The DO'S and DON'TS of Depositions

Author Subject: The DO'S and DON'TS of Depositions
Del Posted At 18:14:41 04/07/2000
Having Your Deposition Taken

(Please note: while this summary of a deposition is directed toward a personal injury case arising from an auto accident, you will find the general information applicable to many types of litigation.)

What Is a Deposition?
A deposition is oral testimony taken under oath before a trial or arbitration. It is customary that depositions be taken of the parties to a lawsuit. Often depositions are also taken of witnesses and others who might testify at trial. Even though it often takes place in a conference room or office, and the setting is somewhat informal, it is a very important event in any lawsuit.

The questions you will be asked pertain to information relevant to your automobile accident case. For example, you will be asked about your medical, employment and educational background, and about the accident and your injuries. Your deposition will probably take between one and two hours, although the length can vary considerably.

Your attorney will review your testimony before the deposition and will be there with you when you are questioned by the other attorney. There will also be a court reporter present, taking down everything you say, so it is important that you be as accurate and truthful as possible.

Purpose of a Deposition

A deposition is part of what is called the "discovery" process of a lawsuit. The deposition allows the lawyer on the other side to "discover" all the facts a witness may know which will assist that lawyer in preparing for the trial or arbitration of a case. It may also be the only opportunity the other lawyer has to evaluate you as a witness. Once both sides are fully aware of all the relevant facts, it is often possible to settle a case.

If your case goes to court, all the lawyers will have a booklet prepared by the court reporter which contains the questions and answers from your deposition. Those answers may be read back to you and to the jury. It is essential that your testimony at your deposition be just as complete and truthful as if you were testifying in a courtroom.

Your Appearance

You should remember that this deposition is probably the first opportunity the other attorney has to meet you. A claims adjuster from the insurance company may also be present as an observer during the deposition. You will be judged upon such things as your appearance, demeanor, honesty, frankness and possible jury appeal.

It is important that you make a good impression. Therefore, you should appear for your deposition dressed as you would expect to dress if you were actually going to court to appear before the jury.

Remember to:

Be clean.
Wear neat clothing.
Treat all persons in the deposition room with respect
Some Do's and Don'ts of Being An Effective Witness

Tell the truth. Never attempt to lie to protect yourself or enhance your case by exaggeration.

Be humble and respectful: "Yes, sir" or "No, sir" are not required, but you may find such responses helpful in setting a polite tone.

Speak slowly and clearly. Answer out loud and with words, not by shaking your head meaning "yes" or "no," or saying "uh-huh" or "uh-uh." The court reporter must be able to understand you to make an accurate record. Wait until the lawyer finishes asking the question before you begin to answer. The court reporter can only record one person talking at a time!

Be certain you understand the question before you answer. If you don't understand the question, it is perfectly all right to ask that it be repeated or explained.

Take your time and give the questions and your answers as much thought as is necessary. Stick to the facts and testify to only that which you personally know.

Answer all questions directly and as concisely as possible. When you have answered, stop talking.

Testify only to basic facts, and do not attempt to give opinions or estimates unless you have good reason for knowing such matters.

Be as positive as possible. Try to avoid "I think," "I believe," "I guess," "possibly," or "perhaps." It is better to say "As I recall," or "In my judgment." For example, "I was going 40 miles per hour" is preferable to, "I believe I was going 40 miles per hour."

Admit candidly if you do not know or do not remember. Some clients think they should have an answer for every question asked. You cannot know all the facts, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted. It is important that you be honest and straight-forward in your testimony. Sometimes "I don't know" is the perfect answer.

Remember that if you start to feel tired or need a break, we can stop the deposition. Just let your lawyer know and the deposition can stop for a few minutes.

Argue or lose your temper. Leave your temper at home. You may not like the question or the other lawyer, but arguing or losing your temper will almost always hurt your case.

Volunteer information. Wait until the question is asked, answer it and stop. If you can answer "yes" or "no," do so and stop. Explain your answer if necessary, but don't make speeches.

Say "I can't," as in "I can't play tennis now," unless you mean it. Instead, say that you "are not able to do something as well as before." Can't means physical impossibility; you may be able to play tennis, but only with great difficulty and pain.

Look to your lawyer for help in answering a question. Your lawyer cannot answer for you; just do the best you can.

Try to memorize your story. Justice requires only that a witness tell the story to the best of his or her ability. Rehearsed stories often sound false.

Say "That's all I know" or "That's all of my injuries." Later, you may remember something else, so it is more accurate to say, "That's all I recall at this moment." If the other lawyer asks for you to tell him or her all the injuries you have, or tell him all of your activities affected by your injuries, explain all you can remember and then add, "There may be more, but that's all I can think of right now."

Smoke or chew gum.

Most Important - A Summary

Listen to the question
Answer only the question asked
Answer the question truthfully
Don't get angry

Makes Lists on Paper
Certain areas are sure to come up during your deposition, and you should be prepared to talk about them as accurately as possible. Some people find it helpful to make lists to refresh their recollection or put dates in order. Feel free to do so, but if you do, bring the lists with you to the deposition and give them to your attorney before it begins. These are documents that we will also find useful in preparing your case.

Remember, these lists are to help you and your attorney, but you may not be able to refer to the lists or testify from them during your deposition.

List all of your injuries from this accident, from the top of your head to your feet. Also list psychological trauma, headaches, sleep problems, fear of driving, etc. (if they apply).

List all past employment you have had by date (going back at least 10 years).

List all significant injuries, illnesses, and medical treatments you have had before and after this accident.

List all activities you cannot do now, or have limitations doing now, that you used to do before the accident. Include how the injuries affected day to day activities, recreation, relationships, and sports.

Review of Documents
You may find it helpful to review certain documents prior to the deposition. You may review the police report and any medical records and reports you may have.

However, DO NOT review your Injury Diary or other material your lawyers have provided to you in preparation for your deposition unless you are instructed to do so. The reason is that the other lawyer may have a right to see material you review prior to the deposition. It may not be in your best interests to be required to provide documents subject to the attorney-client privilege to the other lawyer.

Other Things to Remember
Come prepared to show any and all scars to the other attorney.

Have with you all the facts and figures with respect to your time lost from work, amount of wages lost, and medical bills.

Your deposition can be an important tool in enabling your attorneys to obtain a fair settlement of your case, so come well-rested and well-prepared. If you have any questions, be sure to write them down and discuss them with your attorney before your deposition begins.

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