What You Need to Know about Your Deposition in Your Auto Accident Case?

Today I would like to talk with you about depositions, which are a very well known and common part of litigation today and I would like to talk to you about three aspects of depositions.  First, we will discuss what is a deposition, where does it fit within the framework of your lawsuit, the other discovery going on in the case.  Next, we will look at what are the mechanics of the deposition and what you can expect to be occurring in the deposition room during the deposition. Lastly, we will talk about how to comport yourself as a witness, some do’s and don’ts about deposition etiquette, some suggestions as to how to best approach responding to questions, and we will close by looking at the big picture, trying to tie it together so that your experience both at the deposition, then through the rest of your case including ultimately either negotiations or trial. The goal is for your case to run smoothly.

First, what is a deposition?  It is a “discovery” procedure conducted as a result of the Rules of Civil Procedure the court has adopted to flesh out all the facts of a given case. A deposition is a court hearing, but it takes place outside of a courthouse.  It is almost always conducted in either a lawyer’s office or a court reporter’s office. The depositions are scheduled largely for the convenience of you as a witness and of the lawyers.  The location can be changed from the offices of the attorney scheduling the deposition to a location closer to you, depending upon certain circumstances, and the deposition can proceed as the Notice of Deposition says, from day to day, although usually in a personal injury case, they are half a day or slightly more, and occasionally with complex matters, it might take a full day. Employment cases could, depending upon the circumstances, be longer or shorter.

There will be a court reporter present who will swear you in to tell the truth, the whole truth and nothing but the truth, just like on television or to otherwise affirm to telling the truth, depending upon certain religious and philosophical predilections of people.

The attorney for your opponent will be there.  If you are a plaintiff, a person bringing the lawsuit, the attorney taking your deposition most likely will be the attorney representing one of the defendants that you have sued. All of the parties to that case will be represented by lawyers. Usually the parties themselves will not be there, although each party has a right to be there.  Your attorney will be there.  I am always sitting next to my client at a client’s deposition. There may be other assistants or associates to one of the law firms present in the room also.

Normally the accommodations are comfortable, but you should be aware that you have the right to be comfortable if you need to take a break to clear your head or to use the facilities or have a glass of water. Simply indicate that you would like to take a break and the lawyers will accommodate you.  Usually, you will have to answer any pending question first, but then a break can go forward.

A deposition proceeds with the lawyers taking testimony much like you are in court.  The court reporter, after swearing you in, will take down everything that is said by you and anyone in the room while we are “on the record” and the lawyer who scheduled the deposition normally is the one who starts asking the questions.  Questions are received one at a time with your answers and occasional objections or comments by others in the room that we will talk about in a few minutes.  Documents or other items such as photographs may be marked as exhibits and this proceeds pretty much like it is in court except for the fact that there is no judge present, no courtroom, no court officer, and no jurors.  The testimony can be used at some point during the rest of the case.

The next question we will face, our second question, is where does a deposition fit into the spectrum of discovery in your case.  Discovery starts very typically with written questions which are answered in writing and written requests that a party produces certain documents and tangible objects.  Interrogatory answers which are signed under the pains and penalties of perjury by a client are normally prepared with substantial, if not nearly, exclusive attorney input.  They are very good for cataloguing facts or items.  They are very good for describing matters which a person perhaps would not remember off the top of their head.  Some research and effort has to go into answering interrogatories.  In a medical case, a case involving and accident with injury or a personal injury or bodily injury case, a typical interrogatory asks for a clamant to itemize medical bills. Obviously a witness at a deposition could not be expected to remember that type of information, but the effort is made to as fully and completely as is realistically possible provide that information in an answer to an interrogatory. Interrogatory answers also have limitations.

Requests for production of documents obviously embraces requests to see medical records, photographs, employment and income records and things of that sort. Sharing this information I intended by the court to put both or all parties to a case in a position where they all can fully appreciate the strengths and weaknesses of the case from all perspectives and settlement theoretically becomes more likely. Discovery also is intended to make the trial of a case run more smoothly. The days of “trial by ambush” have been closed by the liberal discovery rules of most courts.

A lawyer cannot effectively follow up on an interrogatory answer the way he can at a deposition by asking further questions.  Depositions are live and the lawyer has the opportunity to ask you questions and then follow up to his or her heart’s delight on the other factors around that issue.  For example, someone may ask you what the color of the light you were facing was when you first saw it.  Your answer, if you were asked in an interrogatory, that it was green, might be accurate and clear, but it might also obfuscate other facts that are simply not able to be asked.  For example, what was the color of the light as you approached it from 100 feet away or 300 feet away and what did you do when you first saw it at each of those locations.  At a deposition, a lawyer can request that you draw a diagram of that intersection and then have you place your thoughts about where you were when you first saw that traffic light to be green on the diagram, and that obviously cannot be easily accomplished in another fashion.

