“. . . [T]he key advice one should take away from any discussion of how to conduct yourself at your deposition is simply this – make sure that you just tell the truth. Be honest, and stick to what you know.”
When the offer from the insurance company is low, and doesn't seem to be meaningfully improving as negotiations follow, the remedy for an injured truck or auto crash victim, bicyclist or motorcyclist, pedestrian, or dog bite victim, is to proceed into litigation.
"Litigation" occurs when your lawyer files a lawsuit against the party or company that caused the injury or death. Written requests for production of documents (and in Washington cases, written questions to be answered under oath called "interrogatories") follows. And then, typically, the attorney defending the party or company that caused the harm wants to take your deposition.
You will be contacted by a legal assistant from your attorney's office checking to find out what dates may be convenient for you to spend being deposed; generally, there will be plenty of notice, and several date options for you to choose from. A preliminary time will also be set up for you to meet with your attorney to give you some general guidelines and answer your questions about the process. This blog is meant to offer a brief summary of what you might expect when the date for your deposition arrives.
What are they, what is their purpose?
It is essentially the opportunity for the attorneys who aren't representing you to learn what you know about the case, your injuries, and the damages you are claiming, as well as to have any questions about your background answered.
At the outset of the deposition, the court reporter will have you raise your hand and take an oath to tell the truth. Questioning of you will then proceed, with opposing counsel asking you questions, and you answering them, one at a time.
Attorneys may use depositions of the parties in a number of ways, next discussed. Thus, they are actually a fairly important part of the litigation process.
How may they be used?
First – as part of the ongoing evaluation of your claim. The deposition is defense attorney's one and only opportunity to meet the plaintiff, and size them up, in order to try to get a sense of what a jury will make of them. Second, it is their chance to learn firsthand the plaintiff's version of the event, what the plaintiff suffered in the way of injuries, and how those injuries may have affected them in their day-to-day activities, work, etc. Usually, defense counsel will summarize the deposition and their impressions of you in a report to the insurance carrier at some point after your deposition is taken. That report may be relied upon by the assigned adjuster to adjust the settlement offer that was made on your case before the lawsuit was filed.
Second – to learn what your substantive testimony will be at trial. This will influence what approach and tactics the defense will take at trial of your case.
Third – if your case is going to be initially presented at an "arbitration", an informal trial-like proceeding in front of a neutral attorney decision-maker (the "arbitrator"), the transcript from your deposition may be submitted in its entirety, or at least parts of it, for the arbitrator to read and consider before or during the arbitration hearing.
Fourth – likewise, defense counsel will be able to read from your deposition at trial – informing the jury of such parts of your deposition testimony as the defense may deem helpful to its defense of your case.
Finally—your deposition testimony may be used for impeachment. That is, if you say one thing on any given subject during your deposition, and then say something entirely different at trial or arbitration of your case about that same subject, opposing counsel will point out to the jury or arbitrator the inconsistency in your testimony. The inference will be, since you were under oath both times and you gave conflicting answers, that you are not a believable witness—that your testimony cannot be trusted for whatever reason—be it that you have a poor memory, are confused, or, worse yet, are a liar.
Who all will be present?
At a deposition, typically present are the attorneys representing the parties, a court reporter, and the witness. If you are being deposed as the plaintiff in a case, sometimes the assigned insurance adjuster attends to observe as well. The deposition may be done at your lawyer's office, opposing counsel's office, or some other location, depending on the agreement reached regarding location.
How long will it last?
How long it lasts will depend on the nature of your case, how much detail opposing counsel wants to dig for, and other factors that make a general statement impossible. Most depositions of a plaintiff run from between one hour to three hours, although they may take as long as seven hours.
Should I expect any objections, like one sees occurring in trials on television and in movies?
The rules of discovery are different from those that apply in a trial. It is rare that attorneys object during a discovery deposition.
Can I consult with my attorney during a deposition?
Yes, but generally, protocol is that you must answer whatever question you have been asked before a break may be taken and an opportunity to visit with your attorney is allowed.
What if I don't understand the question?
Lawyers are imperfect, just like everybody else, and can sometimes ask questions that don't make much sense. And, at times, you might not follow or be able to hear the whole question. If either of those things happen, so long as you are respectful in doing so, it is completely appropriate – and in fact necessary – for you to ask to have the question restated or repeated. Failure to do so – answering a question that you don't understand, is a risky proposition and almost inevitably will end up hurting your case.
