fl_litig8r says:

      With respect to the evolution of Fla.Stat. §768.81, and when joint and several liability still applies, I suggest you read this article from the Florida Bar Magazine (I’ve linked to the relevant portion, so it doesn’t start at the beginning). While it’s several years old, it does address the latest incarnation of the statute. As you will see from the article, what you are positing is not really the indivisible injury rule — that deals with two separate accidents, usually happening closely together, which make it impossible to tell which accident caused which injuries. I think your argument may be more along the lines of derivative liability. For example, a pizza delivery place hires a driver with a horrendous driving record (negligent hiring), who then causes an accident (negligent driving). The damages from the negligent hiring cannot be apportioned from the negligent driving (and the employers’ respondeat superior liability, to be extra technical), as the negligent hiring damages derive solely from the negligent driving. So, while you have two acts of negligence and two tortfeasors, the damages are impossible to apportion.

      While your case may not be so clear cut — such if a defective product is used in a negligent manner and injury results — and both wrongs combined to cause the injury, I can see the argument being made that the damages can or can’t be apportioned, depending on the evidence presented. Maybe there are experts who can figure out what the damages would have been without one of the factors. This is likely why the judge took a wait and see approach — the apportionability may rely on the evidence presented.

      With respect to your last question, yes, a defendant can be held liable on a single count and not liable on others. He would have to pay the full damages stemming from the liability proven on that single count.

      While I don’t really mind helping, three detailed comments with multiple questions in one day is a bit much. I know it’s hard being pro se, but I can’t afford the time it takes to walk you through everything you need to know. I also don’t want that responsibility, because, frankly, pro se cases rarely turn out well. While I hope you are the exception, I don’t want to feel guilty if you aren’t.

  17. Lucy says:

    Thanks for the advice. I will look into the link your provided. I am aware the cards are definitely staked against me and this is a long shot. But, I have to at least give it my best effort.
    Thanks again for your valuable input.

  18. John A. says:

    They rescheduled the trial date 6 months from now so the new defendant can conduct discovery. Would you think that they need all of that time for discovery before they offer to settle? Again, my attorney thinks my case is iron-clad as the defendant has admitted 100% fault at a depostion.

    • fl_litig8r says:

      I can’t say how much time they’ll need for discovery before making you an offer. There could be issues of causation or the amount of your damages which need fleshing out. As I discussed in this article, a defendant admitting liability, while good, does not mean your case is practically over. Even cases involving admitted liability sometimes go to trial.

  19. Nicole says:

    I was hit by a truck driver on the clock. The accident happened in Oregon and the company is based out of Washington. The accident happened about a year and a half ago. I exhaused all my PIP and went through a year worth of medical treatment and have been left with many medical issues still that are permanant. Do trucking companies have a higher pay out or ability to pay out higher amounts than a personal insurer? Is it harder or easier to settle with a trucking company then a personal insurer? Are these companies in a bigger hurry to settle or will they drag out the settlement? Would it be wise of me to not only sue the trucking company (employer) but also the employees personal insurance? I am running out of time my two year limit is almost up and my lawyer just now sent out the first demand letter what happens if we do not reach a settlement before my two years is up? Thank you for your time and thoughts in regards to my questions.

    • fl_litig8r says:

      Typically, I’d expect a trucking company’s insurance policy to have higher limits than most individuals. I don’t believe that they will be any more or less likely to settle with you or pay you more than the insurer of a private individual. Settlement prospects really depend more on the strength of your case than anything else. I wouldn’t expect a trucking insurer to be in any particular hurry to settle — no more than a private insurer. By the same token, I wouldn’t expect them to be more likely to drag their feet, either. Again, how quickly an insurer wants to settle a case often depends on the strength of the case and the reasonableness of the demand (as well as the reasonableness of the particular adjuster assigned to your case).

