The Plaintiff’s Deposition — Be Smart and Be Prepared

Your attorney has told you that your deposition has been set by the defendant’s attorney (make sure the date and time are good for you — you should have been consulted about this before it was set, but if for some reason you need the date and time changed, the sooner you speak up the easier it will be). You are nervous. You don’t know what to what to expect. You don’t want to screw it up. These feelings are natural. Take a breath and read on. By the end of this article, you should feel more comfortable with what you need to do to give a good deposition.

What the Heck is a Deposition?

Your attorney should let you know what a deposition is and what questions to expect. However, if you still don’t know, a deposition in its most basic form is a series of questions the defendant’s attorney asks you to answer under oath which are “reasonably calculated” to lead to evidence admissible in your case. The most common places for depositions are either at your attorney’s office or at a court reporter’s office — you aren’t going to court just yet. There will be no judge present.

The court reporter is hired by the person taking the deposition to create a written transcript of everything that it said during the deposition word for word. She (or he, but I’ll use “she” because I’ve met far more female than male court reporters) is not an advocate for either side. She has no dog in the fight. Her only job is to administer the oath (e.g., “Do you swear to tell the truth. . .”) and write down everything you and the attorneys say during your deposition. She uses a coded shorthand on a machine that looks like a tiny typewriter. If you were to look at what she is typing directly, it would look like gibberish. Rest assured, she can read it. Think of the court reporter as just a human tape recorder (no offense, court reporters).

The usual set up for a deposition is a conference table with you seated directly next to your attorney and opposing counsel seated across from you. The person/people you are suing have the right to be present at your deposition (though they won’t participate directly). Don’t read anything into them being there or not being there. There are plenty of reasons why parties would want to show up at depositions. My best advice is to ignore them. There are only two people to which you need to pay attention: your attorney and the attorney deposing you — in that order.

Can My Attorney Feed Me Answers During My Deposition?

No. If you are confused as to what a question is asking, ask the defense attorney to rephrase it. If you think that an answer you will give may involve the attorney-client privilege, you may consult with your attorney about the privilege issue before answering. Your attorney cannot give you answers, even to stupid innocuous questions. The deposition is based on your knowledge and memory alone, not your attorney’s.

What Should I Wear to My Deposition?

For most plaintiffs, I recommend dressing “business casual”. Keep the jewelry and perfume/cologne to a minimum. Don’t go tanning. You don’t want to dress too nice, as you may look ready for a job interview, which is a message many plaintiffs don’t want to send.

The Defense Attorney Seems So Nice!

While most people have been conditioned from television and movies to believe that opposing counsel will be openly hostile to you at all times, this hardly ever occurs in real life. In fact, the best tactic a defense attorney can use in taking your deposition is to be as nice as possible to you. Why? To get you to talk more, of course. Expect a smile, a nice handshake and a “nice to meet you” when you are introduced to the defense attorney. The defense attorney may even joke around a bit. Be nice and cordial back to the defense attorney, but keep repeating the following in your head once the deposition starts:

1. This person is not my friend,


2. We are not having a conversation.

Number 2 is particularly crucial. A deposition can quickly start to feel like a conversation, with each side talking, occasionally laughing, and the defense attorney seeming genuinely interested in everything you have to say. The only problem with conversations is that people tend to start to volunteer information, which you absolutely do not want to do in your deposition. No matter how nice the defense attorney seems (and it may be genuine), never forget why you are there.

The Defense Attorney is a Jerk!

If you are unlucky enough to be deposed by a posturing buffoon who insists on trying to get a rise out of you with every question, the best antidote to this is to not give him what he wants.

As a general rule, you do not want to appear angry or frustrated at your deposition. Avoid sarcasm (which may not translate well in a written transcript, anyway). You want to come across as the sympathetic victim that the jury would want to compensate. You don’t want to come across as the foaming-at-the-mouth lunatic on COPS last night who wound up getting tased.

Why Am I Being Deposed?

There are three main reasons a defense attorney deposes a plaintiff:

1. The defense attorney cannot speak to you directly once you have an attorney, so this will be his only chance to directly question you before trial.

2. The defense attorney is not only evaluating your answers, but how you will be as a witness at trial. Are you likable? Do you come across as honest?

3. It is much harder to lie or conceal something during a deposition, where follow-up questions can trap you should you choose to go that route.

Can’t the defense attorney get all the info he needs from my medical records, accident report, interrogatory answers and document production?

Ask a Lawyer Online.  Get an Answer ASAP.

For the most part, yes, and know that the defense attorney will have all of these things before your deposition. However, the three reasons I just listed above still apply, and nothing beats getting your answers directly from the source.

Your Deposition is Not Your Time to Tell Your Story

Most plaintiffs erroneously believe that the deposition is their chance to tell their side of the story. Wrong! The deposition is the defendant’s chance to find out as much information about your case as possible. If the defense attorney fails to ask you about something that you consider important, great! You can volunteer this information at any time after the deposition, or wait until trial and surprise him.

I am not advising that you withhold information in response to a question which has been asked. I am advising you to not volunteer information if a question has not been asked. Your day to tell your story is at trial, when your own attorney will be asking you questions, not at your deposition.

What Should I Review Before My Deposition?

At a minimum, you should review your Complaint (the document your attorney prepared to kick off the lawsuit), your interrogatory answers (written answers to questions submitted by the defense attorney which you signed under oath), and the accident report, if there was one. Notice I said “review”, not “memorize.” Mainly, you want to double-check and make sure that there are no errors in these documents which will require correcting or explaining during your deposition. If you find any errors, let your attorney know immediately. It is always better to correct these before the day of your deposition.

If everything you’ve reviewed is accurate to the best of your ability, great. It should be much easier to remember then, as the truth always is.

Your attorney should have a meeting with you prior to the day of your deposition to prepare you and let you know of any areas of particular concern that may be specific to your case. For example, if you had a prior injury to your body before the accident in this lawsuit, be prepared to talk about that.

How Long Will My Deposition Take?

This varies from case to case and most often depends upon the style of the defense attorney. Some are more long-winded than others and feel the need to explore seemingly irrelevant areas of questioning at length. Expect that it will be at least two hours, with most lasting between 2-4 hours. People with more complicated medical issues or histories can expect it to be longer than that. This is a question even your own attorney may not be able to answer, unless he is familiar with opposing counsel.

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The Worst Thing You Can Do in a Deposition : Lie

No matter how foolproof or elaborate you think a lie may be, the odds of you eventually getting caught — given all the tools available to opposing counsel during litigation — are higher than you think. The risk of being caught far outweighs any benefit you may receive from lying under oath. If you are caught lying under oath you can expect your lawsuit to be dismissed and you could possibly incur monetary sanctions (like the other side’s attorney’s fees). If you exaggerate your injuries, expect that surveillance will catch you doing something you claimed you couldn’t do. Lawsuits can take years to resolve. It is awfully difficult for someone to consistently fake difficulty walking, lifting, etc. over such a long period of time. Aside from surveillance, what will your friends, neighbors, co-workers, etc. say about what you can and can’t do? There are far too many ways to get caught. For example, do you think former President Clinton ever imagined that Monica Lewinsky would keep her blue dress with all of its DNA evidence preserved?

Most plaintiff’s attorneys can work with the truth about your physical condition to recover you a fair settlement or judgment. No plaintiff’s attorney will be able to save your bacon if you get caught lying in your deposition.

I do want to draw a distinction between “lying” and “saying something that turns out to not be true.” If your memory is incorrect, like thinking that your accident happened on a Saturday when it in fact happened on a Sunday, this is easily corrected. Of course, this brings me to my next topic.

