This is a packet I created to help clients prepare for their depositions. After the initial letter, there are two other lawyer's preparation letters (used with their permission), a sample of the questions I ask during a deposition, and several pages of a deposition from a Plaintiff who ignored this advice. This package would also contain a copy of the client's answer's to Interrogatories, Admissions, and Production of Documents.
RE: Your Deposition
Your oral deposition has been scheduled. Your deposition will be taken on someday, month day, year at 10:00 a.m. It will be at the offices of Lawyer X. If you need directions, my office will provide them at your meeting with us. My office has established a meeting at my office to prepare for this deposition on someday, month day, year at 3:00 p.m. If, for some reason you cannot make this appointment, please contact my office immediately to schedule another appointment.
Because your oral deposition is important, I am providing you with a large amount of information so you can prepare. This information has been developed with the understanding that you will study it and prepare for our meeting. This deposition may be the deciding factor in your case. At this oral deposition, you will be asked questions, under oath, and the questions and answers will be recorded. You may purchase a copy and it is highly recommended that you do so. Many times, whether or not your case will go to trial and how much money the other side is willing to offer, depends on how you appear at your deposition. Please take the time to read your answers to your interrogatories, study the documents produced, the police reports, and the admissions. Take a look at the sample deposition questions. These should give you an idea of how the questions about the accident may go. Finally, take a look at the eight pages from an actual deposition which I have also included. This person did not prepare for her deposition and it shows. Do you believe the answers provided? Neither did the other attorney. This person received a very low offer for his case and did not do well at trial.
Remember these basic rules:
1. Tell the truth. No fudging, no shading, no exceptions to this rule.
2. Your testimony is extremely important to the case. Remember, what may seem obvious to you may be revelation to the lawyer deposing you. You must take the deposition seriously and be prepared.
3. This is serious business. No chit-chat or small talk with the other lawyer. No sarcasm, no facetious remarks. The cold transcribed record will not get the joke and it will reflect badly on your testimony. Remember: No matter what, no matter how nice he or she may seem, the other lawyer is not your friend.
4. Listen to the question. Take your time. Make sure you understand before you answer. If there is any part of it you do not understand, say so, and ask the attorney to repeat or rephrase it so you understand what you are answering.
5. Answer the question not some other question just the question you are asked. Say no more than is necessary to answer the question asked. Do not volunteer extra information or explanations. In other words, you should say as little as possible to answer the question, if you can answer it yes or no, do so without explanation. If the other attorney wants more information, let him ask follow up questions, do not volunteer. If you must explain, give out as little information as possible.
6. Do not guess. If you do not know the answer, say so. If you do not remember the answer, say so. It is your job to give the answers you know not to speculate about the answers you do not know. It is okay not to know or remember every detail or date. But if you answer, that is the answer that will follow you throughout this lawsuit. Answer only what you know.
7. You are the witness not the lawyer. Do not argue with the lawyer for the other side. Do not object. Do not try to sell the case. Just answer the questions.
8. Watch out for questions that paraphrase your answers. A lot of times the lawyer may take your ideas and put them in other words changing your meaning in ways that you might not catch at the time. If the lawyer asks if his paraphrasing is accurate, you are entitled to say that you would rather stand on your answer and stick with the way you put it. Do not allow the other lawyer to paraphrase your answer.
9. Beware of absolutes. Watch out for questions that use the words always and never. Remember, do not ever answer "absolutely!"
10. If asked, admit preparing for the deposition. There is nothing wrong in going over your testimony in advance.
11. If I (or the attorney from my office) object(s) listen. If you are talking when I object, stop talking at once. An objection is a danger signal. It says you should put your mouth in the low gear and move your brain into high gear. Even if you think you heard and understood the question before the objection, ask to hear it again.
12. Neither I, nor any other attorney from my office is allowed to interfere with the other lawyers questioning of you. This means that we may occasionally object, but we are normally not allowed to say anything, nor do anything to affect your answers.
13. If you think you have made a mistake in your testimony, let me know before the deposition is over. We will fix it. Mistakes cannot correct themselves. Make sure that you ask for a brief break, and then explain the mistake to me.