      You assume that the driver has his own personal insurance, which may not be the case. Most private auto policies exclude accidents that happen while you are driving a commercial vehicle, and someone who is an employee of a trucking business (as opposed to a contractor) probably wouldn’t have a separate commercial policy aside from the employer’s. Depending on where the driver resides, and the value of your claim (if it arguably exceeds $75,000), it may be a good idea to name him as a defendant just to keep the case from being removed to federal court, which tends to be less plaintiff-friendly than state courts. If the driver resides in Oregon, joining him would prevent removal of the case from an Oregon state court. I’m sure your lawyer is already aware of these issues, though, and if your case isn’t worth more than $75,000, it can’t be removed to federal court anyway so there may be no point in adding the driver as a defendant.

      As far as your statute of limitations, your lawyer can file the complaint which satisfies the statute while still trying to settle your case. It just has to be filed before the deadline. Then you get extra time to serve the defendant, and you can even give the defendant an extension to file an answer if you think it can be settled without actual litigation. Filing the complaint doesn’t stop settlement talks. The defendant knows you have to do it, so it won’t consider the filing as an end to negotiations.

  20. John A. says:

    The defendant’s employer’s insurance company has made an offer to settle in addition to the defendant’s personal auto insurance company for the maximum amount of his coverage (very minimal).My question is does the employer insurance company make that offer based on the fact that his personal insurance company has an offer on the table? The employer’ offer seems quite low. I am sensing that my attorney has lowered her expectations of the amount that I am expecting in relation to what the insurance company is willing to offer. Do you think it is possible that she is trying to simply wrap things up considering that $15,000 less for me is not that much less for her? Just seeking that 2nd opinion from you.

    • fl_litig8r says:

      Yes, the employer’s insurer is basing its offer off the fact that you will receive money from the employee’s auto insurer. If your case went to trial, the jury would determine one amount for your damages, and that award would be reduced (most likely by the judge after the verdict is reached) by any other settlement money you had previously received. This isn’t true in all cases, such as those where two defendants have separate percentages of liability, but in a case where one defendant is liable solely due to the actions of another (like yours, which involves what’s known as respondeat superior, or vicarious liability), their percentages of fault will be identical, and won’t be divided. Therefore, the employer will receive what’s known as a set-off against the verdict in an amount equal to the amount for which you settled with the employee. For this reason, the employer’s insurer is justified in reducing what it feels your total damages are by the amount you will receive from the auto insurer when making its own settlement offer.

      As to whether your lawyer is settling your case for less than full value just to wrap things up, it’s possible. There’s really no way to tell if this is happening, of if she’s pushing for settlement because she truly feels that the offer is fair. Given that lawyer’s contingency fee percentages are rather high (usually at least 1/3), it’s a lot less likely that this would happen than in other commission-based circumstances, such as a realtor selling your house. While a realtor might only lose $1,500 (likely less) on a $15,000 reduction in sale price, a lawyer would lose at least $5,000 on a settlement reduced by the same amount.

      That’s not to say that there aren’t reasons why a lawyer would be willing to give up that $5,000. If she’s received the defendant’s maximum settlement offer, and the only way to get more is to go to trial, she might think it’s worth $5,000 to her to avoid the time, money and risk associated with doing so. She could probably work up and settle 5 other cases in the time it takes to prepare for and bring 1 case to trial, so she could more than make up for that $5,000 hit through those other cases. Obviously, you can’t.

      Of course, if it really isn’t worth it to her to bring the case to trial against the remaining defendant, she might even opt to withdraw and forgo her fee on that part of the claim entirely rather than go to trial — so be careful if you’re thinking of digging your heels in and demanding a trial. You might lose your lawyer by doing so, and it’s very hard to find another lawyer willing to take on a case in progress, especially when the new lawyer knows he’ll have to take the case to trial.

      Not to be a pushy salesman, but I think your situation would benefit from my $10 tip. It’s o.k. with me if you don’t want to buy it, but I think there’s a good chance you would benefit from it given the scenario you’ve painted.

  21. John A. says:

    Thanks for the advice. I already bought the trick last summer and thinking about using it.

  22. Abigail D. says:

    I gave my deposition as the plaintiff in a civil rights case 2 weeks ago and the defendants’ attorney ordered it. I want to review my answers and sign the transcript before finalizing it. Is the court reporter going to charge me anything to read a copy of the transcript?

