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,

and

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.

Settlement tip

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?

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.

Settlement tip

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.

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.

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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.

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.

Relax

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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