Deposition – What to Expect
It is perfectly normal to be nervous about your deposition in Washington DC. In fact, if you were not a little nervous your attorney would be concerned. After all, you filed this lawsuit to obtain fair compensation and you know your testimony is an important part of the process.
Let’s talk about what a deposition is and what it isn’t. A deposition is not a trial. It is the other side’s opportunity to “discover” what you know about the incident and what you have been through. This is their only chance before trial to hear from you about what happened and to hear what your injuries are all about. They also want to see what you look like, how you carry yourself and how well you can tell your story. This is their chance to evaluate whether you will be a strong and credible witness should the case go to trial. They are trying to find out if you are the type of person a jury will like and believe.
A deposition is not a trial and it is not the time for you to try to “win” over the other side. Listen to your lawyer when he or she talks to you about the goals of a deposition. It is important that you listen to this. You may still be quite angry about what happened but for the deposition you will be successful if you can set aside the anger and focus on task at hand. The insurance company hired the attorney who is going to ask you questions for the defendant. He or she has a job to do. They are very skilled at asking questions. You cannot “win” but you certainly can hurt your case if you get angry and your emotions cause you not to be able to answer the questions clearly and accurately.
Your attorney will tell you in advance where the deposition will take place and what time it will begin. You need to make sure that you get a good night’s sleep the night before and that you know where are you going. Leave yourself extra time to get there that day so that you are not flustered or pressed for time. You want to arrive cool, calm and collected.
Most depositions of the injured person take place the attorney’s office or a court reporting office.
Also, if you have children or other commitments make sure you have those covered since it is hard to predict how long a deposition will take. Do not bring your children to the deposition unless your attorney approves it due to the circumstances.
What to Wear
Talk to your lawyer ahead of time about what you should wear to your deposition. If the deposition is going to be videotaped it is especially important that you discuss not only what clothing to wear but if you are a woman ask about jewelry and make up. This may sound trivial, but believe me, appearance and impressions are important.
Also, if you have significant scars, the attorney or insurance representative may want to see them if they are in a place where you can let them see them without invading your privacy too much. This should be discussed as well.
Who Will Be There?
Your attorney will be with you and will sit right next to you for the entire deposition. There will be lawyers for all of the defendants present. They may also bring a representative from their insurance companies too. The defendants may be present, although not always. Ask your attorney who they think is coming and talk about it if you have any concerns. Generally, you will not be in the room with the other lawyers or the defendants without your attorney.
The judge will not be there.
The court reporter is one of the key persons who will be present. The court reporter is responsible for accurately taking down everything that anyone says while the deposition is occurring. The court reporter records the questions and the answers and then creates a written record called the deposition transcript. Once prepared, the transcript looks like a play, you can see the question verbatim followed by the answer and any objections or other dialogue between the attorneys also appears in the transcript.
If there are other family members who are parties to the case, they may sit in on the deposition or they may not. Talk about this with your attorney because there may be reasons that your attorney does not want that person to sit in. Likewise, you may be asked to attend other depositions such as the deposition of your treating doctor. Each case is different but this can be quite helpful in most cases. Please talk to your attorney about that as well.
What to Bring
Generally, by the time your deposition is scheduled you will have given your attorney all the document and evidence you had. However, there are always exceptions.
Top Ten Tips
- Be a good listener. People are worried about what they are going to say at a deposition. You do not want to say the wrong thing, but actually if you are a good active listener and you think about what is specifically asked and answer only that question you will be fine.
- Pause briefly before you answer. I mentioned earlier that the Judge is not present. As a result, if your lawyer does not think the question was proper or does not like the form of the question, you need to give your lawyer a chance to “object” on the record. If that happens just pause and listen. You don’t have to try to remember the question. You can ask the court reporter or the defense attorney to repeat the question once the lawyers are finished with their discussion. Listen to what your lawyer says in the objection. Often you will understand why your lawyer is objecting. She might say, “Objection asked and answered.” This means your lawyer believes you were asked that question earlier in the deposition. If this is correct, the other attorney is trying to get you to answer it differently so if your lawyer tells you to answer then you should just answer again consistently with your previous answer. Another objection may be related to attorney-client privilege. If you hear that do not speak and listen to your attorney. She may tell you not to answer a question. If that is the instruction then you follow your attorney’s advice. Since the judge is not present they may either call the Judge or they will wait and submit the issue to the Judge in the form of a written motion.
- The best three answers, if they are accurate and responsive to the question, are YES, NO or I DON’T REMEMBER. If the defense attorney wants more explanation he or she will ask. If not, that is OK too. The more you talk and talk in an answer about things that were not asked the more likely it is that the defense attorney will get another idea about a whole additional set of questions based on your chatter. This is your sworn testimony; you want it to be short and accurate when you are asked about facts and circumstances of the event. You may have to go into more detail when asked about your injuries or your limitations; those questions cannot be answered with a one-word answer.
- You must give a verbal answer. A shake or nod of the head is not a verbal answer. Most witnesses do this at least once because we are all used to talking in a dialogue with friends. However, for sworn testimony you need to give a yes or no. Usually one of the lawyers or the court reporter will prompt you by asking, “is that a no?” They are just trying to get an accurate record of your sworn testimony.
- No need to worry if certain questions are not asked. It does not mean that your attorney cannot ask you those questions at trial. Sometimes for strategic reasons the defense attorney may not want to ask a lot of questions about your injuries or losses. This does not mean that your attorney cannot put on full evidence of all of your losses at trial.
- If you are asked about a document or shown a document take your time. People tend to rush and may feel uncomfortable if a question is pending and there is silence before the answer. Do not rush. The silence is normal and you should not rush. Even if you think you know the answer take your time and read what it says and then if you have forgotten the question always ask to have it repeated before you answer. Remember, this is your sworn testimony; it must be 100% accurate.
- Never guess or speculate. Most people want to be helpful and try very hard to answer all the questions asked but you are under oath and you do not want to guess or speculate. Your attorney will review the key facts with you before the deposition. If you are asked something that you are not sure of then you should not guess. When you guess and you are wrong it can cast a bad light on all of our testimony.
- Just because the defense attorney asks a question in a certain way does not mean that you know the answer or that you should answer as he is suggesting. Remember, the defense attorney’s job is to make sure you do not get justice. He is trying to win for his client either by proving his client is not responsible or by showing that your injuries are not his client’s fault. Be careful when you find yourself agreeing to several questions in a row. The attorney may slip a key question in that the answer is “no” to and if you are not careful you might say “yes”. Especially toward the end of the deposition when you are tired.
- Take a break about every hour just to clear your mind, stretch your legs and get some air. Being deposition is very difficult and even though you may not recognize it when you are in the deposition, it is tiring on your mind. It is important to give yourself a break so you can continue to be a good listener the entire time.
- Watch out for the extra nice defense attorney. Do not let your guard down. Remember that the attorneys on the other side of the case have a job to do and that job is to try to win the case and try not to give you fair compensation for your injuries. No matter how nice and friendly they are you need to pretend they have a big “E” for enemy on their forehead. Of course, we can be civil but keep you guard up.
After the deposition stay quiet until the Court Reporter and the other attorneys leave. You will want to talk about it with your attorney and that is natural but wait until you are in a private setting.
When your lawyer sends you the transcript, it is important to read it carefully for accuracy. The court reporters are very good but occasionally they miss a word like “not” which is very important to your case so take the time to read your deposition cover to cover and let your lawyer know right away if there are any mistakes. In some states there are strict time limits for making corrections.
If you have question or want more information please call 202-803-5800 or email us to learn more.