    • fl_litig8r says:

      No, they won’t charge you just to read the transcript for purposes of signing/correcting it. However, they probably won’t mail you a copy so you can read it at your house. You’ll likely have to go to the court reporter’s office and read it there. If you have a lawyer, they may be willing to send a copy to his office so you can read it there — it depends on whether they trust lawyers (or yours in particular) to send the transcript back without making a copy to keep.

      • Abigail D. says:

        Thank you. I’ll ask my lawyer what to do. I don’t want to pay for my own deposition but I remembered a few mistakes I made about dates that I want to correct.

  23. jay says:

    I have to do a depo. A doctor was sexual towards me and I went along with it because I was afraid he would abandon my case if I didn’t. Is this considered consensual because I really don’t know how to answer this? The case is way more complex but I am so confused about what happened to me. All of the sexual advances happened while the doctor was treating me and during exams. I never told him no or stop and like I mentioned before, I engaged in the behavior because i was having serious health problems and I didn’t want him to stop treating me if I told him that i was uncomfortable. Also, I suffer from mental illness which he was aware of. So is it considered consensual because I don’t know the answer? Please help me 🙁

    • fl_litig8r says:

      It is unethical for a doctor to have sex with a current patient because the issue of meaningful consent is immediately called into question by the power imbalance in the relationship, as you describe here in your situation. Because doctors can’t tell if patients are consenting out of fear or duress, or if patients are truly enthusiastic participants, ethics rules forbid doctors from having sex with current patients (and many go even further to forbid any sexual relationship with a former patient which may have stemmed from the trust and knowledge gained during the time of the physician-patient relationship).

      I’m assuming that this depo is in relation to a malpractice case you brought against the doctor. The issues in your case aren’t going to be the same as those in criminal rape trial, so it’s not as important in your case that you said “no”, gave a clear indication that you did not want to have sex with the doctor, or even that you may have appeared to the doctor to be a willing participant. You just need to prove that the doctor breached the appropriate standard of care, and that this breach caused you injury. The issue of whether you appeared to have consented doesn’t really affect the question of whether the doctor breached the appropriate standard of care. Whether you actually gave consent does have an effect on whether this breach caused you injury. A patient who has sex with a doctor out of fear of losing his medical expertise would be more likely to suffer injury than a patient who had sex with a doctor because “he was hot”.

      For this reason, in a medical malpractice case, the overt signals of “consent” you may have given to the doctor are less important than your internal motivation for having sex with him. Unless you are suing the doctor for battery, it really doesn’t matter what the doctor thought about whether you consented. If sex with patient is considered malpractice under your state’s laws (yes, they do vary from state to state — some require that the sex be considered part of the “treatment”, some say that any sex is breach of the fiduciary relationship between doctors and patients), the apparent consent of the patient is irrelevant to the question of whether the doctor breached the appropriate standard of care. What matters is whether you suffered injury due to the sexual relationship, which relies more on your internal motivation for participating. Therefore, while the defense lawyers may question your apparent willingness to have sex with the doctor to try to prove that you were, in fact, an enthusiastic participant who suffered no injury from having consensual sex, they can’t really argue that “You consented. Therefore, the doctor didn’t breach the standard of care”.

      As far as your deposition goes, just tell the truth. What’s important is that you went along with the doctor out of fear, and not out of an actual desire to have sex with him. That’s why you suffered an injury. It doesn’t really matter what he thought about the situation in a typical malpractice case.

  24. jay says:

    thank you so much for answering my question! Your answer was really insightful. I have spent hours here and have learned soooo much. I already feel a little more prepared!!! I do have solid proof of his behavior towards me but I was afraid that I wouldn’t be believed because of the way I engaged and because I am considered “mentally ill.” I had a mental breakdown after this happened and was put back on medication and now I see several doctors. I am concerned that they will say my injuries are pre-existing although I had been off medication for almost a year prior to this. All the things he did to me happened during exams only and we never had an inmate relationship or dated. He was sanctioned by the medical board before, can this be brought up if we proceed to trial? I was physically injured by this doctor and it is permanent injury, it seem that my lawyer will make that the foundation of the case but I am not sure of his plan yet. I am still waiting on the lawyer to get medical records to determine if i have a case. he don’t tell me much and I understand that he just doesn’t want to get my hopes up high but my gut feeling is telling me that I may have a case.He did mention something about me having to do a depo if we proceed and ppl will have a lot of questions, he wanted to be sure that I am ready for all of this.