14. If you get tired, ask for break. If you need to go to the bathroom or to get cup of coffee, say so. And if you start to get argumentative or talkative which is natural when you get tired I will ask for break myself. You can also ask for break to talk to me or the attorney from my office. This is the time to fix any mistakes.
15. Finally, what to wear to the deposition. Part of what is happening at the deposition is the other sides attorney sizing you up and determining how believable you are. If you dress down for the deposition, your believability goes down, and so does the amount of money that may be offered. So, dress up for your deposition. If you have a suit, wear it, the lawyers will be wearing their suit and so, most likely, will the Court Reporter. If you do not have a suit, for men, wear a white shirt, tie, and slacks; for women, wear a nice blouse and either a nice skirt or slacks. These are the "uniforms" of the court. The key is to make yourself look trustworthy and believable.
Once again, please take the time to go over this information before you come to our office. The better prepared you are for our meeting, the better we can prepare you for your deposition. The better prepared you are for your deposition, the more likely this case will settle and the more you will get. And, if the case does eventually go to trial, the better you will sound to a jury. (Please remember, if this case does go to trial, we will definitely need to order a copy of your deposition.) I cannot stress enough to you how important this deposition is to your case.
Thank you for your kind attention to this matter,
Preparing for Your Deposition
How to have your deposition taken without making
The standard rule in courtroom direct and cross-examination is "dont ask a question unless you already know the answer." Of course, this gives rise to the question of "if you already know the answer, why ask the question?" and thats a valid thing to ask.
You see, it the lawyers responsibility to have his or her clients case presented to the court in the most believable manner... and that is from the testimony of independent third persons who are not on the lawyers side (like the client, the clients mother, etc.).
Therefore, if the lawyer wants strangers to testify and say things that are helpful to the case, it is advisable for that lawyer to find out what the people testifying know in advance, and how they will answer questions at trial.
Once a lawsuit is filed, the court will allow each side to get some information about the other side. This process is called "discovery" and usually takes the form of written Interrogatories (questions sent to the other party), Subpoena Duces Tecem (requiring the other side to give you documents) and the thing that we are concerned with here: oral Depositions, where the lawyer can command anyone who can be served with proper notice to appear in person and answer questions.
A lawyer preparing a case will usually send the other party a set of written Interrogatories to discover (among other things) who prospective witnesses could be and what documents might be helpful. The lawyer then sends out a subpoena for the documents and also has a process server serve notice on the prospective witnesses (or anyone who the lawyer believes has helpful information) to appear at an oral Deposition, at which time the lawyer will question that person in front of a court reporter. Court reporters are notary publics and qualified to swear witnesses in, so that the witness ("deponents") testimony can be given under oath, under penalty of perjury. The reporter takes down everything that is said at the deposition and then prepares a written copy ("transcript") which the person being deposed will be asked to sign in front of a notary. This "nails down" the witness testimony, so as to avoid changes of memory that might occur between the deposition and the trial.
Remember: when being deposed, you are under oath and must tell the truth! (of course, you should always tell the truth, but especially so during a deposition). The fact that the deposition takes place somewhere other than a courtroom (usually a lawyers office) does not detract from the fact that it is still a formal court-ordered proceeding. Any problems that arise during the deposition may be brought to the attention of a judge either before the trial (so that the judge can order people to behave differently and possibly have another deposition taken) or at the time of trial.
Here are some important tips to remember, if you are going to have your deposition taken:
1) Always tell the truth to the best of your recollection. Dont worry about answering that you dont remember some particular fact. Quite often a deposition or trial may take place many years after the sued-upon event: no-one is expected to have a photographic memory of past events. Dont allow yourself to be intimidated into answering in an untruthful way that you dont want to.
2) If you dont understand a question, dont hesitate to say that you dont and ask that it be repeated or re-asked in a simpler way, so that you can understand it.
3) Dont volunteer any information! Answer the question as courteously and briefly as possible. If a one-word answer ("yes" or "no") will suffice, then use it.