How many times can you be deposed?
In most cases, only one deposition of a party is allowed. There can be exceptions, such as where new documents or information comes to light after a party has been deposed, such that the deposition may be re-opened to allow follow up on the new information. But usually, you will only have submit to one deposition.
What kind of things will you be asked?
All of the following, and more, may be inquired into – background questions, including names and aliases, marital status, children's names and ages, residence history, educational background, work history and current employment, criminal convictions, drug and alcohol usage, mental health issues, prior medical conditions, accident and injury history, hospitalizations, how the accident or event at issue occurred, what witnesses were identified, who or what caused the accident or event at issue, did police arrive and investigate, impact forces, property damage, mechanics of injury, describe all injuries being claimed, when did pain/symptoms first onset, medical care sought, wage loss or impaired earnings capacity, taxes paid and returns filed or not filed, course of recovery from claimed injuries, activities affected, current status (what healed, what are you left with in the way of pain/symptoms), what have your doctors said about your prognosis, what care that was recommended did you fail to do and why, how much money are you asking for in your lawsuit and why, etc. Again, the rules governing discovery in Washington and Oregon are broad, and allow attorneys to inquire into any area that they might be curious about, so long as it is reasonably calculated to lead to admissible evidence at trial.
How is it different from normal conversation?
In normal conversation, questions, answers, and statements get bantered about rapidly, with a lot of nonverbal communication (head nods, gesturing with hands, winking, etc.) carrying much of the load. A deposition needs to be done differently. The court reporter is trying to take down everything stenographically, and, for example, can't do so effectively if two people are talking at the same time. Depending on the skill of the court reporter, they may miss nods of the head and hand gestures. And “uh-huhs” and “huh-ahs” as answers (which when used in normal speech can be well-understood) don't make as much sense on a read-back of a transcript as do answers such as ”yes” and “no”.
The transcript being clear and accurate is very important. So keep in mind that the best approach as a witness is to listen carefully to the question, pause and reflect to make sure that you understand it, ask to have it re-stated if you aren't clear, and then slowly deliver your answer, verbally, not with just a head shake or grimace.
And of course, the key advice one should take away from any discussion of how to conduct yourself at your deposition is simply this – make sure that you just tell the truth. Be honest, and stick to what you know. Guesses, or being pressed into agreeing to answers that you don't know to really be true, are to be avoided.
How should you dress?
Nicely and conservatively, as you would for a formal job interview. There is no harm that can come from being well-dressed. On the other hand, wearing a tee-shirt that says “Thug” on it, to use an extreme example, isn't going to aid you in being treated fairly by anyone evaluating your case.
Will you be able to take breaks?
Breaks are definitely allowed, as often as needed. They may be called because you need to use the restroom, get a glass of water, stretch or move about, or because you realize you are getting anxious, upset, or weary of focusing. As a witness in a deposition, feel free to call for one when needed, to make sure that you remain fresh and able to concentrate. It is not a good idea to answer questions quickly out of fatigue or frustration.
What else, besides a pre-deposition meeting with your attorney, might you do to prepare for your deposition?
Attorneys approach the answer to this question differently – my own preference is to make a client's medical records from both before and after the event available for them to review in preparation for their deposition. It can be helpful to be reminded about what medical care you have had, when it occurred, and what your complaints were at different times in your life. I also often suggest that if statements to police were given, interrogatories were previously answered, or recorded statements given leading up to the filing of the lawsuit, that my client take a copy of those home to review – again, to be reminded of what was said previously regarding the event at issue and the injuries it caused.
What should you NOT do before your deposition?
I have been in practice a long time. I have seen witnesses show up to their depositions and even at trial drunk, drugged, exhausted, or so uptight that they could barely focus. None of those things are good, obviously. You need to be able to concentrate and respond with honest and accurate answers.
Early on in college I would stay up all night cramming for exams. Despite that, I did fine in college, got good grades, and made it through. Gradually though I realized, sleep and being refreshed for an exam was as important – if not more so – than trying to memorize information the night before an important test. By the time I was in law school, I knew better than to pull all-nighters before a law school exam.
So, at the top of the list of what not to do is this – don't stay up all night the night before the deposition worrying or trying to read a bunch of documents. Get a good night's rest, so that you can arrive at your deposition fresh and able to concentrate.
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