    • fl_litig8r says:

      You’re probably right that the defense will claim that your claimed damages actually include distress suffered as part of your preexisting mental illness, and that they should be reduced accordingly. Whether they’ll try to use your mental illness to question your credibility could depend on whether the doctor admits to the sex. These really aren’t things that you should worry about. Just tell the truth and let your lawyer argue against these types of defenses.

      It’s unlikely that the doctor’s prior sanctioning by the medical board will admissible in your case, for reasons I discuss in this seemingly unrelated article. Of course, if he was before the board on your case and he admitted to the sex, that admission would be admissible in a civil suit.

      Don’t bother getting all worked up about a deposition before a lawyer even agrees to take your case. I’m sure the lawyer was just seeing if you’d change your mind once you learned that you’d need to testify about all of this before he put in the time and effort to fully review your case. If he takes it, he’ll prepare you for your deposition. I know it’s pretty pointless to tell someone not to worry, so I’ll just tell you that you’re worrying way too early. Save it for after the lawyer agrees to take your case.

      • jay says:

        Thank you so much for helping me. I actually feel better with the information you have given. I really appreciate you taking the time to respond and I am grateful to have found this site. I will try hard not to worry.

  25. jay says:

    welp, my lawyer got my medical records and this doctor completely slandered me. I knew that he would lie in his records to some extent but not like this. I mean everything from me practically stalking him to me being a horrible patient and not following his orders. He even had the nerve to write it all with an arrogant under tone. I do have real evidence that the inappropriate behavior he say i displayed towards him was actually him doing these things to me. he noted these ill things in his notes a few years ago. the proof I have that it was him initiating these things are from more recent visits. Isn’t this considered defamation? What happen if other doctors request my records and see these things?(rhetorical). How can someone get away this? He lied on me repeatedly and said everything a doctor could say about a patient so that he could cover up his negligence. my lawyer never have any good news and stay with the poker face on. I like my lawyer, but he always telling me the worse and why is everything so gray and vague? I don’t understand. He is saying that he doesn’t want to involve the sexual misconduct because my “past” and mental history will have to be called into evidence and it won’t be good. If the sexual misconduct is not brought up then I know I have NOTHING in my hand and he will get away with all he has done to me. It is CLEAR as day that this doctor is lying on me and anyone with common sense can read the notes and see this is BS. I am the less credible witness because of my mental health,lack of education and how I grew up, while this incompetent doctor/salesman who was sanctioned by the board for being a liar will get away with what he is doing. The sad part is I never once did anything to this man to deserve what he is doing to me. If I file a complaint with the medical board will they come and speak to me directly and will the doctor get to read the complaint? Also, will they view my mental health records, or just the records from this doctor? thanks.

    • fl_litig8r says:

      Don’t file anything with the medical board without talking about it with your lawyer first. You don’t want to potentially damage your case by opening yourself up to more questioning than necessary. Even when you’re telling the truth, it’s hard to avoid inconsistencies when you’re giving multiple statements. I don’t know all of the procedures of your state medical board, but I would think that a doctor would get to see a copy of any complaint filed against him as part of basic due process. The board would want to review whatever records it felt was relevant to the issue, which in your case would likely involve your mental health records. If you refuse to provide them with a release for such records, that may affect their willingness to proceed with your complaint. Again, though, don’t do anything without consulting your lawyer first.

