Continued from “What happens at a deposition? Part I”
This is part two of the two-part blog series “What happens at a deposition?” If you have been injured or a loved one passed away due to someone’s negligent actions, you can file a lawsuit and be asked to provide a deposition as part of the case. A deposition can often make or break a personal injury or wrongful death case. While most cases do not reach a trial, information obtained during the deposition can help both parties negotiate a settlement. You will want to be aware of and avoid a few things a deposition to get the best result.
Pitfalls to avoid in a deposition
- Remember that as either a victim or a witness, you have no purpose other than giving the facts as you know them. You must provide the points if you have them. However, you do not have to share opinions, so you won’t have to give any opinions. Generally speaking, your attorney will object to the question if you are asked a question that calls for an opinion. However, after his objection, if he advises you to answer and you have an opinion on the subject, then you may give it.
- Never state facts that you don’t know. Quite frequently, you will be asked a question by an attorney, and even though you feel that you should know the answer, you do not, and therefore, you will be tempted to guess or estimate what the answer would be. This is a mistake. If you do not know a response to a question, even though you would appear ignorant or evasive by stating that you don’t know, you should do so. A guess or an estimate for an answer is almost always wrong. The opponent can show that you either don’t know what you are talking about or deliberately misstate the truth. Generally speaking, the attorney is in a position to know what the answer should have been. It may be that he asked the question because he knew you wouldn’t know the answer but felt that you would be compelled to guess.
- Please don’t try to explain or explain your answer. You are to give the facts as you know them. You are not supposed to apologize or try to justify those facts. As such, any attempt would make it appear as if you doubt your own testimony’s accuracy or authenticity.
- You are only to give the information which you have readily at hand. If you need to know certain information, do not give it. Please don’t turn to your counsel to ask them for the information or turn to another witness if one should be present and ask them for the info. Do not promise to get information that you don’t have readily at hand unless your attorney advises it. If you know an answer to a question when it is being asked, you should answer it. Only agree to look up something in the future and then supplement the answer you are then giving if your counsel advises you. Please don’t forget to refer to notes.
- Do not let the opposing attorney get you angry or excited. It destroys the effect of your testimony, and you say things that may be used to your disadvantage later. Sometimes, the attorneys intend to get a deponent excited during this testimony, hoping that they will say something that may be used against them. Under no circumstances should you argue with the opposing attorney. Please give them the information in the same tone of voice and manner that you do to answer your own attorney’s questions. The mere fact that you get emotional about a particular point could be advantageous to your opponent in a lawsuit. Thus, it would be best if you were calm and courteous.
- If your attorney begins to speak, stop whatever answer you may be giving and allow them to make their statement. If they are making any objection to the question that is asked of you, wait to answer the question until they advise you to go ahead and complete your answer. If they tell you not to answer a question, then you should refuse to do so.
- Tell the truth. The truth in the deposition or on the witness stand will never really hurt a litigant. A lawyer may explain the truth, but there is no explanation for why a client lied or concealed the truth. The mere fact that you may have had an accident before of almost an identical nature for similar injuries or that you may have sued or been sued by other people or even a criminal record does not destroy the validity of your case. However, the deliberate concealing of such an action would be devastating to your credibility at the trial and would hurt your case immeasurably.
- Never joke in a deposition. The humor would not be apparent on the cold transcript and may make you look crude or cavalier.
- Please don’t volunteer any facts you asked for by a question. I can’t help your case, but this may be a bit too helpful if the opposing counsel is not asking what you think are the “right questions,” that is only to your advantage. There is no need or desire to educate your opponent during this stage of the case. You will have plenty of opportunities to do that at trial.
- After the deposition is over, do not chat with the opponents or their attorneys. Remember, the other attorney is not your friend and not there to help you. They are there to help their client, which usually means doing so at your expense. Do not let their friendly manner cause you to drop your guard and become chatty.
- Try to figure out only after you answer whether a truthful answer will help or hinder your case. Answer truthfully.
- Answer the questions directly. Another common mistake is failing to answer the question asked now.
Example
In a car accident deposition, you may be asked a question like the following.
Question: “Did you give an arm signal before turning?”
Correct Answer: “Yes.”
Incorrect answer: “I always do.” [The attorney did not ask what you always do, only what you did this time.]
What should I wear?
A deposition is like a job interview. It is also the defense firm’s opportunity to evaluate what kind of impression you will make on a jury should the case go to trial. If you make a good impression as a sincere, honest person, then the case’s value will be higher than if you make a less attractive impression. Accordingly, you should wear clothes that are neat, clean and pressed. You should also be well-groomed, just as you would be for a job interview. If you don’t usually wear a business suit, then wear slacks and a shirt or, in the case of women, an attractive dress or skirt and blouse. In addition, again, like a job interview, you will want to have a good night’s rest, and you will want to, at all times, appear truthful, sincere, and cooperative.
Represented by an attorney
Suppose you are not represented by a personal injury attorney and are a party to a lawsuit but stumbled upon this blog to learn more about a deposition. In that case, I cannot recommend any stronger the importance of hiring counsel before your deposition. If you provide a deposition testimony without counsel, you are walking into a lion’s den, and your case may be seriously impacted.