The Second Worse Thing You Can Do in a Deposition: Guess

Guessing during a deposition should be avoided at all costs. Guessing most often happens when a Plaintiff is asked a question to which he would feel embarrassed not having an answer. For example, “How long were you at the red light before you were hit from behind?” “What color was the defendant’s car?” “What was the substance you slipped on at the grocery store?”

Get over your fear of feeling stupid for not having answer to what seem like simple questions. It is far better for you to say “I don’t know” or “I don’t remember” than to simply guess and be wrong. If you were to say that the color of the defendant’s car was black, when it was really canary yellow, that inaccuracy will call into question your entire memory of the accident. When you admit to not knowing something, it improves your credibility as to those facts you do remember.

If you are asked to guess, estimate or “ballpark” something during a deposition, make sure you’re answer includes the fact that this is what you are doing: “I’m not 100% sure, but I’d estimate that I was sitting at the light 5 seconds before the defendant hit me.”

Dealing with Inaccurate Records

More often than one would think, inaccuracies find there way into accident reports, medical records, or other written records. These can be as benign as getting a date wrong to as severe as stating that you weren’t wearing a seat belt (when you were) or that you have a prior injury, which you don’t. Do not be intimidated by inaccurate records.

Frequently, the defense attorney will stick one of these records under your nose during the deposition and ask you to explain it. “Now why would Dr. Jones say that you were an unrestrained driver? Where would he have gotten that information, if not from you?” The easiest way to deal with these records is to stick to your guns as to the facts and not try to explain records that you didn’t create: “I told Dr. Jones that I was wearing my seat belt, because I was. I have no idea why he would write, ‘unrestrained.’ It must be an error.”

Unfortunately with medical records, errors that occur early in the treatment have a habit of being repeated in later records, as the doctor takes facts from earlier patient histories and includes them in later ones. So if the doctor writes “unrestrained” on your first patient visit, it’s probably going to be repeated over and over (and maybe even by other doctors who took their histories from the first doctor’s records). Don’t let this dissuade you from telling the truth in your deposition. Your attorney can straighten the issue out with your doctor after the fact, and hopefully have your records corrected.

Videotaped Depositions

If you are told that your deposition is going to be videotaped, don’t worry. There are many reasons for a defense attorney to do this which may be entirely unrelated to your case. Some firms videotape all plaintiffs’ depositions. Some insurance adjusters want to be able to watch your videotape so that they can personally size you up as a witness.

The video deposition can actually be your friend. A defense attorney is much less likely to behave like a jerk on videotape. Just remember not to pick your nose.

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Former Defense Attorney Tricks

As a former defense attorney, I’ll fill you in on two of my favorite tricks when deposing plaintiffs:

1.  “The Silence Game” – After a Plaintiff is done answering a question, I’d wait for 10-15 seconds (usually I’d pretend to be looking at my notes) and see if the Plaintiff would spontaneously start talking again. It worked with alarming regularity. This trick preys on people’s natural aversion to awkward silences. Silence has pressure, and it makes plaintiffs want to fill it. Don’t fall for this. If you’re done answering the question, and the defense attorney is silent, let him sit there until the awkwardness makes him uncomfortable enough to ask another question. If your deposition is not videotaped, there will be no record of the silence. The written transcript will make it appear that you just gave one long answer without any break. Don’t play the silence game.

2.  “The Surveillance Game” – A partner at the defense firm I used to work for gets credit for this one. The defense attorney goes to the deposition with many folders, one of which is clearly marked “Surveillance”. It does not contain surveillance reports. Rather, it just contains a few random typed papers. At an appropriate point in the deposition, the defense attorney conspicuously pulls out the “surveillance” folder and asks the plaintiff to tell him everything they did the preceding weekend, all the while pretending to compare the answers to the junk in the folder. This ruse is just to discourage the plaintiff from lying about any physical activities he may have engaged in. It works fairly well, as the plaintiff is scared to death about leaving anything out. So just be aware, not every “surveillance” folder is surveillance.


You will be nervous before your deposition starts. Even attorneys get nervous when they get deposed. You should calm down quickly when it starts and you get into the groove of answering questions. Keep in mind that the deposition is not an endurance contest. You can ask for breaks at reasonable times (1 10-minute break per hour is not unreasonable) so you can use the bathroom, smoke, stretch, get refreshments, or whatever. If you have an injury causing low back pain, or anything which makes you uncomfortable during the deposition, let the other attorney know. Tell him that you will need to shift/stand or whatever makes you feel comfortable at times during the deposition, and that he can keep going as long as you don’t ask for a break. There’s no rule that says you have to sit for your whole deposition (though it is courteous to do this if it doesn’t cause you discomfort).

Final Note – Always Read and Sign Your Deposition!

At the end of the deposition, the court reporter will ask your attorney if you want to read and sign your deposition or waive that right. Let your attorney know you want to read and sign! What this means is that after the written deposition transcript is prepared, you will get the opportunity to read it and correct errors. Many people (and some lawyers) believe that this only applies to errors made by the court reporter. Not true. You can change any answer which you later realize is incorrect or incomplete. Note, however, that changes to your own errors will appear on a page at the end of the deposition, known as an “errata sheet.” The original answers will remain, but you are much better off making an early correction to your deposition than you are waiting for this error to surface at trial. If you change something important, like adding an injury, the defense attorney may want to depose you again on that subject alone, as he was not afforded the opportunity to do so at the first deposition.

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61 Responses to The Plaintiff’s Deposition — Be Smart and Be Prepared

  1. kim says:

    Well, my day in the hotseat is next Friday, the 4th. Having gone to all the defense depos, I know the attorneys, and feel as confident as one can in a situation like this. (no, they are not my friends!) I just hope it does not take over one day! They will not have had time to review our discovery responses by then, since they waited until the very end to get into the game. Trial is set for the 14th, and it is the 3rd re-set, so will probably be a “go.” We are getting our docs to them on Tuesday! Any advice on how to control facial expressions? I have a horrible poker face! Have tried biting my tongue, concentrating on abdominal muscle contractions, etc….any other ideas?


    • fl_litig8r says:

      Botox injections before the depo? :) If your depo is being videotaped (which is the only reason to worry about facial expressions), hopefully the presence of the camera will be enough of a constant reminder to try to keep your expressions under control. You could also try negative reinforcement leading up to the depo. Wear a thin rubber band on your wrist and try to control your expressions leading up the depo. When you goof, snap your wrist (not too hard). Try saying angry things in the mirror while not showing your anger.

      As long as your tone remains fairly neutral, that should make up for any facial expression faux pas. There’s nothing more infuriating than arguing with someone who keeps their calm and talks softly while you’re losing your shit (I learned that lesson at a young age from my evil older sister). Make it a game if the defense attorney raises her voice or becomes especially rude to be as polite and calm as possible — see if you can get her to shout. Point out when she’s getting angry so that it appears in the written record, e.g., “Please don’t raise your voice [use that tone]. I’m not trying to upset you. I’m just trying to answer your questions.” Let her beat on you while you just suffer through it — don’t fight back. Jurors punish bullies. Come to think of it, you may want to save some of this for trial. Just use the depo to practice a bit.

      • kim says:

        Well, they got yet another re-set (4th one!), and then postposed the depo. Looks like I’ll be a plaintiff forever.

        • fl_litig8r says:

          I really wish judges would be less generous with continuances, especially after the first one. I get the feeling that many just want to clear their dockets and think that the more a case is continued, the more likely it is to settle. It just adds to the public’s negative impression of the justice system.