      Your lawyer paints everything as gray and vague because we lawyers never know what a jury will do with a case. What you think is clear evidence of the doctor lying about you may be rejected out of hand by a jury. Keep in mind that there are evidentiary rules which may keep a jury from hearing things that you assume they will hear, like the fact that this doctor was previously disciplined in an unrelated matter. Lawyers are pessimists by nature and we avoid giving guarantees to our clients because juries can be unpredictable. Don’t take your lawyer’s concerns about the abuse allegations to mean that he personally doesn’t believe you. He’s merely weighing the likelihood of a jury believing it based on the evidence he thinks he can get in front of them. If it comes down to a “he said/she said” swearing match between a doctor and a patient with a history of mental illness (though it really depends on what type of illness we’re talking about), who do you think a jury would tend to believe? Keep in mind that these people don’t know you or the doctor. On paper, this doesn’t look promising without some corroborating evidence. That’s not to say that you won’t make a compelling witness who wins the jury over while the doctor comes off as an arrogant manipulative liar, but there’s no guarantee that will happen. It would be a very big gamble for you and your lawyer to take.

      With respect to a potential defamation claim based on what the doctor wrote in your records, I don’t see much added value to it. If you can prove that the doctor is lying, then you should prevail on your underlying abuse claim, and any additional damages caused by the defamation probably wouldn’t add much to your case.

  26. jay says:

    thank you so much for getting back to me. I get it now, because I was really concerned about my lawyer and why he always seem to be so neutral. The truth of the matter is I hate what i am going through and I’m angry, but I know that being angry is not going to help me. It is so hard for me to face reality right now and I might have to walk away empty handed or with very little compensation.I am permanently crippled now. To have all this happen to me and then read the lies he wrote in his medical records really was a low blow. I can not talk to anyone about this(not even family) because of fear that they may later be called to testify. I really appreciate you taking the time to answer my questions, you have no idea how helpful you have been to me. thanks again.

  27. jay says:

    I don’t mean to keep bothering you but I need help again. Would it be considered unethical for my lawyer to tell the doctors lawyer that I plan to file a complaint with the medical board if the case is not settled? And do his lawyer have to tell him of my plans to do so? It is my understanding in some cases that the doctor has power to have the case settled if the insurance policy allow it. I have video evidence of this doctor’s sexual misconduct and professional misconduct so there is no way for him to lie his way out of this, but as I mentioned before it seem that my lawyer does not want to bring the sexual abuse up for whatever reason. Remember previously I also mentioned that he falsified my records some years ago but the video will show that he came on to me during my last visits and initiated all these things. This is why I don’ t understand why my lawyer would want to exclude it because that makes the doctor look exactly like what he is, a liar! Now I am wondering if my lawyer will at least bring it up in the deposition to trip him up. I am sure this doctor is going to lie about it, but then that would open the door to having my other medical records admitted into evidence even if he does. I am going to be put under a microscope and made out to be some vindictive “stalker” while this shady doctor get away with what he is doing. I am literally disfigured because of his incompetence, but I know they really ain’t going to be trying to hear all of that though. On a brighter note, I had a tarot reading from a psychic and she said I am going to

    • fl_litig8r says:

      I’m not sure what state you’re in (I checked the prior comments and don’t see that you mentioned it), so I can’t say specifically whether your state bar’s ethics rules forbid your lawyer from threatening a medical board complaint against the doctor if the case doesn’t settle. In my state (Florida), the ethics rules specifically forbid threatening (1) the bringing of criminal charges against anyone and (2) the filing of a bar complaint against a lawyer in order to gain advantage in a civil case. They don’t mention anything about threatening a claim against a doctor with the medical board, but from the gist of this rule, I’d expect that they would consider that unethical as well.

      The part that raises the ethics concerns in your inquiry is you adding “if the case is not settled” to your threat, which makes it sound like you’re using the threat of a medical board complaint solely to gain advantage in the civil matter. While this might sound like a good idea from a strategic standpoint, state bars tend not to look too favorably on extortion. Their opinions are typically that crimes and ethics violations should always be filed whenever appropriate, and they should not be overlooked just to get more money from a settlement.

      If your lawyer were to try to raise this issue at all, I would suggest not making it an explicit threat. Perhaps he could mention in an offer to settle that your offer includes confidentiality that would preclude you from discussing this matter with anyone, including the state medical board, absent a court order. Even this would be somewhat risky unless the defendant was the one to bring it up first.