4) Dont be a smart aleck! No cute answers. This is a serious part of the lawsuit, no matter how friendly the person on the other side taking your deposition may appear to be.
5) Dont rush your answer. Sometimes the other lawyer will speed up the pace of the questioning, hoping to lead you to blurt out something that you might not otherwise wish to mention. Give your attorney the opportunity to object to the question. If the other lawyer starts to shout or try to intimidate you, just follow you own lawyers instructions: if your lawyer instructs you not to answer, then dont! As stated above, if the other attorney isnt happy, the issue can be brought into court, where a judge will look at the transcript and issue a ruling, as if the judge was present at the deposition. And remember, anyone who testifies differently in court than they did in written Interrogatories or at an oral Deposition runs the risk of having their prior inconsistency being rubbed right in their nose as they sit there on the witness stand. The other attorney will point out to the court (judge, jury, etc.) that youve changed your story - and you may be made out to look like a liar. Worse than that, you also run the risk of being charged with the crime of perjury. This is rarely done, but it does happen (Mark Fuhrman, for example, during the O.J. Simpson criminal trial).
By Attorney James A. Pitts
Your deposition is not your opportunity to tell your story, but instead the defense attorneys opportunity to obtain what he or she wants, and only what the attorney wants, from you. Counsel will purposely avoid questions you might want him or her to ask which you think would enhance your claim. Counsel does not want to hear anything about any subjects selected by you. Therefore, be as laconic as possible. Answer as many questions as possible with a yes or no answer, and do not give a narrative unless required.
Never volunteer any information that is not specifically addressed in the question. Do not tell the examiner where he or she may find the answer, either. At a deposition you should adopt a defensive posture. This is not your opportunity to tell the whole story. It is not your day in court. That will come later, at the trial, when your own attorney asks you questions on direct examination. All you need to do is respond to the questions asked.
If any question is unclear, or you are not sure of the answer, you have the right to ask for the question to be rephrased or repeated. You should not guess at any answer. You may add to your answer by saying: "To the best of my recollection . . .", or "At this time . . ." or "I cannot be certain, but . . . ." Leave the door open for clarification later. If you think of a more accurate answer later in the deposition, be sure to advise the examiner that you want to return to a previous question to make your answer more complete. After the deposition, if you realize that you made a mistake, tell your attorney so he or she can supplement your deposition in the manner allowed in your jurisdiction.
Be extremely careful about answering questions designed to elicit exact details of an event, such as times and distances. For example, in motor vehicle accident cases, defense attorneys are trained to pin down the plaintiff on how many seconds elapsed between the time the plaintiff first saw the other car and the moment of impact, and how many feet the vehicles were apart when the other vehicle was first noticed. Defense counsel wants to give the plaintiffs answers to these questions to an accident reconstruction expert who will testify at trial that on the basis of the time and distance estimates by the plaintiff, the plaintiff was guilty of inattentive driving or lookout, negligent management and control, or some other violation of the rules of the road. If precise quantitative estimates are not given, defense counsels plan may be foiled. In other types of cases, questions calling for the plaintiffs recollection of exact details of any event are similarly dangerous traps. The plaintiffs memory of the events should be reviewed in advance of the deposition. A chronology of events should be outlined to the extent possible, but speculation or conjecture concerning precise descriptions, accounts, measurements and time lines should
be avoided at all cost. It is far safer to testify in qualitative, rather than quantitative terms, such as "a short time," or "a short distance," rather than using precise figures. Even approximations can be damaging if not well thought out in advance. There is nothing wrong with simply stating, "I do not recall."