          • kim says:

            Thx for the support. I’ve been offered a job with my lawyer IF this ever ends, (and if I can afford what will probably be a pay-cut), and was sort of looking forward to it. Difficult to believe that someone can know everything there is to know about me and still want to hire me. LOL!

          • fl_litig8r says:

            Maybe it’s your self-deprecating sense of humor that won him over. ;)

  2. Diane says:

    Hi again just like to ask a few questions, frist of all my Attys met with the other attys on June 19th the outcome of this one is that the Judge order another depo for me on Aug 2. This is the thrid one. My lawyer stated that it was because I had a second surg to my right Ankle in April 2012 and the judge also ordered another IME. I want to knew what different questions will they be asking me then the other two depos and will I have to go over again the questions from the very beginning of this case. The judge ordered the next hearing for Sept 25 2012. When will they talk settlement? This case as been ongoing since April of 2009. Also My doctor stated that I can only work partime not fulltime anymore( i’m a nurse and the injury was to my rt ankle)
    will that benefit me?

    • fl_litig8r says:

      Typically, “update” depositions will only cover new issues — in your case, that would be your medical treatment and condition since the last deposition. However, whether the defense lawyers will delve into areas they could have covered at prior depositions will depend on how much leeway your lawyer and the judge afford them. I wouldn’t expect them to try to cover the same things they did during the first and second depositions. First, this would be highly objectionable (“asked and answered”) and the judge would probably limit the scope of the deposition if your lawyer needs to involve him. Second, there’s no real reason for the defense lawyers to waste time covering things that have already been covered.

      As to when they will talk settlement, that won’t be until after your third deposition and the new IME, at the earliest. This, of course, is assuming that your treatment is finally done and you’re finally at MMI. Neither side can accurately value your case until that happens.

      With respect to your doctor limiting you to part-time employment, this should help increase the value of your case, especially if this is a permanent limitation — cases involving a permanent disability are clearly more valuable than those involving a temporary disability.

  3. kim says:

    Well, just got off the stand. Confused about what they did NOT ask. We provided 10,000 pages of docs, no questions about those, or the covert recordings i provided, or about the psychological impact of their actions. I don’t understand the lack of questions in these areas????. Unless they think they have a slam dunk for summary judgment (not likely) and can question me again sometime after that?

    My attorney said i did well. It is not easy to stick with the game plan. The urge to tell the story is strong. And it actually got to be fun answering only the question that was asked and forcing them to keep rephrasing to get the answer to the question they were meaning to ask!

    Thankfully they used the lady, and not the man. He is charismatic, and would have had better luck. She has been standoffish from the first time I met her, and this lack of personality worked in my favor!

    Mediation this Monday. Cross your fingers…….
    thanks again for being here!

  4. Diane says:

    Can you please answer additional questions for me on my Case. One important question is that in regrads to MMI. What if the injury I have never gets any better then what it is today. What Happenns if my doctor just keeps sending me for therapy but I dont heal is that going to drag the case on. Second Question in regrads to my past W’2’s what is the timeframe that They ask back and to what year after do they ask for and whats the purpose of this?

    • fl_litig8r says:

      MMI doesn’t mean that you’re completely healed, or that you won’t need further treatment. It just means that you will have no significant improvement from future treatments, though future care may be needed to maintain your current level of health. So, there will come a point where your doctor determines that you’re not going to get much better, even if further therapy is warranted. Sometimes reaching MMI can take years, especially in cases like yours involving multiple surgeries. It will happen, though.

      For your second question, I refer you to this article.

  5. Diane says:

    I was just told by my attys that the motion on Sept 12th is for the defendants to try to get out of the settlement. The defendants are the city of NY and they tried this before, after my frist Surg. My attys already provided proof that they are involved. Is there anything I should worry about. I feel in a pothole in April of 2009. Can they be discharged from the case after all this time.

    • fl_litig8r says:

      Without seeing the motion and the alleged grounds for it to try to get out of the settlement, I can’t even speculate as to the likelihood of the motion being granted. Typically, it is very difficult to get out of a settlement, absent fraud (and sometimes “mutual mistake”), so unless the city has one doozy of a reason, the odds are against it.

  6. Diane says:

    I’m sorry I misled you in saying The city of Nyc settled already in my case what I meant to say is that. The city is asking for this motion on Sept 12th To get out of the lawsuit that I filed against them for falling in a pothole in April of 2009. Can they get out of the suit or is this just a another delay to settle. I dont know if your aware of the Pothole law in NYC. Like I said they tried this before my second surg or after my frist surg, it seems like everytime I have a surg they do this what can you as an atty think they would won this motion and if they do what next? I’m also suing A gas company for the actual work that was done and the city for the pothole. Please clear this up for me and to the best of your knowledge again do I have anything to worry.
    Thank You

    • fl_litig8r says:

      I doubt that the City is using the motion just as a delay tactic, mainly because there are so many ways to delay a case that don’t involve the amount of work required to request summary judgment. I’m vaguely familiar with NYC’s pothole laws, and from what I’ve read there are two attractive grounds under which the City could ask for summary judgment. First, if the City did not have prior written notice of the pothole, it isn’t liable. Second, a 2003 law changed primary responsibility for many New York sidewalk potholes from the City to the adjacent landowner. Without knowing the specifics of your case (which I’m not asking for) or the basis of the City’s motion, I couldn’t say whether it is proceeding under one of these two arguments. If it is, then it could win, assuming the facts support either argument.

      So, I can’t say you have nothing to worry about. However, I’m sure your own lawyer is aware of these major hurdles and has a much better feel for the City’s summary judgment chances.

  7. Judy says:

    I am being deposed next week. Can I record it? Can I video it?

    • fl_litig8r says:

      If you really want to do this, you should immediately cross-notice the deposition and include the fact that you will be video/audio taping it. If someone will be manning the video camera, you likely have to disclose who the person is on the notice. Your state rules of civil procedure may have the specific things you need to list to set a video deposition in its general deposition rule. Your state may not allow unlicensed videographers to tape depositions — my state of Florida allows anyone to do this, as long as they are identified on the notice.

      To cross notice the depo, basically copy all the information on the defendant’s depo notice (changing the title to “cross notice” and add “videotaped” before the word deposition). Then change the info about who is noticing the depo to you and add any information you need to regarding the person videotaping it (if it will just be you setting up the camera and letting it record, list yourself).

      However, before you do this, I’d advise against videotaping your own deposition. It’s more likely that the defendant will wind up using the video than you (you will have to copy it for him if he requests it). To me, it sounds like you’ll be handing the defendant a gift — a video depo without the extra cost of the videographer. The only reason I’d even think of videotaping your own depo is if you expect the attorney to be a complete ass (most won’t be), and you want video proof of his antics to show a judge should you decide to suspend the deposition due to his harassment — suspending a depo is something you’d only do in extreme cases, as doing it without good cause could result in you having to pay for the continuation of the depo at a later date.

      I wouldn’t video it just for your own use. Audio recording would be safer, if that is your reason. You’d still want to cross-notice the depo for audio so that the defendant can raise any objections before the date of the depo. If you just try to video or audio record it without prior notice, you could wind up in hot water with the judge.

  8. lostbunny says:

    I had my depostion and it was rough. This was my first time being in a deposition. I felt like a dear standing in the street with headlights coming my way. My plaintiff attorney sent another attorney from the firm I never saw before who showed up 15 minutes to define what a deposition is, etc and my reports. I came to the site 40 minutes early. I was so nervous and never knew all the personal questions that they can ask. I told the truth but felt each question asked was peeling off a layer of clothes. So I went in full dressed and came out naked. Im makeing jokes now but during the deposition I was serious.
    I have a question for you, At the beginning of the deposition the defense attorney asked if I had taken any medications before the depositon. I stated the medications and then the defense attorney asked if the medications would effect my testimony. I said no but I believe the medication did effect my testimony. I looked up the side effects of both medications and both of them is trouble concentrating. Why did the defense attorney ask me this questions?