      With respect to your psychic, I had a fortune cookie once while I was in law school that said “You would make an excellent lawyer” (seriously), so maybe your psychic is right. 😉

  28. Fern says:

    I am litigating pro se and, unfortunately, have to depose (per order of the court) a person that I consider a friend, but who works for defendant. My understanding is that as pro se, I can always contact witnesses directly (and parties), so I was wondering if I should/could call this person before the deposition to see where he will stand. I haven’t talked to him since I left, but I’m afraid contacting him might violate any laws or rules. Could you please shed some light?

    My second question is that I have been asking certain non-party witnesses that I don’t necessarily want to depose for affidavits that show that defendants’ workers deposition testimony was not true. Can I always file these affidavits with the court? How should I go about this? Would it be through a Notice or Motion or something else? Alternatively, if I have documents that also show that deposition testimony is not true how could I go about letting the court know?

    Thank you so much! I WISH you could be my lawyer!! 🙂

    • fl_litig8r says:

      1. The prohibition against speaking to represented parties — and in this case, an employee of a party defendant who has direct involvement in the case would be considered a “represented party” — stems from the state bar’s attorney ethics rules. Because you aren’t a lawyer, these rules don’t apply to you. Therefore, unless the court has entered an order prohibiting you from contacting represented parties, I would say that you can. Of course, the lawyer for the defendant may have already instructed this person not to speak to you, so he may not speak to you anyway for fear of having his discussion (against counsel’s specific direction) reported to his employer. If this person does speak to you, I would hope that you would protect him by not mentioning that discussion in front of his employer or opposing counsel.

      2. These affidavits would really only be useful in support of, or more likely, in opposition to, a motion (most likely opposing a motion for summary judgment filed by the defendant). They can’t be used as testimony at trial, so there’s no point in filing them unless you’re using them for a specific purpose. If you do need to file them in relation to a motion, you could do it via a Notice of Filing, which is just a short, kind of generic notice that you are filing certain documents, followed by a numbered list of documents that provides a very short description of what you’re filing. The documents are then attached to the Notice, separated by numbered tabs (or an otherwise blank page with just a number on it) that match the numbering in your Notice.

      The court doesn’t care if you have evidence that the deposition testimony of the defendant’s witnesses is untrue until the defendant actually tries to use that testimony in some way. Any documents you file now for the purpose of challenging their testimony, without the defendant having sought to use the testimony either via motion or at trial, will be ignored by the court. I’d wait until the defendant tries to use this testimony before springing your opposing evidence on him. Filing it now is both pointless and bad strategy, because you’re giving the attorney time to come up with an answer to your evidence before he’s even shown his hand as to how he intends to use his own witnesses’ testimony.

      As a side note, you won’t be able to use affidavits at trial as either direct evidence or to try to impeach another witness’ testimony. You’ll need to bring those witnesses who gave you affidavits live to testify. If they change their story at trial, you can use their own affidavits to impeach them, but you can’t use the affidavits to impeach another witness at trial.

  29. James says:

    Didn’t see an article on being the one who notices & asks the questions at a deposition – hope this is the best place to put it. Assume a defendant has sworn to untrue statements in affidavits and interrogatories, and you are reasonably sure that defendant’s current and/or future employees (or at least most of them) will tell the truth. Are you better off deposing the defendant first, then the employees — to lock in more false testimony, then get the truth on the record? Or, are you better off deposing the employees first, then the defendant — to be able to come at the defendant during their deposition with the testimony of their employees? My state’s court rules do NOT have a rule addressing “second bites at the apple” of re-deposing someone. But, I have seen my judge (in other cases) enforce the idea that someone can only be deposed once. Not sure if significantly contradicted testimony arises to allowing a subsequent deposition, but I’m guessing not, because it seems like someone could almost always make that case in some way to get around the general rule. I of course no there’s no perfect answer to this question, just looking for general strategy and impressions.

    • fl_litig8r says:

      You didn’t see an article about how to ask questions at a deposition because my site is really not aimed at pro se litigants. I’ll write articles to help people try too settle their cases on their own (and even then, there are many times I wouldn’t recommend it) but I don’t want to encourage people to actually try to litigate cases on their own. At best, most can hope to be an annoyance to the defendant for a while before they ultimately lose. Of course, everyone acting pro se thinks he or she is one of the rare few who may be able to do what it takes lawyers years to learn under the supervision of an experienced lawyer. I don’t want to encourage that line of thinking by writing “litigate it yourself” articles. I’ll answer some questions for those already in this position, but I’d never write an actual article that might lead someone who can still hire a lawyer to think they have enough info to litigate on their own. Sermon over.