Defense counsel will have two purposes for taking your deposition. The first is to obtain the information you will provide on your own behalf at trial, so that counsel is not surprised by anything and can adequately advise the insurer what you will say. Remember that the vast majority of cases are settled before trial, so it is in your interest to answer accurately and completely all questions to the extent that your answers will aid in the settlement negotiations later. The second purpose is to obtain any information that might be used to impeach you in the event that the case goes to trial. Therefore, you should not say anything inconsistent with what is in the medical records, prior statements, or other utterings. You must assume that competent defense counsel has or will obtain before trial your complete criminal arrest and conviction record, credit record, accident claims record, history of motor vehicle accidents, history of workers compensation claims, medical history, hospital record, life, disability and health insurance applications, civil court record, and any other information obtainable through public or private sources subject to subpoena. Anything youve ever said can and will be used against
Counsel will cover at least the following topics in some detail:
Physical exertion category of work prior to accident (sedentary, light, medium, heavy or very heavy);
Skilled or unskilled work history;
Transferable skills learned;
Earnings history, with tax returns;
Prior health and medical history;
Prior social and recreational facts;
Events on day of accident, in great detail;
Conversations with adverse party and witnesses on the scene;
Your role and responsibility for the accident or event, to show contributory negligence;
Chronological medical history subsequent to day of accident, with treatment by each physician;
Timetable for acute and chronic stages of your injury;
Prior and subsequent accidents with injuries, if any, of any type (fall down, vehicle, workers compensation, etc.);
Your view of the nature and extent of disability and impairment of each area of the body that was involved;
Activities affected, including activities of daily living and recreational activities;
Temporary restrictions imposed by doctors;
Functional capacity evaluations - permanent restrictions imposed by doctors;
Physical exertion category of post-accident work you are capable of doing with restrictions;
Transferability of skills from work done prior to injury;
Time lost from work, with specific dates;
Work history after accident;
Earnings history after accident,
with tax returns;
How injuries have affected ability to do basic work activities;
How injuries have affected earning capacity;
Future loss of earning capacity;
Bills incurred; and
Future treatment expected.
You should take another look at your medical records. You should have copies already. You should also take another look at any statement or answers to interrogatories you may have given.
A typical defense attorney trick is to ask what hurt on a particular doctor visit, such as at the emergency room, and how you would rate the pain on a scale of 1 - 10. Counsel will have the chart on the table. If you say at the deposition that your injury was killing you, and was a 9, but the records say you rated it a 4 on the date of the accident, counsel will know you are exaggerating and will have some grounds for impeachment or to call you a liar at trial.
Go over all these points with your attorney well in advance of the deposition so you are prepared for what lies ahead.
These are the type of questions which we ask when we depose a defendant. Your deposition will have a very different focus. In your deposition the other attorney will ask you far more questions about your actions after the accident, your injuries, any previous accidents, and practically your whole life.
These pages are from an actual deposition. Please take a look at it and see if you believe this person. This is a person who wasnt prepared. The value of this persons case went way down. If it had gone to trial, this person would have made a terrible witness and would have been impeached on the stand. Dont let this happen to you.
A. I cant remember
Q. Okay. Do you know what the results of your MRI with Dr. X were?
A. No, I dont
Q. Do you know whether or not they were normal?
A. I cant remember
Q. Were you ever told by anybody that you had a small disk herniation that was seen on the MRI after the car accident?
A. I cant recall who read the films to me. I cant recall anything from that accident
Q. Okay. Somebody read the films to you at some point?
Q. At some point did you become aware that you had a small disk herniation in your back?
Q. Do you know when that was?
Q. Do you know whether or not it was before or after this accident?
A. It was before the slip and fall.
Q. Okay. So, it was -- was it sometime after the car accident but before the slip and fall?
Q. Okay. Did you treat with anybody else besides Dr. X and Dr. Y and the physical therapist following the car accident?
A. Just an IME doctor
Q. Who was that?
A. God, I cant remember. I just was told by letter form from the insurance company to go to that appointment.
Q. Which insurance company?
A. Z Insurance Company
Q. And where was this doctor1s office located?
A. I want to say Woburn.
Q. Do you remember what road?
A. God, no
Q. And youre not positive that it was Woburn?
A. Im not 100 percent, no
Q. Do you know what the results of the IME were?
A. I cant remember exactly what he said.
Q. Do you remember generally what he said?
A. I dont remember what he said.
Q. You dont remember generally what he said?
A. No. Ive been to so many doctors this past year, I cant remember which one is which.
Q. Did you treat with anybody else as a result of the injuries youre claiming you sustained in the car accident?
A. I didnt see anybody else, no.
Q. Did you go to a chiropractor?
A. I went to a chiropractor
Q. After the car accident but before the slip and fall?
Q. Who referred you to the chiropractor?
A. Dr. X referred me to a chiropractor, but not this particular one. He was in my area under my insurance. He -- I dont recall who he referred me to, but it was a long distance drive for me. He told me I could find somebody in my area.
