De-Mystifying Deposition: What to Expect at Deposition

So, you find yourself as a Plaintiff suing someone as part of civil personal injury litigation (whether for a car accident, a fall, or some other non-work-related injury), which is already no picnic. One day, your attorney sends you an ominous document stating that the attorney representing the other side (the “Defendant”) is requiring you to appear on a specific date and time to answer questions at a “Deposition.” Understandably, this sends your brain racing with so many questions, which is perfectly normal as the prospect of a Deposition can be stressful; however, as with most legal matters, preparation is key to success.

• What is a Deposition?

Depositions occur in most kinds of litigation, but for our purposes we will be focusing on a Deposition as part of Personal Injury litigation. In a nutshell, a Deposition is a question-and-answer session with the opposing attorney, under oath, and can be in person or by Zoom, depending on the preference of the attorney scheduling the Deposition. A Deposition is transcribed by a Court Reporter and sometimes videotaped. The opposing attorney (which can be one or more depending on the number of parties) will ask questions, and the Court Reporter “takes down” everything that is said. Deposition length can vary depending on a variety of factors (e.g., technical difficulties, number of parties, complexities related to facts and law, amount of damages, and unforeseeable factors).

• What May the Opposing Attorney Ask?

Unfortunately, your attorney will not have the opposing attorney’s questions beforehand, but these Depositions tend to fall along similar lines that your attorney will be familiar with:

(1)         Instructions/Admonishments: After being sworn in, the attorney will start the Deposition, usually with instructions known as “admonishments” which consist of basic ground rules related to your Deposition. Usual instructions may include:

• Instructions To Allow the Court Reporter to Properly Transcribe the Deposition. Some examples include asking that you speak clearly; answer with a “yes” or “no” instead of with “uh-huhs” or head movements; and instructing you not to interrupt or “talk over” the attorney.

• Instructions Regarding the Transcript: The Court reporter will send you a copy of the transcript for you to review and revise if your testimony was not completely accurate during the deposition. However, when testimony is changed, it can be used against you at trial to challenge your credibility and truthfulness. That is why it is important to make any corrections during the deposition itself if the error is known at the time.

• Instructions Regarding Not Guessing: The attorney who takes your deposition is entitled to your best response within your personal knowledge; however, the attorney does not want you to guess at an answer. It is perfectly acceptable to say that you do not remember if this is true. It is better to be truthful and state that you do not remember than harbor a guess. In fact, it is normal not to remember all the details involved in a personal injury case.

• Instructions Regarding Objections: Your attorney may object from time to time to the wording of the question, but unless your attorney tells you not to answer the question, you must respond. A judge can sort out the issue before trial if necessary.

• “Catch All” Questions: These are “housecleaning” questions designed to make sure that your testimony is credible and to find out what you have done in preparation for your deposition. Examples include whether you have spoken with anyone about your deposition, whether you have taken any medication or substances that prevent you from giving your best testimony; and whether you have reviewed any documents ahead of Deposition.

 (2) Background Questions:

The attorney will also ask background questions. These can include a broad array of questions you might expect when someone is trying to get to know you, such as your name, address, work history and so forth. This might feel like an invasion of your privacy, but the attorney is entitled to certain background information. If the attorney asks an inappropriate question, your attorney should object.

(3)         Questions Regarding the Accident and its Impact on You:

The attorney will ask you questions about how the accident occurred, what injuries you sustained in the accident and how your injuries impacted your life. While this is not where you get to “tell your story” (it is important to stick to the questions asked), it is an opportunity to answer questions that can enhance the value of your case. These questions are designed to help determine whose fault the accident was and the amount of your “damages”.  Damages can include economic damages (“special damages” such as medical expenses or wage loss) or non-economic damages (“general damages,” such as pain and suffering, emotional distress and diminished quality of life).   

 

Don’t Panic – Mark Twain to the Rescue!

The thought of trying to remember every detail about the accident or your treatment can feel overwhelming. While depositions can feel stressful, a good attorney will have you prepared for your deposition. This goes a long way toward putting your mind at ease. Remember—you do NOT have to remember everything! My favorite Mark Twain quote for Depositions is, "If you tell the truth, you don't have to remember anything."  This means that an honest person does not have to worry about telling the truth. When you think of it that way, you realize that you are the expert in the room because you know better than anyone what happened and how you have been impacted.