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Personal Injury Cases – Deposition Preparation

By Laura McDonald

Your deposition is very important to your case. It is part of what the law calls “discovery,” which affords the defendant the chance to learn about your case. You must answer allowable questions, but remember that revealing too much too easily will only help the defendant’s case--and hurt yours.

All those who have been injured or who are related to a family member who has been injured because of a negligence have a natural urge to tell their story. Resist this urge. The time to tell your story will be at trial when a judge and a jury are there to hear you.

The most important people listening to you at your deposition are the attorneys for the other side. They are there to learn everything they can about your case and then figure out a way to beat you. You must tell as little as possible while still being truthful.

Your deposition will be taken in a lawyer’s office, probably at a conference table. The attorneys for the other side will have an opportunity to ask you questions. Your lawyer will also be there to protect you from unfair questions and to make necessary objections.

A court reporter will be present, who will take down stenographically everything you say. Your comments will then be transcribed into a booklet. Before trial it will be your obligation to read and virtually memorize this booklet of your testimony so that you do not accidentally contradict yourself when you testify at trial. Obviously, the shorter the booklet, the less difficult your cross-examination at trial will be.

Contradicting yourself will cast doubt on all your testimony and could lead the defendant’s attorney to accuse you of perjury.

The following are ten points to remember when testifying at a deposition:

1. Depositions are not conversations. Depositions are formal, legal proceedings. You are not there to make the other side understand your story. Be polite, but don’t make small talk. If there is a question pending, don’t say anything.

2. You cannot win your case at a deposition. Do not help the defense attorney understand your case. Give him as little information as possible while still telling the truth.

3. Think before you answer. Take your time. Make sure you understand the question. Do not tell the attorney asking the question what you think he wants to know. Just answer the question he asks you.

4. Keep your answers short. When you give lengthy answers, you’re revealing more informatio--and giving the defendant’s attorney ideas for more questions.

5. Never guess. You might be wrong. If you do not know the answer, say you do not know. If you do not understand the question, say so. You may say, “What do you mean by that?”

6. Do not volunteer any information. If there is a silence, do not fill it with talk.

7. Do not get angry. Becoming angry sometimes will make you reveal too much information, and will send the message that you are ill-prepared to be a witness and cannot control yourself. The attorneys for the other side will try to take advantage of that weakness in trial.

Also, do not make jokes. Your deposition is a serious matter.

8. Make eye contact. Look at the attorney asking you questions. Stay calm.

9. Stop talking when your attorney objects. There are two types of objections. Neither can be made if you are talking. When your attorney says, “I object,” stop talking. Your attorney may merely be making an objection to mark a place in the transcript where an improper question and answer can be deleted by the court. If that happens during the deposition, after your attorney made the objection he may permit you to answer the question.

On the other hand, some questions are completely improper and should never get an answer. In such a situation, your attorney will tell you not to answer the question. Follow the instructions. The other side must then obtain a court order to get an answer.

10. Do not disclose anything your attorney has told you. It is proper for your attorney or his paralegal to prepare you to give your deposition, but everything they tell you is privileged. These instructions are privileged; what other attorneys, paralegals, and consultants in the office have said verbally or in writing is subject to the attorney-client privilege, and the other side should not inquire about it. Never volunteer such information. If a question calling for such information is asked, your attorney will object and instruct you not to answer the question.

If you follow these ten rules, your deposition will go well and not be excessively long. If you have questions, ask them at the conference prior to your deposition. Be sure you understand what is expected of you. Your attorney and his staff are there to help you, and they would like to make a necessary legal procedure as manageable for you as possible.

About the Author

Laura McDonald is a paralegal. She is a member of NFPA (National Federation of Paralegal Associations). Laura is experienced in the areas of personal injury, civil litigation, family, environmental and corporate law, estate planning and bankruptcy. She works for Michael L. Hawkins & Associates, P.L.L.C., located in Frankfort, Kentucky. The firm's website is http://www.mlhlawky.com

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