Out of all the various phases and procedures involved in a personal injury lawsuit, being deposed is the one that tends to give injury victims the most anxiety. However, an effective, well-prepared, and thorough deposition is necessary and crucial to the success of your case. The key to relieving your anxiety over a deposition and the key to ensuring that your deposition goes smoothly are one and the same: preparation.
What Is a Deposition?
A deposition is when the other party’s attorney questions you about the facts, details, and circumstances of your case in order to gather information. This happens at a specified date, time, and place, which you’ll know in advance. Depositions generally take place in an attorney’s office, not in a courtroom. Your attorney, the other party’s attorney, and a court reporter (also known as a stenographer) are all allowed to be present.
The person giving the deposition (you) is called the deponent. You are under oath while you’re being deposed, and you’re required to answer questions truthfully and to the best of your ability. The court reporter will record everything that is said and happens during your deposition. In general, what you say during your deposition testimony can be used in court later — assuming your case doesn’t settle before going to trial.
A typical deposition occurs after a lawsuit is filed, but prior to a trial. This is part of the discovery phase of your case. You’ll know when you need to submit to a deposition because the defendant’s attorney will ask you to do so by way of a notice of deposition, which is a type of legal request. If you’re the plaintiff in the lawsuit, the defense does not need to get a subpoena or court order to request your deposition — they only need to give you notice.
Once you’ve received a notice of deposition, your participation is mandatory. Depositions are a critical part of the discovery process, so you’ll have to attend the deposition and answer the other attorney’s questions if you want your case to continue. Generally, we will work with the other attorney to set a time and date that is agreeable to everyone.
Why Is a Deposition Important?
Your deposition is important to your case because it’s usually your first opportunity to give on-the-record testimony and share your side of what happened. A deposition creates a written record of a witness’ testimony that can be used later to impeach testimony in trial. This might happen if, for example, the testimony of a witness during trial is different from what is said at the deposition. Third-party witnesses to the accident can also be subpoenaed to give a deposition, although their deposition will be separate from yours.
Besides establishing the facts and circumstances of your case in your own words, your deposition provides an opportunity for the attorneys from both sides to evaluate strengths and weaknesses in the case and get an idea of how you would testify in the event of a trial.
What Can You Expect From a Deposition?
If you’ve seen a lot of courtroom dramas on television, you might be expecting a deposition to look more like an inquisition, with the opposing attorney pounding on the table and shouting questions at you, accusing you of lying at every turn.
In real life, depositions in civil lawsuits rarely look anything like this. The deposing attorney in your case will most likely be polite, professional, and maybe even a little friendly — after all, they want you to open up and reveal as much information as possible, not shut down out of fear or frustration. Usually, the deposition won’t even happen in a courtroom; instead, it will probably take place in a conference room.
Depositions generally follow similar formats. Usually, the attorney for the other side (the opposing counsel) will ask you a series of questions, and your answers will get recorded in a deposition transcript. Although your attorney can’t feed you answers during a deposition, you can work with your attorney to anticipate and prepare for the defense attorney’s deposition questions. Those questions, which are called interrogatories, will generally fall into one of the following categories:
- General personal information: This can include questions about who you are and your background, like your name, contact information, familial makeup, occupation, etc.
- Prior physical condition: During a personal injury deposition, the other party’s attorney will want to know what your health was like before your injury. For example, if you hurt your right shoulder, the attorney might ask if you are right- or left-handed, or if you had prior injuries to your arm, shoulder, or back that might have contributed to your accident or the resulting injuries.This part of the deposition can become especially important if your injury involves cognitive symptoms, as many brain injuries do. If you suffered a concussion or other brain injury, your injury isn’t necessarily visible to the naked eye, so it’s important to paint a vivid picture of what your health was like before the accident. Regardless of the type of injury you’ve suffered, though, the way you answer these questions will establish what your life and health were like before the accident and create a point of comparison for your after-injury state.
- Accident information: The defense attorney will want you to record how the accident happened in your words and in as much detail as possible. You can expect them to ask questions like: How did the accident occur? What was your initial reaction to it? Who was there to witness it? What was the weather like? What was your mental state? Did you converse with anyone during or immediately after the accident? What was said during those conversations?To get ready for these questions, you should thoroughly prepare this part of your testimony with help from your lawyer. If you don’t practice, it can be very easy to get turned around during the course of your story and lose your train of thought, or to omit important details. Remember, you’re under oath during your deposition, so be very specific about what you remember, and be honest if there are things you don’t remember clearly.
