You had an accident, hired a law firm, and became a plaintiff in a lawsuit. Your lawyers interviewed you, investigated the accident scene, took photos, got the police report, and ordered your medical records – everything is going beautifully. They tell you that after your deposition you will likely get a nice settlement offer.
Then it’s time for your deposition, where the lawyers for the other side ask you questions about your accident, your injuries, and your life. It sounds so simple – this is your time to shine – to tell your story as only you can – after all, it is your life. . . but then you crashed and burned. You didn’t remember accident dates or doctor’s names – the accident seemed forever ago, you said. You had no idea if the street where the accident occurred had two lanes or four lanes – you said it was dark out, but the police report says it’s 4:45 in September when sundown is 3 hours later.
But then it got worse. The attorney began asking you questions about other accidents you had been in prior to this accident, and the names of doctors who treated you 10 years ago – you got annoyed – they had been asking you questions for two hours and they kept asking the same questions over and over in different ways – you were tired and hungry – you started yelling at the defense attorney – you dropped an “F-bomb” – you completely lost it. Was it your attorney’s fault for not preparing you effectively? Maybe. . . and if your attorney screwed that up, all I can say is the next time you, a family member, or friend, have an accident, you should call me instead. But look, most attorneys do at least some preparation of a witness and, like school, you get out of it what you put into it. So, if things went that far south, then you probably need to own some of this as well.
But my goal here isn’t to make you feel bad. It’s to let you know the mechanics of a deposition, what the defense lawyer is really trying to find out and what you could have done to make the day better.
What is a deposition?
So, let’s first discuss the term deposition, also called an EBT (examination before trial and also known as an examination under oath). It’s an opportunity for the other side to take your testimony under oath. A court reporter takes down every word you say, and your testimony then gets reduced to a written transcript. Why? Because if you are unavailable at the time of trial – in a coma, jail, deceased – the testimony will be put into evidence and read to a jury, so they can hear your description of the events. However, if you are available at trial, and you testify, this same document will also be used to cross-examine you and destroy your credibility if you change your story between the time you gave your deposition and the trial.
What is the defense attorney trying to accomplish, and why did your deposition go so badly?
Finally, we are at the good part of this blog, and it’s time for me to put on my instructor’s hat and teach.
What was the defense lawyer looking for when he questioned you? Well, one goal was to hear your complete story – but it’s not his main goal – because he has better sources. Think about it. Let’s say you had an auto accident and suffered a leg injury with surgery. The police report says the car hit you in a crosswalk. What can you possibly add to that? The doctors then write that your leg was fractured in two places and needed plates. Are you qualified to give better medical testimony than a doctor? No, the defense lawyer really wants to hear you fill in gaps in the overall story, so he has a complete picture and won’t be surprised at trial. Then, once he has your testimony, he will use it to develop his strategy and use inconsistencies in your account to beat you up at trial.
But his main goal is to look at your strengths and weaknesses and decide if he needs to pay big money now to get you to go away or take his chances at trial. Until the day of your deposition, he’s never met you. He wants to know if you’ll be liked by a jury; whether you are believable and whether you have a good recollection and can sell the case. He will watch you like a hawk. Are you limping? Did you bend down to pick up something that dropped? Are you wearing old man shoes to ease the pain or slick suede loafers to get the girls? He will also analyze your clothing, tattoos, piercings, haircut, etc. He will sniff to see if you are a smoker or have alcohol on your breath. Why? Because we, as trial lawyers, never know what your jury is going to look like. If we get a conservative bunch of jurors, they might roast you for being different – so everything here is in play and fair game. He is analyzing the risk/reward and in your deposition, he got you to implode and now you may have bought yourself a trial, instead of taking home a big settlement.
How to be a good witness on your own behalf
Now that you know what you did wrong, there are a few simple things you can do, prior to a deposition, that will help you be a dynamite witness on your own behalf:
- Dress Up for the Deposition – don’t overdo it by wearing a suit if you don’t typically – but try a dress shirt and khakis, remove a piercing, cover a tattoo.
- Know the Deposition’s Length – you might be at a deposition for 1 hour, but if you have complicated medicals, you could be there for 6 hours. Human beings don’t do a lot of things for six hours straight. People get tired cranky. So, get a good night’s sleep, bring snacks, ask for breaks and expect the worst.
- Keep Your Temper in Check – attorneys know you might get tired. Then they try to get you riled. If you have a fiery temper and they think they can let the jury see it, they might not settle and take their chances at trial.
- Visit the Accident Scene – if an accident occurs in 2018, you might not be deposed for 2 years. That’s a long time. A visit to the scene will bring back memories. How the lights are timed – locations of “do not cross” signs – whether any obstructions blocked your view.
- Look over your Medicals – don’t say “I don’t remember if it was my right or left leg”. How bad could your injury have been if you can’t ever remember which leg? Ask your lawyer to send you a medical outline and some pleadings in advance. Review them like you’re studying for a test. Nobody expects you to say, “I suffered a posterior horn tear at the medical meniscus and underwent an arthroscopy”. But you should be able to say, “I suffered a right knee tear and needed surgery, which required 6 weeks of rehab”.
- Look over photos – are you prepared to discuss them? Will certain angles or distances throw you off? If you are uncertain what you are looking at when a defense attorney shows you something, say “I don’t know what I’m looking at”.
- Discuss Speeds/Timing/Distances with your Lawyer – not everybody is great with measurements and timing. Talk over the event with your lawyer in advance. Most accidents are very quick. They take seconds. As for measurements, point to a photo and say I started crossing over here and got hit over here – how far is that?
- Don’t guess when answering questions – attorneys ask a ton of questions – many are stupid – you’ll be asked “how fast was the car traveling 3 seconds before it hit you?” Say, I don’t know. A good attorney will ask “Ok, was it traveling faster than 10 miles per hour”? You say yes. “More than 20?” Yes. More than 30? I don’t know. Then he’ll say, “so faster than 20 but less than 30?” You agree, and just like that he got his answer, and you didn’t have to guess.
- Don’t be a volunteer of information – I call this the “Little Old Lady and the Pocketbook Rule”. Let’s say you slipped and fell. An attorney asks you what kind of shoes you were wearing. Instead of saying sneakers, you reach into your bag and pull out an old, bald, torn pair of sneakers from the bag and say, “I was wearing these”. You never showed them to your lawyer, and one look at the sneakers tells everyone exactly why you fell –your sneakers tried to kill you.
- Tell the truth – I saved this for last because this is where defense attorneys begin to smell blood in the water. Once you are caught in a lie, even in a tiny one, your credibility is ruined. Then you’ll try to outthink the lawyer and explain it away, but his job is to think fast on his feet, and he catches you in another lie . . . and the problem continues to be compounded. While the truth sometimes hurts a case, it is never as bad as a lie. Every case has a weakness, so we don’t run from them with a lie, we deal with them head-on with the truth.
Here’s the bottom line. Let’s say you earn $40,000 per year – you work 50 weeks each year for 40 hours each week, so 2,000 hours to get that salary. Now you have a lawsuit that might pay you $300,000 – more than 7 years of annual salary – is it not worth putting in a little time and effort to help your case? You don’t have to answer that – you know the answer.