    • fl_litig8r says:

      He asked about the medications to prevent you from later claiming that the medications affected your testimony. If you chose to “read and sign” your deposition, you can change any answers that you feel were incorrect or incomplete. However, this may result in the defense attorney deposing you again to ask about the changes.

      If you didn’t choose to read and sign and still maintain that your answers were affected by your medications, know that telling the defense attorney this may also result in you being re-deposed. So, be sure that you want to go that route before discussing this with your lawyer. Just because your medications list possible side effects that may affect your ability to concentrate doesn’t mean that you were not able to give an accurate deposition (most people find it difficult to concentrate during depositions due to the stress alone). If, after reading your deposition, you see some huge errors that need correcting, it may be worthwhile to make this an issue. Otherwise, you should probably leave things as is.

      • lostbunny says:

        I froze in the deposition and could not remember or answer the questions. My mind drew a blank. I could not think. Once I saw the picture of the incident. I shut down.
        By the 3rd hour, even after breaks, I could not even look at the defense attorney when they asked a question. I would close my eyes and try to think it through and answered with my head down and spoke to the table as I tried to answer the question. Even as hard as I tried nothing would come out. I would say right now I do not recall. Even when my attorney asked something in the end. I wasn’t sure.

        I trully wished I would have read your website before the deposition. In the end the defense attorney asked the court reporter if she needed to go over any corrections with me. The court reporter said no.
        My attorney did not say or ask if I wanted to go over the transcript. He left out of the room to make a phone call. Did not mention it. So this was not mentioned.
        I need to use Google alot more. Thats how I found your wonderful website. Thanks.

        • fl_litig8r says:

          Well, the court reporter doesn’t get to make the “read and sign” decision for you. If you or your attorney didn’t waive it, you should have him contact the court reporter to let her know that you do want to read and sign. I wouldn’t panic before actually reading the transcript. You may have done fine. If you didn’t waive reading and signing, changes can be made to your answers without too much difficulty, though the original answers will remain for reference and you may have to explain your changes if the defendant wants to re-depose you as to why you changed your answers (and any followups that might result from such changes).

  9. lostbunny says:

    I sit in a wheelchair and the deposition was over 4 hours long. At the end is when the meat of describeing the incident and I could not concentrate for the likes of me? I was tired, in some moderate pain, had defense repeat stuff. Out of it, usually when I take the medication I take a nap.

    • fl_litig8r says:

      As I said in my response to other question, you should really review the deposition transcript to decide whether you want to make this an issue. If you were getting tired or experiencing pain, you could have asked for a break in the deposition (usually 15 minutes or so) to try to get yourself together. If you were still unable to go forward after a break, they might have agreed to continue the deposition at a later date. It may be that you didn’t know you could do this, given that your lawyer didn’t adequately prepare you for the depo, but if you bring it up now, it will look suspiciously like you are just trying to get out of answers with which you are unhappy. You need to decide whether your answers were so off that you need to make this an issue, after reading the deposition and talking with your lawyer.

  10. d mays says:

    my soon to be ex wife and her attorney scheduled a deposition and then they didn’t show up. In fact no one was even in the office. I wrote up a letter stating these facts and had them notorized and witnessed at a tax firm directly next door to her lawyers office. I also called the office number and spoke with the receptionist who said she was out of the office. She took my message and that was it. The receptionist called the next day and said she was out sick like it was her fault no one was there. She said that they were going to have to reschedule. I am thoroughly irritated. My time is also valuable and want to know what my recourse is.

    • fl_litig8r says:

      Unfortunately, it’s unlikely that there’s anything that you could do that would be worth your time. If you had a lawyer, there’s an outside chance that you could ask for reimbursement of the attorney’s fees you incurred for the deposition. Even this would be less likely in the event of a mistake, as opposed to an intentional act. From what his office told you, it sounds like he’s already got an employee willing to take the blame for the “scheduling error”, so proving that this was an intentional “no show” sounds unlikely.

      As far as your own time is concerned, lay witnesses are not compensated for the time they miss work to give a deposition, even when they’re not parties to the legal action — parties themselves are not compensated unless they are subpoenaed (which is usually not necessary as they are required to attend or risk being sanctioned). So, even if you could make the case that you are entitled to compensation for the no show, it would likely only be at the standard lay witness rate, which is usually only between $20-30 (per day), plus cost of travel.

      Unless you have some proof that the lawyer intentionally no showed just to jerk you around, or that this no show is part of a larger scheme of discovery violations (e.g., he does this again), I doubt that it would be worth your time to pursue this. I’m not saying that this is fair, but from my own experience, courts rarely sanction lawyers for what appears to be an honest mistake.

  11. Rick says:

    Question: I am the defendant in an auto accident in WA state. My wife was injured (my fault for the wreck) and is suing me.

    My attorney was hired by the insurance company and has kept me in the dark (I’m sure intentionally) on every aspect of this case. I’m to be deposed in the next 2-4 weeks by the Plaintiff’s attorney. The attorney hired by my insurance company has in very innocuous ways inferred that I will lie to help the plaintiff. This is a very untrue statement.

    My question is this: Can the attorney appointed to me ‘coach’ me or somehow force me into not telling the truth during my deposition?

    I’m an honest 45+ man with an income well into the $150k range and the lawsuit will yield my wife far less than my annual income. So the ‘money grab’ idea was tossed out when I provided my past 7 years of IRS statements.

    Thank you.

    • fl_litig8r says:

      No, your lawyer can’t force you to lie to hurt your wife’s case. As to his suspicions about you, lawyers are by nature a distrustful lot. It doesn’t matter how much money you make. Millionaire celebrities shoplift. Martha Stewart took advantage of insider trading. We expect that people will usually testify in accordance with their own financial interest — while this may not involve outright lies, we wouldn’t expect a husband to give completely unbiased testimony about his wife’s car accident, or volunteer information that might hurt her case. Don’t take it personally, and don’t worry about what your lawyer thinks. As long as you tell the truth under oath, you’ve done your part.

  12. dana wolfe says:

    I have not been arrested for a felony in over 10 years.My criminal history consists of possession of a firearm,assault w/ a firearm and dissuading a witness.I’m not proud of this.

    Almost 3 years ago my brother in law went through a painful divorce,from a real toxic woman and an adultress among other things.They have 2 daughters,8 and 5, our nieces.I met them both in 2009,a little less than a year before their mom was caught cheating and I was introduced to them as Uncle Dana(by their mom) because ofcourse my wife is their blood aunt.

    So for 2 years we would see our nieces every 2 weeks like clockwork,everything was cool.

    But last year the mother of our nieces filed a custody motion in child court stating that she wants her daughters to have no contact whatsoever with me because to the best of her knowledge I went to prison for murder.She swore under oath in a deposition and also to the court that I’m a murderer.

    As I mentioned before I have been to prison but not for murder,nor have I ever killed anybody,nor would I.
    My question is if I can prove that she lied in her deposition and to the court,what can I do?I would never harm a child in my life and I have no criminal history where women or children have ever been harmed.I’ve never even been left unsupervised in my nieces presence.
    One last question,is there any way I can possibly report her attorney [name removed by admin] to the state bar for not checking his facts
    before he slandered me?,Because after all,he’s the one who took the deposition.

    • fl_litig8r says:

      I’m not a family lawyer, so I really can’t speak as to the likelihood of the mother succeeding in barring you from seeing the children.