      As to your actual question, I’m always in favor of catching someone in a lie under oath rather than trying to make them testify honestly in the first place by showing them in advance that I can prove that what they plan to say can be disproved. The more serious the lie and the more people/evidence I know I can get to contradict the liar, the better. Jurors tend to punish parties who they perceive as liars, many times even if the lie is something that doesn’t go to the heart of the case. People who lie under oath are basically trying to play the jury for fools, so when the jury catches them, they are rightly insulted and do what they can to express their displeasure.

      Other lawyers may have different opinions on this matter, as it really is one of strategy. There is no right or wrong answer. I’ve just stated my own strategic approach.

      I really don’t know why you’d want to redepose the liar. Let the lie just sit there until trial — and use it during settlement negotiations. Ask him the same questions at trial, and if he gives a different answer, trying to match his employees’ testimony, impeach him with his prior deposition testimony. Why would you want to give him the chance to get his “fixed” testimony out before trial, weakening the impact of the lie? Unless this is a situation where him testifying in accordance with the other employees would entitle you to summary judgment, I see absolutely no benefit to you from taking a second deposition to get him to tell the truth.

  30. Renee says:

    I appreciate the info you have provided. I am not the actual target audience for this but I am hoping you can help me. I have been subpoenaed for a deposition in my boyfriend’s worker’s comp case. I do not have an attorney. His lawyer is unable to speak to me because I am not her client. I have been told by doctors & others that this is unusual. I have also been told that this will be very uncomfortable for me & that it is quite possible that they will be asking intimate questions about our sex life. My question is how detailed can they be? I am an honest person. I am also extremely private & modest. I don’t know how I can not become flustered or embarrassed responding to this type of questioning. I have no one to speak to in regards to this. Is there any reason I should hire an attorney?

    • fl_litig8r says:

      You don’t need to hire an attorney. Your boyfriend’s attorney can speak to you, both legally and ethically. I don’t know why you’ve been told otherwise. Think of this in another context — say you were a bystander witness to a car accident. Do you really think the plaintiff’s or defendant’s lawyer can’t call you and ask you questions? (Answer: they can, just as either lawyer in this case could ask you to talk with them informally and outside the other’s presence — you can choose not to speak with them without being deposed, but they can ask, and if you agree they can talk with you all they want). It could be that your boyfriend’s lawyer doesn’t want to speak to you so that if you’re asked during the deposition whether she talked to you about your testimony you can honestly answer no, but I’d just be guessing as to her reasoning.

      I don’t expect your sex life with the claimant to be discussed much, if at all, at the deposition. Your boyfriend has a workers’ comp claim, which doesn’t allow for mental anguish (from damage to his sex life, for example), so the only possible relevance his sex life has to such a claim would be if he’s doing things that he shouldn’t be capable of doing based on his claimed impairment. If they do ask about it, I doubt that the defense attorneys are going to want any details. Contrary to what may be popular opinion, most lawyers really don’t care to ask about people’s sex lives, and when it’s required (such as when a loss of consortium claim is brought) we tend to want to keep it to broad strokes and not get super detailed unless the plaintiff chooses to take it there. The defense has nothing to gain by embarrassing you, so if they do ask any questions about sex between you and the claimant, I would expect that they’ll do it as tactfully and briefly as possible. Unless your boyfriend is claiming some pretty crippling injuries, such that one would expect that he’d be incapable of sexual activity, I’d be kind of surprised if they brought it up at all. Technically, they could go into details, but I wouldn’t expect it, and your boyfriend’s lawyer will be there to object (even though you’re not her client) if their questions cross the line.

  31. Renee says:

    Thanks so much for your timely response. I sincerely appreciate the information. You are correct about the reason my boyfriend’s lawyer doesn’t want to speak to me. She stated something very similar to me when I called and asked if I could speak to her.

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