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Preparing For Your Deposition

You have just received notice that you will be giving a “deposition” in your court case. What exactly is a deposition? Essentially, it’s a formal opportunity for your opponent’s attorney to meet you in person, put you under oath, ask you questions about your case and assess your credibility. It’s formal in the sense that there is an order to how the questioning is conducted. Each attorney of record will have an opportunity in a predetermined order to question you. What follows are some frequently asked questions concerning depositions:

How do I prepare for my deposition?

Your lawyer should sit down with you in advance of your deposition to prepare you. If your lawyer prepares you by meeting with you five minutes before the deposition and advises “just tell the truth,” that is not adequate preparation. The process is more complicated than simply telling the truth. Rarely does a client ever “win” his case in a deposition, but plenty have lost their cases because of something they said or didn’t say in a deposition. If your deposition is approaching and your lawyer has no plans to meet with you in advance of that deposition, then you need a new lawyer.

What subjects will be covered?

Most client depositions cover three basic areas: background information, the accident or incident that is the subject of the litigation, and the damages or harm resulting from the incident. Your opponent’s attorney will generally begin the deposition with background questions, e.g., your name, address, date of birth, schools attended, degrees obtained, prior work history, marital status, names and ages of children, etc. You may wonder “what does any of this have to do with my case?” The answer may be “very little.” If your case were to go to trial, however, you would have the opportunity to tell the jury a little about yourself, to give them information that might help them identify with you or even empathize with you. Accordingly, your opponent’s attorney is given an opportunity to question you regarding your background.

The second area of questioning generally concerns the incident or the accident itself. Where were you going when the incident occurred? What was the weather like? What time did the incident occur? What happened?

The third area of questioning typically involves damages, or the consequences or harm resulting from the incident that is the subject of your lawsuit. Be prepared to discuss how the incident has impacted your life. Be thinking about activities you once enjoyed that you are no longer able to engage in because of the accident or your injuries. What physical limitations have you experienced as a result of your injuries? Has the incident had any impact on you mentally or emotionally, that is, do you suffer from depression, anxiety, grief or fear as a result of the incident or your injuries?

Is there a “right way” and “wrong way” to answer questions?

Probably the best advice for people giving a deposition is this: answer the questions truthfully in as few words as possible. In other words, whenever you can, answer your opponent’s attorney’s question with a “yes” or “no.” Don’t volunteer information. If the opposing attorney wants more information, let him pull it out of you. Keeping your answers short and simple does two things. First, it keeps your deposition short. The opposing attorney has a list of questions to ask you. How quickly he gets through that list of questions depends on how brief and to the point your answers are. Secondly, keeping your answers concise and to the point keeps you from drifting into discussing irrelevant matters or topics not addressed by opposing counsel’s question.

Here’s a test: The attorney taking your deposition asks you “do you know what time it is?” What should your answer be? The correct answer is either “yes” or “no,” not “it’s three fifteen p.m.!”

How should I dress for my deposition?

One of the reasons your opponent’s attorney is taking your deposition is to assess your credibility. Are you someone a jury will find believable, credible and respectable? Like it or not, people will judge you by your appearance. Obviously, we want to make a good impression. You should dress as if you were going to church or out to dinner at a nice restaurant.

If you are a man, it is not essential that you wear a coat and tie. You should feel comfortable but well dressed. Generally, “business casual” attire is appropriate. Pull up your pants and put on a belt. Shine your shoes. You should also be well-groomed and clean shaven. Get a hair cut. If you wear your hair a little longer, make sure it is clean and neatly arranged. If you have facial hair, make sure it is well maintained—absolutely no five o’clock shadows or three day beards! Your finger nails should be short and free of grit and grime. Any tattoos or piercings should be covered by your clothing. There are plenty of opportunities for you to express your individuality, earthiness or affinity for punk rock music. Your deposition is not one of them!

If you are a woman, your clothes should be clean, pressed and appropriately sized. You are safe with “business casual” attire. If you have questions about what is appropriate, ask your attorney in advance of your deposition. Clothing and accessory mistakes to avoid include plunging necklines, exposed midriffs, tight fitting blouses and sweaters, mini-skirts, excessive makeup and perfume, large jewelry, over-the-top hairdos, unusual manicures, visible tattoos and piercings, shoes with greater than a two-inch heel and virtually anything denim. Save your workout clothes for workouts, your blue jeans for lounging on the sofa and your sexy clothes for nightclubs.

What are the Top 10 Pitfalls to avoid in a deposition?

  1. Never lie. First and foremost, never be dishonest about anything. Being caught in a lie (and rest assured you will be caught), even a small lie, will be devastating to your case. It destroys your credibility with a jury, opposing counsel, claims adjusters, etc. and thus drives down the amount of money the insurance company is willing to pay to settle your claim.
  2. Listen. If you fail to listen to the questions you are asked, you may provide information that is unresponsive and possibly even detrimental to your case. Part of being a good listener is allowing the questioner to finish his question before you start to answer.
  3. Make sure you understand the question. If you don’t understand the question, ask for clarification. Otherwise, you could unwittingly give an answer that is harmful to your case.
  4. Don’t be in a hurry. Before you give an answer, pause to think about the question before you give your answer.
  5. Don’t be verbose. Whenever possible, answer questions with a “yes” or “no.” If you don’t know the answer to a question, say “I don’t know.” If you can’t remember the information requested of you, say “I can’t remember.”
  6. Don’t volunteer information. Answer the question truthfully in as few words as possible. If the attorney asking you the questions wants more detail, let him ask you for more detail. You should view your deposition not as a conversation, but as an interrogation.
  7. Don’t be wishy-washy. If you are certain of a fact, do not allow the opposing party’s attorney to get you to change your testimony, or admit that you could be mistaken or that your recollection could be faulty. These are common tricks employed by defense attorneys to attack your credibility and thus diminish the value of your case. Once you have given an answer, stand by it and refuse to make concessions that compromise your case.
  8. Don’t lose your temper. Yes, you may be righteously outraged over what happened to you or the way you have been treated since your accident, but keep your cool. Losing it never helps anything. Opposing counsel knows that if he can easily provoke you to anger, he can make you look bad in front of a judge or a jury. That drives down the value of your case. If you feel yourself becoming frustrated or angry during your deposition, ask to take a break, excuse yourself to go to the bathroom or get a glass of water—whatever it takes to regain your composure and keep your cool.
  9. Don’t be disrespectful. The attorney taking your deposition may strike you as arrogant, rude, indifferent, nosy, unprepared, condescending or incompetent. He may, in fact, be all those things. Treat him with respect anyway. He has at least some input in the amount of money the insurance company is willing to pay you for your claim. It is wise to remember the old adage “you catch more flies with honey than with vinegar.”
  10. Don’t forget to make a good first impression. Whether we like it or not, people immediately judge us based on our appearance. You can take advantage of that human tendency by arriving for your deposition well rested, well dressed, clean and courteous. You will make a good impression on the other side, and that translates ultimately into more money in your pocket.
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