Most personal injury claims settle before trial. But either because settlement negotiations reach an impasse or the statute of limitations is about to expire, you may need to file a lawsuit. If you file a personal injury lawsuit, the attorney for the defendant will almost certainly take your deposition.
What is a Deposition?
A deposition is conducted outside of court, usually in an attorney’s conference room. But although it is conducted in an informal setting, a deposition is a formal procedure used by attorneys to gather information from a witness, both for informational purposes and for possible use at trial. A deposition is usually attended by the witness, a court reporter and lawyers for the parties to the lawsuit. The court reporter swears in the witness and then records the deposition. The court reporter may then prepare a written transcript of the deposition testimony for use by the attorneys in preparation for and at hearings and trial.
Purposes of a Deposition
Discovery. Depositions are part of what is referred to as discovery in a case. In Washington, discovery includes interrogatories, which are written questions a party must answer under oath, requests for production of documents and depositions. Defense counsel likely will already have your responses to interrogatories and your medical records in response to document requests before your deposition. One purpose of a deposition is to flesh out your earlier discovery responses and learn what additional information you have in support of your claim.
Credibility. As a personal injury plaintiff, your credibility is very important. If your case proceeds to trial, you will be asking the jury to trust you and believe your testimony concerning what happened in the incident and your injuries from it. One of the reasons defense counsel is taking your deposition is to get a gauge on how credible a jury will find you if the case proceeds to trial. This can have a significant impact on whether your case settles or goes to trial.
Cross Examination. Direct examination is examination of a witness a party calls on their own behalf at trial. When your attorney questions you at trial that is direct examination. Cross examination is questioning of a witness an opposing party has called on their behalf. When you are a personal injury plaintiff and the attorney for the defendant questions you at trial, that is cross examination. Trial attorneys have an old saying that you should never ask a question on cross-examination at trial you don’t already know the answer to. The reason for this is that if you ask a question on cross examination without knowing the answer to it in advance, the answer may hurt rather than help your client’s case, in which case you would have been better off not asking the question in the first place. Another purpose for a deposition is to provide the defendant’s attorney an opportunity to ask you all of the questions they might want to ask you during cross examination at trial, so they will know in advance what your answers will be.
The Conduct of a Deposition
At the start of the deposition, the Court reporter will swear you in under an oath that you will give truthful answers during the deposition. Defense counsel will then usually start the deposition by outlining certain rules of procedure for the deposition, which your attorney will probably have gone over with you before the deposition. These rules are intended to ensure there is an accurate transcript of the deposition. They will likely include requests that your answers be verbal, that you wait until the attorney is finished asking their question before starting your answer of it, and asking that you let the attorney know if you don’t understand a question.
Most if not all of the questioning will be by defense counsel. Your lawyer usually plays a very limited role at your deposition. Their objections are limited to the form of a question or a question that seeks privileged information, such as attorney-client communications.
You have the right to take a break at any time during the deposition and confer with your attorney or for any other reason. The only caveat is that if there is a questioning outstanding to you, you should answer the question before asking for a break.
The questioning by the defendant’s attorney of a plaintiff in a personal injury case will usually cover four broad areas.
One of these areas of questioning is addressed to biographical and background information about you, such as:
- your age, education, and employment history;
- whether you have a criminal record;
- whether you have made any other injury claims;
- whether you have given a deposition before;
- your health and medical history before the incident; and
- your social and recreational activities before the incident.
Another area inquiry will concern the incident giving rise to your injuries. Defense counsel may ask you questions about:
- what you had been doing earlier on the day of the incident;
- how the incident itself happened;
- how your body was impacted by the incident;
- what injuries you noticed immediately after the incident; and
- any conversations you may have had with the defendant, any witnesses and any emergency personnel at the scene.
Defense counsel will also ask you questions about your injuries, such as:
- a list of all the injuries you received from the incident;
- when you first noticed each injury;
- how bad the pain was in each area of your body injured in the incident;
- when you first started treating for your injuries;
- which medical providers you treated with;
- how your injuries progressed over time;
- if and when any of your injuries resolved; and
- whether you are still suffering from any problems as a result of the accident.
Defense counsel will also ask you about the impact your injuries had on your life. They will likely ask you concerning:
- whether your injuries prevented or made it more difficult for you to do any activities of daily life; and
- any social or recreational activities you enjoyed before the incident.
Suggestions for Your Deposition
Your deposition is a significant step in your personal injury case that can have a significant impact on whether your case settles or proceeds to trial. If you are worried about any issue in your case, you should discuss it with your attorney before the deposition. Following are suggestions to help you prepare for your deposition.
Always tell the truth. Perjury and knowingly making false statements under oath are criminal offenses. They can also have a catastrophic impact on your case. You may have reservations about candidly answering a particular question because of concerns it may damage your case, or because you don’t see the relevancy of the information asked for. The scope of questioning in a discovery deposition is broader than at trial. It may be that the information would not be admissible at trial, unless defense counsel discovers you have not been candid in your response, in which case your answer might be admissible at trial to impeach your credibility.
Don’t guess. A deposition is not a test. If you don’t recall something, don’t give an answer that suggests that you do. Several months may pass between your deposition and trial. You may be asked the same question at trial. Defense counsel will have a copy of the transcript of your deposition at trial. If you guess at an answer at your deposition and then guess at an answer to the same question at trial, your guesses may not be the same. Defense counsel will then likely bring this inconsistency out to raise questions about your credibility. If you don’t know the answer to a question, just say so. If you knew the details but have since forgotten them, say you can’t remember.
Be only as precise as you can. Be as specific as your memory allows. Unless you are absolutely certain about something, don’t give an answer that suggests you are. Conversely, if you are certain about something, don’t give a hedging answer. Avoid absolutes such as “never” or “always.” It is certainly appropriate to qualify your answer by saying that is “all I can remember.” If you give an estimate, make sure you state you are doing so. If your estimate is only a guess, say so.
Make sure you understand a question before answering it. It is okay to pause before answering a question to make sure you understood it. If you didn’t hear a question or are not sure you understood it, ask the attorney to repeat or rephrase the question until you do understand it. Take all the time you need to make sure you understand a question before answering it.
Don’t volunteer information. Answer a question fully, but only provide enough information to answer the question. Your role in a deposition is not to educate the examining attorney. Do not try to guess at what the attorney is trying to get at with the question or explain why you did or said something. Resist the urge to add additional facts or explain something you think helps your case. An exception to this rule in a personal injury case is when you are being questioned about the impact your injuries have had on you and your life. You should be prepared to fully explain these impacts. But don’t exaggerate your symptoms. If you are asked to rate your pain on a 0 to 10 scale, remember that 10 is the most excruciating pain you can conceive of.
Admit mistakes. If at any time during your deposition you realize you have given an incorrect answer or have misspoken, correct your response immediately.