- Injury description: You will need to give a detailed account of your injuries. How were you injured? Where were you treated? Were you treated by your primary care physician or an emergency room doctor? Were you admitted into the hospital? Did you have surgery? What was your follow-up care like? Did you follow the doctor’s advice? Do you have ongoing care such as physical or occupational therapy? The details of your injury are very important, as they will support your later answers about how the injury has affected your physical, mental, emotional, and financial well-being
- Life after the accident: This is your opportunity to testify about how your life has changed for the worse since the accident. You will be able to paint a narrative of how your life today differs from the lifestyle you previously enjoyed and the future you had planned, including any limitations you’ve experienced, costs you’ve incurred, and emotional pain you’ve suffered as a result of your accident.
Throughout the pre-deposition preparation and the deposition itself, your attorney will be your most important ally and source of advice. Besides preparing you for the defense attorney’s questions, advising you about how to frame your answers, and providing a supportive presence during your deposition, your lawyer can also come to your defense and object if the defense attorney’s questions or conduct are out of line in some way.
The entire deposition process falls under a set of legal rules called the Federal Rules of Civil Procedure. Your attorney should know these rules well enough to make sure the other side follows them and to speak up in case of a violation.
Deposition Details: How to Conduct Yourself
A personal injury deposition is one of those times where it’s easy to become self-conscious about everything you do. When you know a lawyer is going to depose you and record your testimony, every word choice, gesture, and action suddenly seems very significant, and the stress can cause injured victims to feel like they don’t know how to act or what to say.
To help alleviate that stress, here are a few basic tips for how to conduct yourself during a deposition.
- Be professional and polite. Arrive to the deposition well-dressed, well-groomed and on time, and avoid trying to make small talk or jokes to “break the ice.” When the defense attorney begins to ask you questions, provide clear, concise, and straightforward answers to the best of your ability, making sure to ask clarifying questions if there’s some aspect of the question that you don’t understand.
- Stick to the facts. The format of your deposition is question-and-answer, and it’s the defense attorney’s obligation to bring out your testimony through questions, so don’t feel the need to anticipate what they might want to know or provide extra detail they haven’t asked about. Instead, simply answer the question you’ve been asked in a clear and straightforward manner and then wait for the next question. Everything you say will be recorded, so be sure to speak clearly and loud enough so your words will be recorded accurately.
- Don’t rush. This is an important part of your case, so you will want to be sure and take your time so you can give the most thoughtful, truthful answers possible. Let the attorney finish his or her question before you start to answer. You can even pause for a moment before beginning your answer, giving yourself time to collect your thoughts and creating the opportunity for your attorney to object as needed. Try to remain calm, even if the other party’s attorney tries to ask you confusing or unclear questions in order to trip you up. It’s important to remain even-keeled.
- Be honest. You’re under oath, so you need to answer the defense attorney’s questions honestly; failing to do so could have serious consequences. Part of being honest, though, is telling the truth about what you’re not sure of — “I don’t recall” or “I am unsure” are perfectly good answers for questions you don’t have an answer to. You do not want to be caught making a false statement, even if it’s unintentional, as this could seriously harm your case.
- Be prepared. Preparation is extremely important for a deposition. Work with your attorney to prepare for the deposition and take this preparation time seriously. Ask your attorney to role-play a deposition with you so you can practice giving calm, factual answers that are free of opinion or emotional appeal. This is very important to practice since you’ll be speaking about a subject that may bring up intense emotions and memories.
With proper practice and guidance from your attorney, a personal injury deposition doesn’t need to be a nerve-racking experience. On the other hand, if you’ve decided to “go it alone” and represent yourself in a personal injury case, the deposition could be the point where you realize you’re in over your head. If you’re facing the prospect of a personal injury deposition and you haven’t hired an attorney yet, now might be the time to ask whether you really want to go up against the defense’s legal team without anyone on your side.
Myers Law Firm: Your Personal Injury Advocates
At Myers Law Firm, we understand the stress, anger, and confusion that often accompany a senseless injury. If you or a loved one has been injured due to someone else’s negligence, we can help. When you choose us to represent you, we’ll act as your advocate and use our years of personal injury experience and our extensive knowledge of the local courts to fight relentlessly on your behalf.
Call our offices today at 888-376-2889 or fill out our online contact form to schedule your free consultation with us. We will use this time to get to know you, learn about your case, and inform you about your legal options so you can go forward with confidence.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.