At a deposition a lawyer has an opportunity to size a witness up.  If a witness is easily aggravated or angered or quick to anger, that lawyer will make a note of that.  If the witness makes a good appearance and is likely to make a good witness in their own behalf, the lawyer will make a note of that.  That goes into calculate the lawyer’s view of what that case is worth and what should happen.  A plaintiff who is genuine and sympathetic and credible has a better case than one with opposite characteristics. Similarly, if the lawyer’s observations are negative, that will impact his or her views of what that case is worth and what a jury might do with it.

Depositions are also extremely important because once you have said something clearly and unequivocally at a deposition, courts will not permit you to change or vary your testimony.  And that testimony provides effective cross-examination fodder to impeach your credibility with a prior inconsistent statement. What you say should be the product of good, solid preparation rather than something off the top of your head.  Many lawyers just permit a witness to go to a deposition with deposition preparation which is limited to telling the witness to tell the truth. Perhaps they believe that they have properly prepared a witness, but at Flynn Law Firm we know that you are entitled to know what the deposition is likely to cover in terms of substantive issues and what to expect in terms of conduct at the deposition so that you are fully prepared.  It ultimately does you a disservice to not have you prepared and comfortable and ready to expect questioning on certain issues. To be properly prepare you should have gone over the case and investigation materials with your lawyer, discussed the purpose and practices of a deposition, and how it is likely to be important in your case, and you should enjoy the opportunity to have your lawyer in effect depose you by asking you questions which are likely to mimic what you will be asked at the deposition.

In terms of preparation at our office, we go over the file, discuss the issues, go over the pertinent documents and this is all activity that you as a client and me as your lawyer have done together a number of times, from our first initial client conference to each of our update client conferences to our interrogatory answer preparation.  If there are photographs, you should have seen them.  If there are photographs, you should see them and we should discuss them.  You lawyer wants to know what you are going to be talking about at your deposition just as if we were in court.  You really have a right to know what the issues are, what negligence is or carelessness, what causation is and what is involved in damages all is part of properly preparing yourself for your deposition.  Shame on the lawyer who does not give you that kind of attention prior to your deposition!

This leads us to our next and last issue, how should you comport yourself at your deposition and what preparation are you entitled to receive.  At your deposition, how should you act?  Well, first of all, you should answer each question that is asked and answer it based on your own knowledge.  I used to tell people tell the truth, tell the whole truth and nothing but the truth, and while that is absolutely true that that is what you should do, the surer way to achieve that goal is to answer the question directly and based upon your own knowledge.  If you know it, it is true, and things fall along into place properly and naturally with that approach to a deposition or to trial testimony.

As I mentioned, answer the question directly when it is asked. Do not argue or try to out-lawyer the lawyer. That is a battle even the cleverest witness will lose and there is no point to trying to do anything other than answer the questions as asked. Do not try to figure out where the lawyer is going with his questioning. The key to you having a successful deposition is simply to answer the question that is asked based upon your own knowledge and to do so in a positive fashion.  By that, I mean, every witness that I bring to court, whether the witness is a plaintiff or a defendant or an expert, is there to be what I consider, a friend of the court.  By that I mean you want the judge and the jurors and even the other lawyers to know that the matter whether you are a plaintiff of a defendant or an expert, you are there to give the best information you can give in response to the questions of the lawyers and you are not there as an advocate for a cause, you are there to tell the truth and just the truth.  And a witness who is cooperative and friendly and who is not defensive and does not argue with the other lawyer or worry about where the lawyer is going with his questioning goes a long way towards successfully demonstrating to the courtroom that he or she is a friend of the court.

Also, in that same vein, you are entitled to a clear question.  If you do not understand a question then politely ask to have it rephrased.  Sometimes lawyers ask convoluted questions or questions that imply things that are understood by the lawyer but not by anyone else in the room.  You are entitled to a clear question so that you can provide a clear response, and actually the lawyer, even if he asks the question improperly or poorly, is entitled to the same thing.  He is entitled to ask a good question to get a good answer.  Do not guess or speculate; base everything on what you know to be true.

Wait until the question is completely asked.  Occasionally, your lawyer will want to object to a question and to make a statement or engage in a colloquy before a question is answered.  Do not cut the other lawyer off; do not cut the questioner off, wait for that question to be completed.  The court reporter can only take down one voice at a time, and that is how the records in cases get messed up when people are talking over each other.

In conclusion, a deposition in a case is very important.  It is your day to put your best foot forward.  You are not trying to persuade the other lawyers of anything in particular, but you are letting them know what your case is to the extent they want to ask questions about it.  Their goal is to flesh out what your case is and what you know as a fact.  Their goal in that regard is to narrow what you can say at the trial to what they learn at the deposition.  You may occasionally hear your lawyer object to a question.  Ignore my objections.  Your job is to answer the question that is asked, but pause after the question so I have an opportunity to interject an objection while the other lawyer has had an opportunity to actually fully ask you the question.  Lawyers are not supposed to send messages to their client through verbal objections when they say a lot.  Do not let any objection or comment by your lawyer send a message.  Your job is to answer every question unless your lawyer suggests on the record otherwise.  If you follow these tips and have a broad understanding of what discovery is and a deposition is and if you are well prepared by your attorney, your case and your deposition should go pretty positively.