      As to her testimony that you are a murderer, the context and exact wording of her statements will matter significantly. If she claims that you were actually convicted, that it easily disprovable and would be possible grounds for a slander suit (I say possible only because most lawyers won’t take these cases unless you can show significant economic damages from the statements). If she is expressing an opinion that she believes you got away with murder, that is a much tougher slander case to make. Just think of O.J. Simpson: acquitted of murder charges but still accused and found liable for wrongful death in a subsequent civil suit. Is he a murderer? While technically not a convicted murderer, would it be slander to call him one in light of the wrongful death suit? Also, look at Casey Anthony, also acquitted of murder but still routinely called one by people throughout the country. Being acquitted, or even not charged (a la Ray Lewis) with murder is not proof that one is not, in fact a murderer.

      That being said, if you are willing to testify as to the facts of her allegation (as the above-mentioned people likely would not), you could in theory sue for her for slander. Again, a lot of this depends on the specific nature of the allegation and whether it is expressed as opinion or fact (opinions are generally not slander).

      As to suing the lawyer or filing a bar complaint, I can’t imagine such a suit or claim prevailing. A lawyer is entitled to believe his client and is not required to do an extensive investigation trying to disprove her claims before submitting them to a court. You’d need to show that the lawyer had actual knowledge of the falsity of these statements to even have a chance at bringing such a claim.

  13. vic says:

    Great website…..Could you please answer a question for me?
    I found a lawyer to represent me in a federal case…after reviewing the documents and info he asked me if I want to proceed with his representation in exchange for a flat fee of $550 and a third of settlement in order for him to draft the agreement. I agreed and sent him the money and additional documents….after that I never heard from him despite the e-mails and phone calls…..Due to the fasting approaching end of statute of limitation, I filed pro se and sent him an e-mail to cancel any actions in the matter as soon as the complaint was delivered by mail to the court to prevent double filing. I asked him for a return of my money and he said he would return the fee minus postage to return my documents. I received my documents and and agreement that he wants me to sign that I will release him from any liability. i am sure he is afraid of malpractice lawsuit ….What can I do in this case?? I can retrieve my money if I go to my bank and file a complaint….


    • fl_litig8r says:

      First, I suggest you find another lawyer ASAP. Federal court is no place for a pro se litigant. I know lawyers who are afraid to practice in federal court because the rules tend to be a lot less forgiving than state court and oral arguments on motions are rare, making it especially important to be able to argue effectively in writing.

      As to your former lawyer, I suspect that he’ll pay you back regardless of whether you sign the agreement not to sue him. I have a feeling that this is his not-so-subtle way of finding out your intentions regarding that without having to ask you directly. So, the question is — do you intend to try to sue him? If you do, then don’t sign the agreement and see if he’ll still pay you before going to your bank with the matter. You could threaten to take the issue to the state bar if he doesn’t pay you back. If you don’t intend to sue him, then signing the agreement is the probably the quickest way to get your money back.

      Know that good legal malpractice cases are pretty rare, as I discussed in this article. For example, in your case if you fired your lawyer before the statute of limitations ran, he has a really good argument that he didn’t commit malpractice — he still could have filed in time had you not fired him. Even if you fired him after the statute ran, the fact that you filed your own complaint creates an issue as to what damages you suffered due to him not filing. While his sending you a release of any malpractice claim might indicate to you that he thinks you have a good case, in reality it is just that lawyers are paranoid about these things and want to avoid even the possibility of a malpractice case when they part with a client under bad circumstances.

      • vic says:


        Its easy do do a bad thing and tarnish someone’s reputation, so I choose to focus on my main problem…I am trying to find a different lawyer for my case ( I am in Florida, 1200 miles away from court) while, in parallel I am preparing my case for myself. I have 120 days to serve them and I am confident that with so many info about previous cases on internet, I am focusing on the fine line I have to walk. I have some experience as a PRO SE, ( should have taken judges offer last time !)and plenty of time since I am physically disabled but with a clear mind and no lawyer will be able to better present my case than myself just like no doctor knows what I am going thru. I gave up law school in Europe in order to come to USA 20 years ago. Also got my user id and password to e-file docs. I am sure I can beat them at their own game and I firmly believe in Justice. They failed to respect an agreement that ADA had with them… I was a manager, responsible for properly applying the laws and policies, yet, they treated me like a piece of dirt when I got sick due to a manager I had and I was successful in firing her for discriminating me using Company’s procedures. Funny is that the manager that I complained about terminated me during the investigation process using someone else s password with no written approval from home office. I appealed my termination with no success…they did not give me my final check until after I filed an EEOC complaint in MIAMI about 10 months later and even that check was short…..and they wondered if I had a lawyer. I have good witnesses and plan to use them….great info by the way in how to avoid deposition tricks and use the witnesses I also found on PRO SE manual for NY Dist Court.
        I have a question for you: Amending my original complaint can I attach exhibits and ask for summary judgement?
        While I cannot promise any donation to your website yet, I have a great witness up there who knows my intentions and pray that justice will prevail. Thanks much.

        • fl_litig8r says:

          I rarely give advice so specific on this website, but with respect to your plan to add exhibits to your complaint and move for summary judgment, I will — don’t do it. First, you should really only add exhibits to a complaint if they are absolutely necessary to meet the notice pleading requirements (like attaching a contract in a breach of contract case). Exhibits become part of the complaint, giving the defendant additional grounds for a Motion to Dismiss (without even having to resort to summary judgment). From a strategic standpoint, you really want to plead the minimum amount necessary to avoid a dismissal.

          If you want to use documents in support of a summary judgment motion, there’s no need to attach them to the complaint. You can file them separately using a Notice of Filing (you do this concurrently with filing your motion). This way, you get the benefit of using the documents in your argument without incurring the downside of having them become potential grounds for a motion to dismiss.

          Filing a motion for summary judgment so early doesn’t seem to be a good strategy to me, anyway. The court is unlikely to grant such a motion before the defendant has received your initial Rule 26 disclosures, much less had a chance to perform any meaningful discovery. Also, you’re telling the defendant exactly what his witnesses need to say before you’ve had a chance to lock down their testimony via deposition. If they file affidavits (which the attorneys will draft for them) opposing your motion, you won’t have any deposition testimony from the witnesses to use to dispute their affidavits. I think you’d be showing your full hand way too soon, with little possibility of the motion being granted before the defendants have a chance to perform some discovery.

          So while, in theory, you can move for summary judgment so quickly, in practice I doubt that it has much chance for success — not without having to go through the discovery you might hope to avoid by trying to win so quickly. Because you’ll likely be required to participate in some discovery before the motion is considered, why not wait to file your motion until you’ve had a chance to lock them into their own testimony?

          On an unrelated note (and you may already know this), be sure to get a copy of the “Local Rules” for the district court you’re in (you should be able to download them from the court’s website). These rules will supersede parts of the standard Federal Rules of Civil Procedure, and will likely add a bunch of procedures not found in the standard rules, such as rules for motion practice. You don’t want to miss a deadline because you were following the standard rules instead of the local rules.

          • vic says:

            Thanks again sir….

            You are better than any lawyer I met.

            Let me know please if you have published any books or if you will in a near future. I will buy them 100% guaranteed. A book written by Donna Ballman truly opened my eyes and perspective.
            do you thing that ADA will come up with a Statement of Interest in my ADA case? If they do, I think my chances to settle out of court will increase since I can demonstrate that I established prima fascie in my ADA case.


          • fl_litig8r says:

            I have no plans to write a book. I have a hard enough time coming up with new article ideas for this website.

