The discovery deposition is one of the most important stages in the litigation of a personal injury lawsuit. It is during the discovery deposition that the insurance company’s lawyer gets the opportunity to question the accident victim in person about the accident and the injuries suffered. Similarly, at the defendant’s deposition, your lawyer is able to discover much about the insurance company’s version of the accident. See Form 11 for a sample list of deposition questions. Success on deposition day vastly improves the chance of a prompt and fair settlement.

   Discovery depositions give the attorneys the chance to pick the mind of the individual that is being deposed. Depositions are usually held in the office of one of the lawyers. The testimony is taken under oath and is recorded by a stenographer. Thus, extreme care must be taken to accurately describe the accident and resulting injuries. By confronting an individual at trial with clearly erroneous deposition testimony, an attorney can devastate that individual’s credibility in the eyes of the judge, jury or arbitration panel. That is why thorough preparation prior to deposition day is a necessity.

   Perhaps the most important advice your lawyer can give you during preparation for the deposition is to tell the truth. Even the craftiest lawyer has trouble tripping up an individual who speaks the truth and sticks to it. Clients sometimes think they can outsmart the other lawyer by bending the truth in their favor. More often than not, the other lawyer can figure out when this is happening and can expose the lie. An otherwise meritorious case can be lost by a small lie. Juries, judges, and arbitration panels have no sympathy for liars, even injured ones.

   It is also vital not to guess during a deposition. Frequently the other lawyer asks questions to which the witness simply does not have the answer. It is important to remember that a deposition is not a multiple choice test. You do not score points by occasionally guessing correctly. Stick to the facts and testify only to that which you personally know.

   Every trial lawyer has seen his or her client’s case reduced in value by an incorrect guess. "I don’t know" is a fair answer if it is true. The time spent preparing for the depositions will ensure that the witness does not have to rely on this answer too often. "I don’t remember" is also fair if you truly don’t remember. Sometimes depositions are taken years after the accident. It can be nearly impossible to recall the minute details attorneys routinely seek during a deposition. Again, preparation will minimize the need to rely on this answer. It’s far better to admit that you don’t know the answer to a question, or that you don’t recall the answer, than to venture a guess.

   Another key to a successful deposition is to know when to stop answering. Often the defense lawyer uses the deposition as a "fishing expedition" in which he hopes to hook absolutely anything of use to the defense case. That is why many questions that seem completely irrelevant to the accident are asked. Believe it or not, this is generally permitted by the courts.

   Since the other lawyer is attempting to pick your mind, you must not make his or her job easier by responding to each question with a long, drawn out answer. If a question can fairly be answered with a "yes" or a "no," by all means do that and say no more until the next question is asked. Your lawyer may even tap you on the shoulder or use a prearranged signal if your answers are getting too detailed. This signal lets you know to keep your answers brief. If you give the other lawyer enough ammunition, you increase the likelihood that eventually he will find something to use against you. That is why brief answers are usually best.

   It is vital that you completely understand each question before attempting to give an answer. It is not possible to give a truthful and accurate answer to a misunderstood question. The defense attorney will repeat or rephrase the question if requested to do so.

   It is important to speak loud enough so that all in the deposition room can hear the testimony. You should keep your hands away from your mouth. To some attorneys a hand in front of the mouth implies that you have something to hide. Questions cannot be answered with a nod of the head or an "uh huh" or an "uh uh." You must say "yes" or "no" so that the stenographer can record the response.

   You should not exaggerate your injuries or losses but, you should not hesitate to explain fully all of the injuries and damages caused by the accident. Watch out especially for questions such as, "Did you suffer any other injuries?" A negative answer at the deposition can limit you at the time of trial. You must think long and hard before committing yourself to such an answer. If you cannot think of any other injuries or complaints, it is fair to tell the other attorney, "That’s all I can think of right now." This keeps your options open in case you’ve simply forgotten about an important part of your claim. It’s easy to forget during the pressure of a deposition, especially if the other attorney is utilizing a combative style in his questioning.

   You should not try to memorize the accident, injuries, and treatment. Justice requires only that you tell your story to the best of your ability. A memorized recitation of the events appears contrived and manufactured. Some degree of spontaneity adds settlement value to the case.

   Since you are trying to make a favorable impression upon the defense attorney, it is important to dress neatly and to treat all persons in the deposition room with courtesy and respect. There is nothing to gain by arguing with or insulting the defense attorney. After the deposition this attorney will report his or her impressions of you to the insurance company. If this attorney thinks that your attitude will rub the jurors the wrong way, the insurance company will be inclined to make a relatively low settlement offer.

   The most import aspect of the discovery deposition is you and the appearance you make. If you give the appearance of fairness, honesty, and earnestness, and if you keep in mind these suggestions, you will have taken a great stride toward the successful settlement of the litigation.