Q. So, Dr. Y recommended that you seek chiropractic treatment?
A. Right. He said try it
Q. And you chose your chiropractor?
A. Not my chiropractor. One in my area, my town that I live in that I never saw before.
Q. It was your own chiropractor?
Q. And who was that?
A. Dr. Z.
Q. How do you spell his last name?
Q. Where is his office?
A. Main Street
Q. What town?
Q. How did you chose him?
A. Yellow Pages.
Q. Did you go and see him?
Q Did he examine you?
Q Do you know what the results of his examination were?
A. Neck -- neck -- I dont know the terminology he used. I cant remember. It was a lot of medical terminology. My shoulder, middle of my back, and my leg.
Q. Which leg?
Q. What was wrong with it?
A. Just weak.
Q. Can you describe that for me.
Q. Did it hurt?
A. Weak on -- how his examination wrote, I dont know what he did. Stand on two toes. I dont know. He just said it was weak, that my right side was weak.
Q. Did it hurt, your right leg?
A. Hurt, pain, I dont recall. I cant -- at that time I cannot recall in his office what my leg was doing. I cannot recall.
Q. Okay. What did he say about your neck?
Q. How about shoulder?
A. Again, it was medical terminology. I cannot recall.
Q. What about your mid-back?
A. I cant recall.
Q. Did you treat with Dr. W.
A. Did I treat with him?
Q. How often?
A. Three times a week.
Q. For how long?
A. I cant recall how long I went.
Q. Was it months?
A. I know it was months.
Q. Was it more or less than six months? And Im talking about the time between the car accident and slip and fall right now.
A. I dont exactly know how long.
Q. And you cant tell me whether it was more or less than six months?
A. I cant. I dont know how many months. I know it was more than a month, two. I just dont know. I dont know how many
Q. So, you can say it was more than two months?
Q. Other than that, you dont know?
A. I dont know
Q. Was it less than a year?
A. Yes, it was less than a year.
Q. So, it was more than two months but less than one year?
Q. Did what did his treatment consist of?
A. Massage therapy, ultrasound, and whatever he -- I dont know, manipulate. I dont know how you put a term on that
A. I don1t know if thats what you call it. Im not sure.
Q. Was he manipulating your spine?
A. Adjustment I guess is what you can call it
Q. Okay. What part of your body was he adjusting?
A. My neck
Q. Was he adjusting your back at all?
A. Upper back. He didnt touch my lower back.
Q. Was he doing anything to treat your -- as you described it -- weak right leg?
A. Adjustments and ultrasound and massage therapy.
Q. Okay. On what part of your body?
A. The whole right side
Q. Okay. So, what was he doing specifically for your right leg? Same thing?
Q. Im sorry?
Q. He massaged your right leg?
A. He didnt do it. therapist that I went --
Q. Who was that?
A. At the time I -- I dont recall her name.
Q. Was she in his office?
Q. Okay. So, she was at the -- is his office called the XYZ Chiropractic Center?
Q. Was she a licensed therapist?
A. I would assume so.
Q. You dont know?
A. I never asked for her certificate or asked her if she was licensed. I just assumed she worked there and she was.
Q. Okay. You didnt see any license on the wall with her name on it or anything like that?
A. There could have been, but I never never noticed
Q. Okay. You dont know her name, even her first name?
A. Oh, God, I cant remember her first name. I cant recall.
Q. How often did you see her?
A. It changed. I dont know. he told me -- I never had appointments. Its just when to see him he told me what he doing. I never had appointments see her or him
Q. Did you see her at least once during the time that you were doing chiropractic treatment with Dr. U?
A. I believe so.
Q. When you would get massage therapy, was that in addition to Dr. Us treatment or would you just do that for the day?
A. Sometimes both and sometimes just massage therapy.
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