            As far as your question, I think what you’re asking is whether it is likely that the EEOC will intervene in your case. This happens in very few cases, so I would say the odds are overwhelmingly against it. I also wouldn’t get too optimistic about your former employer wanting to settle any time soon, at least for a reasonable amount. Employment discrimination cases are often received with great hostility in federal court, and summary judgments for the defense are granted with higher frequency in these types of cases than in most others. Add to that the fact that you’re proceeding pro se, and I would say you’re in for a tough fight, no matter how good the facts may be in your favor.

  14. Ruth k. Williams says:

    I’m involved in a medical malpractice law suit on behalf of my husband in n.y. My deposition has been postponed 4 times, I was just wondering how many times can the defense get away with this?

    • fl_litig8r says:

      If it appears that this is being done on purpose just to harass you, your husband’s lawyer could file a Motion for Protective Order which would bring this to the court’s attention. It could ask that the court order that any future setting of your deposition not be rescheduled without prior leave of court, or for some other form of relief.

      Of course, if the postponements give you plenty of notice (e.g., they aren’t telling you only 1-2 days before the scheduled date that they’re postponing it), it’s likely the court wouldn’t find anything wrong with them rescheduling your deposition, even multiple times. The defendant isn’t required to depose you at all, so unless it appears that he’s setting, canceling and resetting your deposition just to inconvenience you, and not for some other legitimate reason, there isn’t much that can be done.

  15. vic says:

    Hello again …..I have a question….I know you’re not my lawyer, but I wish I found a lawyer just as good as you answering questions in an excellent fashion and timely manner.
    I have to file a first amended complaint in a discrimination case…..the original standard court form was not lined on the side nor numbered. Could not find this info on local rules either…..what is the standard please…..I can go either way with the templates I have. Also is a great website that instructs how to build a complaint that will resist a motion to dismiss. Thanks again.

    • fl_litig8r says:

      Well, I don’t know where you saw a standard federal court form complaint that didn’t have numbered paragraphs (that’s really required so the defendant can respond to each allegation separately in its Answer), but I would recommend either Googling to try to find a complaint that was actually filed in the district court you’re in, or signing up for a PACER account (it’s really pretty cheap — you pay a few cents per page) and downloading one from the district court directly. PACER lets you search for cases using a number of different factors, so you could search by attorney and look for your local employment discrimination lawyers to help you find a sample case. I’m not going to give you detailed instructions on how to draft a discrimination complaint in federal court, but having numbered paragraphs which separate your assertions (and separate counts for separate claims) is really something basic. If you’re struggling with this already, I’m going to reiterate my suggestion that you try to find another lawyer to represent you. It just gets harder and more complicated after your complaint is properly filed.

  16. vic says:

    Thanks again Sir……I was refering to one inch left side double line and 1-28 numbering……Original discrimination complaint form standard for the court had paragraphs but no lines on left nor 1-28 numbers.
    My hopes in finding a good lawyer 1200 miles away, with good moral and ethical principles are slim to zero. Everybody seem to be in the hurry and don’t even ask me if I have a disability, an essential step in establishing prima fascia….There is no perfect case for anyone, takes a bit of elbow grease and dedication. And I know I have a good case based on previous cases I am researching and the evidence I have, that would have got me in big legal trouble if I was doing it against someone else. And there is no possible way a lawyer will alter the law in order to dismiss my evidence. I would not let them, yet shine the light for the judge to see. I know, its a long fight, but I also know what rights i have in order to defend them with plain and simple federal rules.
    Your website is also a spring of information for whoever is thirsty and one day will donate for it but I don’t want to brag

    • fl_litig8r says:

      I’m not sure what “double line” you’re referring to, but if you’re thinking that the court wants two vertical lines going down the page at one inch from the left margin, that’s not something I’ve seen federal courts require and such a requirement would have to implemented via local rule. I’ve seen many local rules impose margin, line spacing and font requirements for filings (through local rules), but I’m not familiar with any federal courts requiring actual lines to be drawn down the left margin. How were you told that this was required, and what specifically were you told?

  17. LA says:

    I showed up for my depo with my lawyer, my ex and her lawyer (who has been unethical in the past) were also present at a court reporting service that offers conference rooms and supplies court reporters. When I got there they said they were “waiting for the reporter to arrive” then my ex’s lawyer asked if we could speak off the record my lawyer agreed and my ex’s lawyer proceeded to offer some ridiculous settlement offer and suggested we forego the depositions (mine & hers scheduled back to back), my lawyer and I declined and when we went to check the status of the reporter my lawyer looked in the book and there was NO DEPOSITION scheduled! When we questioned the receptionist, she said they were “still trying to locate the reporter” This is a company that supplies reporters and hosts depositions how come they couldn’t get another one? So shady, especially since this place is in same building as my ex’s lawyer’s office! It was clear opposing counsel canceled the reporter as he thought I’d be foolish enough to settle and being the person my ex is he clearly doesn’t want her deposed. Can her lawyer be sanctioned for this sham? It cost me legal fees and a day off of work with no pay! Now I’m going to have to take another day off of work AND pay for my lawyer’s time to prep AGAIN and show up AGAIN!

    • fl_litig8r says:

      I’m a bit confused as to how neither deposition was scheduled. Didn’t your lawyer set your ex-wife’s depo? Do you have any proof that your ex-wife’s lawyer canceled the depositions, as opposed to this just being a screw-up by the court reporter’s office? If you do, then sanctions could be requested for the fees you incurred (and possibly your lost pay/leave time). If you don’t, then the court will probably accept the excuse that this was a scheduling error by the court reporter’s office, and there’s nothing that can be done about that (don’t expect the court to order the court reporter’s office to pay).

      • LA says:

        Thank you for your quick response! I thought the same thing about my lawyer’s responsibility, but just figured that he was going to use the same court reporter that was hired for my depo. Was my lawyer supposed to schedule a separate court reporter for my ex’s depo?

        • fl_litig8r says:

          He wasn’t supposed to schedule a separate court reporter. Using the same one as opposing counsel is typical. However, your lawyer would have to schedule the deposition separately with the same reporter, which should have meant that at least one deposition was on the court reporter’s books (your ex-wife’s). Of course, the other lawyer may have told the court reporter to cancel both depos and she may have believed that he wouldn’t cancel another lawyer’s depo without his consent — something that shouldn’t happen, but conceivably could. It just makes it unlikely that the court reporter’s office made a simple scheduling error and failed to schedule any depos — I could see it happening for one deposition, but two depos set by two different lawyers seems unlikely. It appears that they were canceled. What does the court reporter’s office say? Were they ever scheduled?

          • LA says:

            I figured as much. No I haven’t contacted the court reporting company yet. I figured they wouldn’t be forthcoming with what actually transpired if I asked. Remember they told me “they were trying to locate the reporter.” I’m not sure how to pose my questions without putting them on the defensive. Any suggestions? Thank you again for your input! This is a great website, and a tremendous resource!

