Depositions The discovery deposition is one of the most important stages in personal injury litigation. During the discovery deposition, the insurance company’s lawyer has an opportunity to question the injure plaintiff in person about the incident and the injuries. Similarly, at the defendant’s deposition, you are able to discover much about the insurance company’s version of what happened. The discovery deposition allows the attorney to pick the mind of the deponent to assist in trial preparation. The defense lawyer will watch carefully as your client answers the questions and will prepare an evaluation of your client in a report to the insurance company. The deposition is usually the first opportunity the opposing attorney has to see your client. It is important to make a good impression. The lawyer will also look to obtain admissions from the plaintiff. Admissions are facts the opposing lawyer will attempt to introduce at trial because they may help that lawyer defend against the case. Appendix 12 has a sample list of deposition questions. Success on deposition day vastly improves the chance of a prompt and fair settlement. Depositions are usually held in one of the lawyer’s offices. In some counties, they must be held at the courthouse. Judges, juries, and arbitration panels are not involved. Most of the objections available at trial do not apply. The opposing attorney is free to ask practically any question. The questions need only seek information that is reasonably calculated to lead to the discovery of admissible evidence. The testimony is taken under oath and is recorded by a stenographer (court reporter) for future use in the lawsuit. Every single word is recorded. Thus, the client must take extreme care to accurately describe the incident 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 must. Preparing for Depositions You and your client should meet in advance to prepare for this extremely important part of your case. Getting your client ready for his deposition is a crucial part of the process. Often the prep session is done on the day of the deposition, but meeting a day or so in advance is better. This helps ensure that the prep session is not rushed. Set aside at least an hour for this session, more if the case is complex. You need to get ready for the prep session as efficiently and effectively as possible. You should go through every document in the file. Every document that has information relevant to the deposition needs to be segregated so that it can be organized for use at the prep session. Many of those documents need to be highlighted with yellow marker so that the key items can be accessed during the prep session. Think about how you want the prep session to go and then organize the documents so that it goes smoothly and in a logical order. At the meeting, familiarize your client with the basics of discovery depositions. Ask your client any questions you anticipate could be asked at the deposition. Listen carefully to the answers so that you can correct misstatements and refresh your client’s recollection. It is easy to forget important details from an event that happened long before the deposition. If you have done a good job building and organizing the file, you will be able to help your client recall these details. It is permissible to suggest different ways to truthfully answer difficult questions. Much of the time, you will simply review the information in the file with your clients and see if they grasp the content and significance. Again, it all depends on the case and the client. Listen to the client’s questions and concerns during the prep session and respond appropriately. This will help build the client’s confidence, which is important during a deposition. Sometimes I send documents from the file to the client in advance if I think the client will study them. This will help our prep session go more smoothly. Often I send a copy of the police report. Or I might send some of the medical reports, as these will help the client recall the injuries and treatment better. In most cases, I prepare a Summary of the Medical Treatment. This summary helps with the prep session. It also helps me understand the treatment better. I send it to the insurance company’s lawyer since it shows that I am preparing for trial. It also helps the insurer determine the value of the claim. Here is a sample Summary of Medical Treatment.
SUMMARY OF MEDICAL TREATMENT
METHODIST HOSPITAL Visit: July 8, September 2, 2013
BARA CUDA, D.O. Visit: July 17, 2014
WILKES BOOTH, M.D. Visits: September 25, October 24, November 2, 29, 2013 January 7, 28, August 12, 2014
PENNSYLTUCKY HOSPITAL Visits: October 12, 15, 23, 24, 2013
SUPERNOVA CARE Visits: November 13, 16, 20, 28, December 4, 12, 17, 2013 January 16, 23, 2014
HEALTH INSURANCE LIEN: $5,132.77
Many times your client will attend the depositions of other witnesses. How clients conduct themselves during these depositions is also important. More than once I have witnessed clients who have done severe damage to their settlement chances by bad behavior at this time. You must tell your clients in advance not to do this. Some plaintiffs, during the defendant’s deposition, will feel tempted to express disapproval non-verbally for the defendant’s testimony. This usually takes the form of facial expressions showing disgust. There are not many things that infuriate defense counsel more than this. Defense lawyers are primed to dislike plaintiffs. If the plaintiff acts disrespectfully toward the defense lawyer’s client, all hopes of settlement may go out the window. Telling the Truth Perhaps the most important advice a lawyer can give to a client during preparation for the deposition is to tell the truth. Even the craftiest lawyer has trouble tripping up an individual who speaks truthfully and sticks to it. Clients sometimes think they can outsmart the other lawyer by bending the truth in their favor. Usually, the other lawyer figures 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. Guessing It is vital not to guess during a deposition. Frequently, the other lawyer asks questions to which the witness simply does not have the answer. A deposition is not a multiple choice test. Your client will not score points by occasionally guessing correctly. Deponents must stick to the facts and testify only to that which they personally know. They should not attempt to give estimates of time and distances unless they can give an accurate estimate. A deponent who is estimating should state that fact. Every trial lawyer has seen a client’s case reduced in value by an incorrect guess. “I do not know” is a fair answer if it is true. The time spent preparing for the deposition will ensure that the witness does not have to rely on this answer too often. “I do not remember” is also fair if the deponent truly cannot recall. Sometimes depositions are taken years after the accident. It is nearly impossible to recall the minute details attorneys routinely seek during a deposition. Again, preparation will maximize your client’s recall. It is far better to admit not knowing or being unable to recall the answer to a