  18. LA says:

    UNBELIEVABLE! I talked w/the reporting company and they said the lawyers arrived at the same time and had a discussion. The depos weren’t on the books but she summoned a court reporter who arrived at the same time I did. Although neither lawyer acknowledged to me that she was there, I was taken back to a room. Opposing counsel told the court reporter to “sit tight” but that she wouldn’t be needed for the afternoon depo (my ex’s), and he would let her know about the morning depo (mine). He then went out after an hour and told her they wouldn’t be needed her and that opposing counsel (my lawyer) agreed to be invoiced for her appearance fee! When he came back in he said the reporter didn’t show up! I am blown away that my lawyer lied to me! He agreed to cancel my ex’s depo without discussing it with me, and even though I repeatedly said I am here and ready to be deposed he just said that there’s no depo if the reporter is not here! He is a partner at a VERY prestigious well known law firm! I’m just in shock right now! It is clear that it is a “boys club” in Daytona Beach! I have a conference call with my lawyer tomorrow and I’m going to listen to his explanation before I unleash the facts I’ve just been told. Do you have any words of wisdom for me? I want to go off on him and file a complaint with the Florida Bar! Isn’t my lawyer supposed to be loyal to me? Isn’t he bound by model rules of professional conduct NOT to lie to me? I want to handle this in a way that doesn’t cost me my case. I thought I hired the best lawyer and most reputable firm in Daytona. I don’t even know where to start in finding another lawyer at this point!

    • fl_litig8r says:

      This is a really weird situation. First, the fact that neither depo was scheduled is odd (unless the court reporter’s office screwed up, which doesn’t seem to be the case here). Second, the fact that they’d summon a court reporter if they had no intention of taking the depos anyway (unless that was a show put on for the clients, or the court reporter’s office did it without the lawyers requesting it). Third, that your lawyer would tell you that a court reporter wasn’t available (which kind of ruins the point of #2).

      I just don’t see the point of the lawyers lying to you and your ex-wife just to get you together at a court reporter’s office to make a settlement offer. Why not just schedule a mediation and avoid the subterfuge? Did your lawyer even recommend to you that you take their offer? If not, then this makes even less sense to me.

      I have a hard time believing that this was done just to needlessly run up billable hours, because actually taking the depos would have resulted in more hours billed that day (and it’s not like there aren’t enough cases for the lawyers to bill their future hours to if they are both from good firms). I really don’t understand the point of the whole exercise, unless your lawyer was really pushing for you to take their offer — I can see the lawyers possibly thinking that their clients might be more willing to settle with the pressure of imminent depos hanging over them (relying on cold feet). If your lawyer wasn’t pushing for you to settle, then I’m really at a loss as to their motivation for not taking the depos.

      Without knowing more about why this all happened, I can’t say whether your lawyer did something worthy of a bar complaint. Lying to you about the availability of the court reporter might not be enough to land him any hot water with the bar unless there was something else going on as well, like trying to needlessly rack up billable hours for doing nothing or colluding with your ex-wife’s lawyer to try to force an unreasonable settlement upon you. That’s not to say that I approve of lawyers lying to their clients. I just think that the bar would be more concerned about something more serious and detrimental to your case, like fraudulent billing or a conflict of interest. Without knowing the “why” behind the lie, you don’t know the extent of the possible ethics violation. Strangely enough, the rules of professional conduct more specifically forbid a lawyer to lie to the court (Rule 4.3-3) or to third parties other than clients (Rule 4-4.1) than they do lying to a client himself. In fact, there is no specific prohibition against lying to a client. Instead, it would need to be inferred from other duties owed, like Rule 4-1.4(3)‘s requirement to “keep the client reasonably informed about the status of the matter”.

      It may not pay to play cat and mouse with your lawyer on the phone tomorrow, basically waiting for him to compound his lie before revealing what you know. That won’t give you any more insight into why he did what did, and may just make the situation more adversarial than it needs to be. I’d suggest just telling him that you were concerned as to why the depos were not taken, and after contacting the court reporter’s office you learned that there was a reporter available to take your ex-wife’s deposition who was sent away at his request. Why did he do that? Put him on the spot, but don’t be coy about it. I can’t think of a good reason for him to do this, but maybe he has one. Then decide whether to allow him to continue to represent you based on his answer.

      • LA says:

        You’re exactly right, none of it makes sense. I agree that playing cat and mouse is not the way to go. I’m going to ask him point blank why the depositions didn’t go forward. Funny thing is I requested a copy of the invoice for the “appearance fee” and I got an email from my lawywer’s paralegal stating they received a call from the court reporting co. that I wanted a copy of the invoice and she wanted me to know that my lawyer “paid it out of his personal funds.” Now they know that I discovered that there WAS a court reporter there, AND my lawyer paid her appearance fee. The conversation will be interesting, now that he’s had all night to figure out how to spin this! I will let you know how it goes. Thanks for your insight!

  19. EJ says:

    I was involved in a rear end collision when I was stopped waiting for traffic to turn. The defendant,while looking at his cell phone, missed the fact I was stopped. I could see he was not going to be able to stop. He was going about 30 mph. Anticipating the impact I braced both arms on the wheel and put both feet on the brake. There was minimal damage to my car. Both cars were drivable. While waiting for the police report my left arm began to tingle and hurt. I went about my business but by that evening I was in a lot of pain. I visited an urgent care the next morning and was given pain meds and told to return if it wasn’t better. I returned 2 weeks later and was sent to Physical Therapy for about 12 sessions. At the end of therapy I was told to follow up with an orthopedist in 3 months if I was still having pain. I saw the Ortho. An MRI Was done, surgery was recommend and completed. I sent all bills, medical records and a demand letter. Medicals are $37000 and lost wages were $2500. There first offer was $500, their second offer was $1500. This is when I retained a lawyer. The defendant was 100% at fault. Insurance is claiming that there was so little damage to the vehicle that there was no way the accident caused my torn rotator cuff. They have since upped their offer x two but now I have attorney fees to cover. We are getting ready for discovery. My lawyer said we have a good case. I am worried about the minimal damage. High school physics can explain bodies in motion and forces. What are you thoughts on low damage claims? Thanks in advance for any info you can provide.

    • fl_litig8r says:

      This is a pretty common tactic by insurers — to claim that a plaintiff’s injuries must be directly proportional to the amount of damage to the vehicle. It works better for them in soft-tissue cases, where the type of injury is not demonstrable using objective medical testing, because it appeals to the natural (and often incorrect) assumption by jurors that an accident with minor damage to a car couldn’t have hurt the plaintiff too badly. In your case, with a provable injury (via MRI) and a surgery afterward, I wouldn’t be as concerned about this defense unless you had previously received medical care for the shoulder. As long as you can show that you had no shoulder pain before the accident (by the absence of prior medical care for that shoulder) and you had pain due to a torn rotator cuff immediately afterward, your argument seems more appealing to the lay person. Now a jury thinks “that injury had to come from somewhere, and the timing sure points to the accident”, making the abstract argument by the insurer that “the physics makes it unlikely” seem rather desperate. Barring proof of a preexisting shoulder injury, your case sounds really solid to me.

  20. vic says:

    Hello again,
    After serving the party in federal court, their counsel called me to see if they can extend the answer time by about a month, saying that he just got the case and needs to do an investigation…. I agreed, he sent me a stipulation to sign and send back…He made his appearance in the court (Received NEF with appearance notice and Disclosure…) and nothing else on the docket…Now, the time has passed (21 days) and I never got an NEF with the Stipulated order, e-mail nor mail with proof of service…..If there is nothing on the docket, can I go for Default Judgement??? Thanks
    P.S. I did not forgot about the donation to your website….

    • fl_litig8r says:

      While technically you may be able to move for a default (I assume you mean the 20 days for him to initially respond to the Complaint has passed, not the period of time with the month-long extension), I doubt that it would be worthwhile. Courts are very reluctant to enter defaults when a party has actually entered an appearance, and the fact that you agreed to an extension would demonstrate that you’d suffer no prejudice from the default not being entered (or being immediately vacated). I think at worst what would happen is a written scolding of the attorney for not timely filing the motion for extension. I can’t envision a judge entering a default (or not just subsequently setting it aside once he finds out about the extension) and a subsequent default judgment under these circumstances.

      It seems like moving for a default would be unnecessary work for you and would cast both you and the other attorney in a bad light with the judge — him for not filing a motion for extension and you for trying to get a default when you had already agreed to an extension. Judges hate having their time wasted with unnecessary procedural gamesmanship.

      Most lawyers in your shoes would call the other lawyer and see why he didn’t file for the extension. It will buy you some good will from the other lawyer, which helps down the road so you don’t spend the whole case trying to jerk each others’ chains. Asking for a default when you know it’s not going to stick will probably just earn you some unnecessary hostility (and future gamesmanship) from the other lawyer, making your case that much harder and unpleasant — and, as I mentioned, it will piss off the judge.

      I’d take the high road here, my friend. Just call the other lawyer and see what’s going on.

  21. vic says:

    THANKS MUCH !!!! for the advice…

    I figured out what happened:
    Today, I received in the mail an envelope from him. First page was attached to the stipulation and addressed to the case manager with a caption: HAND DELIVERY. He handed out the stipulation with signatures to her. I think the court clerk would have told him the right way to do it. Yet, the local rules says that he should have e-filed the stipulation as a PDF under “other filings” in CMEF (since I am pro se and electronic signature won’t apply), then he would have to submit the form as a Word document under proposed orders, in order to be edited and signed by the judge, resulting in an NEF after the outcome.
    At this point, that paper can be somewhere collecting dust until someone will realize the mishap. I don’t want to be the bad one but technically he failed to do it according to the rules, within the 21 days time frame for an answer. (time expired today at 00:00) I know, the judges hate technicalities and I am using this extra time to polish my amended complaint. The lawyer seemed a nice guy and after all he judge is there to decide in my case. I hope he would realize the facts and come up with a settlement offer.
    YOU, are an amazing person….
    Thanks again !!!!

  22. vic says:

    Your advice was great….Thank you !!!
    Got scheduled for a hearing on a motion to dismiss. (I mailed the Complaint on time but the clerk did file it 2 days after was delivered to the Court and 1 day past the statute of limitation. I filed a response with an affidavit saying that I mailed it and was delivered on time according to receipt and tracking number filed as an exhibit also, showing the timely delivery to the clerk). When the mail was delivered to the clerk, they had 10 inches of snow, schools and businesses closed but the court was open to public. Meantime I filed an amended Complaint with few essential exhibits and they moved to partially dismiss ( the same charge that was past the statute while the others were not since did not have to go to EEOC, but directly to court) for the same reason -was not filed on time-. I am pretty sure the judge will be fair and order the clerk to change the file date. I have to call the clerk to see if they keep the original envelope and that will prove it that got delivered on time. The lawyer soften up and they want to see if I am willing to settle. My question: Can I go for summary judgement after the hearing on motion to dismiss?? With all the exhibits I have and before the pretrial conference?
    My second question: If I retained a lawyer and failed to file on time can that spent time be considered equitable tolling? I also got proof that he got paid and never took an action.
    And how can I make a donation to your website??

    Thanks again !!!!

    • fl_litig8r says:

      Question 1: Technically, you can file for summary judgment at any time. Realistically, the court will allow the defendant time to do its own discovery before hearing such a motion.

      Question 2: Equitable tolling won’t extend a statute of limitations just because a former lawyer (or a current one, for that matter) failed to file a complaint before the statute ran. Lawyers often get sued for malpractice for missing a statute of limitations. If the court tolled the statute of limitations while a lawyer was handling the case, it would render most statutes of limitations meaningless (and save many lawyers from malpractice claims). I think your best shot is to proceed as you are, proving that the clerk received the complaint before the statute ran, and merely failed to file it on the proper date.

      I don’t really accept donations. Thanks for the offer, though.

  23. vic says:


    I have a hearing on a motion to partially dismiss next month. meantime Defendant filed a reply to my answer to Motion to dismiss. They claim that I was not diligent in filing on time, questioning if I really retained an attorney, his name and what he did or did not.
    Question 1: Is it harmful to disclose e-mail communication I had with the attorney, since the fine print at the bottom of e-mail mentions confidentiality, attorney client privilege, privacy, attorney work, etc.?? I planned to have them shown in Court rather than file them. I have all e-mails, cancelled check for his fee that shows due diligence…
    Question 2: Should I file a motion for sur reply ( whithin 14 days of their reply) or wait for the hearing date, go to Court and present evidence to the judge? I am not sure if the Judge can rule on the motion with a scheduled hearing date, without me filing a sur reply.

    Thanks a million !!!!

    • fl_litig8r says:

      Are you sure you are going to have a hearing? In federal court, motions are often decided on the filings alone without a hearing, so I’d make sure that you actually have a hearing scheduled. If you have a hearing scheduled, you can present your evidence of your contact with an attorney at that time (you can even request that the judge’s review of the privileged documents be done in camera so that the defense attorney doesn’t get to see them). I can’t say whether disclosing your communications with the lawyer would be harmful because I don’t know what the communications say. Generally, it’s a bad idea to disclose these things to the other attorney. One thing you can do for the time being is file an affidavit swearing to your contact with the lawyer and generally supporting your prior claims about how he didn’t file anything. This may obviate the need to ask for leave to file another reply, as you’d just file the affidavit through a Notice of Filing. With nothing from the defense to dispute your sworn account of events, the judge would have to accept the contents of your affidavit as true. You may not even have to show the judge your supporting documents at the hearing if you do this (though I’d bring them anyway).

      This may all be for nothing, though, as I doubt that the court would extend your statute of limitations just because you had a lawyer who didn’t file anything. The defense attorney may just be jerking you around with his “due diligence” arguments with respect to the lawyer. I still feel that this will be decided on whether your complaint arrived at the clerk’s on time and was just filed late due to the clerk’s delay.

      • vic says:

        Thank you, GREAT ADVICE !!!!

        The case manager scheduled an R&R hearing for Doc #.. representing their motion after I answered their motion for partial dismiss.
        I was afraid that the judge will rule after their reply despite the fact that I had a hearing date scheduled. I mentioned that I will bring documents in court for review rather than exhibit them, and defendant suggested sealing the exhibits. I feel confident about the judge since she is a civil rights watchdog, encouraging people “to know their civil rights and not forget that the courts are there to serve them.” I learned that a good lawyer knows the law and a better lawyer knows the judge. You saved me some frustration preparing for a sur reply, when actually there is nothing but repeating of arguments.
        Thanks for the affidavit tip. People are paying dearly for advice they get that is not even close to yours in any way !!! in camera advice?? FABULOUS !! You are a blessing in disguise!!!!
        Will let you know how it goes, after the 22nd, next month.
        I have a feeling that they will want to settle and get me on their side since the person who caused my discrimination is also suing the defendant (and they don’t know it yet absent service)saying that she was terminated as a pretext. I actually had an honest formal complaint against her, they investigated and terminated her. Before she got terminated, she terminated me in retaliation, using someone else s login credentials. And I have proof for that !!!!

        THANK YOU !!!!!!!!!!

        Thanks again !!

  24. Just The Facts says:

    I was just thinking that this could be abused by lawyers asking questions that don’t need to be asked.

    What would be a proper responce for any questions that don’t need to be asked?

    • fl_litig8r says:

      The standard for whether a question can be asked in a deposition is not whether it “needs to be asked”. It’s whether it might reasonably lead to admissible evidence (not that the answer itself doesn’t have to be admissible — it merely has to have the possibility of leading to admissible evidence), which is extremely broad. Generally, the only time you can legitimately object to a deposition question based on relevance is if it is being asked solely for the purpose of harassing the witness, which is an extremely high bar to meet (and should be used only in the most obvious of cases).

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