question than to guess. Stop Answering Another key to a successful deposition is to know when to stop answering. Often the defense lawyer uses the deposition as a fishing expedition to hook anything of use to the defense case. That is why many questions that seem completely irrelevant to the accident are asked. This is generally permitted by the courts since the question need only be reasonably calculated to lead to the discovery of admissible evidence. That is a very broad standard. Since the other lawyer is attempting to pick your client’s mind, your client must not make defense counsel’s job easier by responding with long, drawn out answers. If a question can be answered fairly with a yes or a no, your client should say that and no more until the next question is asked. You may even tap the client on the shoulder or use a prearranged signal if the answers start getting too detailed. This signals the client to keep the answers brief. Or you may simply say, “You answered the question,” again trying to get your client to stop answering. If your client provides the other lawyer with enough ammunition, it increases the likelihood of eventually providing something to be used against him or her. Long answers lead to more questions, which, if they produce more long answers, lead to even more questions. One of the main goals of depositions is to get through them without doing any damage to the case. That is why brief answers are usually best. Again, what you do not say cannot hurt you. Understanding It is vital that your client completely understand the question before attempting to give an answer. It is impossible to give a truthful and accurate answer to a misunderstood question. The defense attorney will repeat or rephrase the question if your client requests this or if you object. Keep a sharp lookout for questions that assume your client testified to a fact when she has not done so. For example, the lawyer may ask how fast your client was going when she collided with the other motorist. If your client answers, it will be assumed that she struck the other guy when, in reality, she was the one that was hit. Taking Time The client should be instructed to wait for the lawyer to finish asking the question before answering. Clients often respond before the entire question has been asked. They may assume they know what the remainder of the question will be. If that assumption is incorrect, they may give an inaccurate answer. The client should give the question the thought required to understand it, and then give the answer. Speaking Clearly The client should be instructed to speak slowly and clearly and not to be afraid to look the other lawyer in the eye. It is important for the client to speak loud enough so that all in the deposition room can hear the testimony. The client should keep her hands away from her mouth, as this implies she has something to hide. Questions cannot be answered with a nod of the head, an “uh huh,” or an “uh-uh.” The deponent must say “yes” or “no” so the stenographer can record the response. This keeps the record clear so that there is no confusion when the lawyers review the transcript. Do not worry if occasionally your client slips up and says “uh-uh” instead of no. Everyone does this during their deposition. Instructing Not to Answer Occasionally a lawyer will ask a question in a deposition that is truly beyond the scope of discovery. For example, if a lawyer inquires about a conversation the client had with you, you will object and instruct your client not to answer. That conversation is protected by the attorney-client privilege. The lawyers may spar about the question and whether the deponent must answer it. If necessary, the other lawyer will file a discovery motion and a judge will rule on whether your client must answer the question. Dressing and Acting Appropriately Since plaintiffs are trying to make a favorable impression on the defense attorney, it is important that they dress as if they were actually going to court. Conservative attire is always a good idea. A lot of jewelry or flashy clothing is a bad idea. Failing to dress appropriately shows a lack of respect for the legal process. If your client does not appear in business attire, the other attorney may think he or she does not take the matter seriously. The defense lawyer will report this to the insurance company and the settlement value of the case will suffer. In the deposition room, advise your client to treat everyone with courtesy and respect. There is nothing to gain by arguing with or insulting the defense attorney. Clients should be told not to roll their eyes when the defendant is telling his or her side of the story. There is nothing worse than having a defense lawyer who hates your client. Remember, after the deposition, this attorney will report his or her impressions of your client to the insurance company. If the attorney thinks your client’s attitude will rub jurors the wrong way, the insurance company will make a relatively low settlement offer. Final Thoughts on Depositions You must tell your client not to exaggerate injuries or losses. At the same time, your client should not hesitate to fully explain all 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. Tell the client to think long and hard before committing to such an answer. If he or she cannot think of any other injuries or complaints, it is fair to say, “That is all I can think of right now.” This keeps your options open in case your client has simply forgotten about an important part of the claim. It is easy to forget during the pressure of a deposition, especially if the other attorney uses a combative style of questioning. Most of the time defense attorneys will not employ a combative style. They want your client to relax and give long answers. Occasionally the questions will be sharply worded, and the client must maintain composure. The client should not try to memorize the accident, injuries, and treatment to the nth degree. Justice requires only that witnesses tell the story to the best of their ability. A memorized recitation of the precise dates of treatment and other details of the case appears contrived. Some degree of spontaneity is desirable. Clients fret they will not be able to remember every detail. I always tell them to relax and just do their best. That is usually sufficient, as long as we spend enough time during our prep session. The most important aspect of the discovery deposition is the appearance made by your client. A client who conveys an appearance of fairness, honesty, and earnestness will have taken great strides toward the successful settlement of the litigation. If you would like to read more about discovery depositions, I highly recommend Taking and Defending Depositions, by Stuart Israel. This publication is concise and user friendly. It is a thorough and well thought out summary of the strategies, tactics, and mechanics involved in discovery depositions. You can order it at: www.ali-aba.org/bk14. Also, Knowles Law Book Publishing, Inc., sells a DVD called Preparing the Witness for a Deposition. You can order it at www.knowlespublishing.com.
