You have just been notified that you’ll be questioned about an accident you were involved in by an attorney in a personal injury deposition. You’re probably anxious and wondering what a deposition actually is, and wondering what exactly you can expect from the process?
First of all, take a deep breath. A good personal injury lawyer will help guide and protect you, and telling the truth will serve you. On the other hand, if you’ve decided to “go it alone” and represent yourself in a personal injury case, the deposition could be the moment where you realize you are in over your head. If you’re facing the prospect of a personal injury deposition and you haven’t hired a personal injury attorney yet, now might be the time to ask whether you really want to go up against the defense’s legal team without anyone on your side. A good deposition may ultimately keep you out of court and lead to a settlement of your case. If you haven’t already, contact Mario Palermo immediately for a free consultation.
In a personal injury lawsuit, a deposition is an information gathering session. As part of the discovery phase, it offers the other party’s attorney the opportunity to ask questions about the facts and details of your case, and to get a clearer picture of the circumstances surrounding the accident. A thorough and effective deposition is crucial to the success of your case, so it is important that you come prepared. This preparation will help relieve your anxiety and ensure a smooth process.
What to Expect
You will be given (in advance) a specific date, time, and place where a deposition will take place. Generally, depositions take place in an attorney’s office. Your attorney, the other party’s attorney, and a stenographer (court reporter) are all allowed to be present.
The deponent (you) is the person giving the deposition. You will be under oath while you are being deposed (questioned), and truthful answers are required of you to the best of your ability. The court reporter will be recording everything that is being said and anything that happens during the deposition. It is important to note that everything you say during your deposition testimony can be used in court later if your case doesn’t settle before going to trial.
Typically a deposition takes place after a lawsuit is filed, but before a trial begins. This phase of your case is called the “discovery” phase. If you’re the plaintiff in the lawsuit, the defendant’s attorney will send you a notice of your deposition. This is a type of legal request, and the defense does not need to get a subpoena or court order to request your deposition. This notice is enough.
Once you have received this notice of deposition, you are required to participate. Depositions are critical to the discovery process and you will have to answer the other attorney’s questions if you want your case to move forward. A date and time that is good for all involved will be agreed upon and set in the calendar.
Why Is a Personal Injury Deposition So Important?
Your deposition is usually your first opportunity to give testimony that is on-the-record and to share your side of the story of what happened in the accident. A deposition allows for a written record of a witness’ testimony that can be used later to impeach testimony in trial. Many times this happens if, for example, the testimony of a witness during trial is different from what is said at the deposition. Other witnesses to the car accident can also be subpoenaed to give a deposition, although their deposition will be separate from yours.
Your deposition provides not only an opportunity to establish the facts and circumstances of your case in your own words but also an opportunity for the attorneys from both sides to evaluate strengths and weaknesses in the case and get an idea of how you would testify should the case move forward to trial.
What Happens at a Deposition?
Courtroom dramas on television may have you expecting your deposition will be more like a dramatic inquisition, with the opposing attorney accusing you of lying while pounding on the table shouting questions at you.
In real life, civil lawsuit depositions rarely look anything like this. You can expect that the deposing attorney will be polite, and professional, and probably even a little friendly. Their goal is to get you to open up and reveal as much information as possible, not shut you down out of fear or frustration. Usually, the deposition will take place in a conference room, not a courtroom.
Depositions generally follow a certain flow. Usually, the attorney for the other side (the opposing counsel) will ask you several types of questions, and your answers will get recorded in a deposition transcript. Although your attorney will not be able to help you with your answers during a deposition, you can work with your attorney to anticipate and prepare for the defense attorney’s deposition questions. Those questions, which are called interrogatories, will generally fall into one of the following categories:
General Personal Information
This can include questions about things like your name, your background, your contact information, the makeup of your family, what you do for a living, etc.
Prior Physical Condition
During a personal injury deposition, the other party’s attorney will want to know your medical records and what your health was like prior to your injury. For example, if you hurt your right arm, the attorney might ask if you are right- or left-handed, or if you had prior injuries to your wrist, shoulder, or back that might have contributed to your accident or the resulting injuries.
This part of the deposition can become especially important if your injury involves cognitive symptoms, as many brain injuries do. If you suffered a concussion or other brain injury, your injury isn’t necessarily visible to the naked eye, so it’s important to paint a very clear picture of what your health was like before the accident. Regardless of the type of injury you’ve suffered, though, the way you answer these questions will establish what your life and health were like before the accident and create a point of comparison for your after-injury state.
The defense attorney will want you to record how the accident happened in your words and in as much detail as possible. You can be expected to answer questions like: How did the accident occur? What was the weather like outside? What was your initial reaction to it? Who was there to witness it? What was your mental state? Did you speak with anyone during or immediately after the accident? What was said during those conversations?
To get ready for these questions, your lawyer should help you thoroughly prepare this part of your testimony. If you don’t practice, it can be very easy to get turned around during the course of your story and lose your train of thought or to omit important details. Remember, you are under oath during your deposition, so be sure to give accurate answers about what you remember, and be honest if there are things you don’t remember clearly.
You will need to give a detailed account of your injuries. How were you injured? Where did you seek medical treatment? Did your primary care physician treat you or an emergency room doctor? Were you admitted into the hospital? Did you have surgery? What was your follow-up care like? Did you follow the doctor’s advice? Do you have ongoing care such as physical or occupational therapy? The details of your injury are very important, as they will support your later answers about how the injury has affected your physical, mental, emotional, and financial well-being
Life After the Accident
This is your opportunity to testify about how your life has been affected by the accident. You will be able to paint a picture of how your life today differs from the lifestyle you previously enjoyed and the future you had planned, including any limitations you’ve experienced, costs you’ve incurred, and emotional pain you’ve suffered as a result of your accident.
Throughout the pre-deposition preparation and the deposition itself, your attorney will be your most important partner and advisor. Besides preparing you for the defense lawyer’s questions, counseling you about how to frame your answers, and providing a supportive presence during your deposition, your lawyer can also come to your defense and object if the defense attorney’s questions or conduct are out of line in some way.
The entire deposition process falls under a set of legal rules called the Federal Rules of Civil Procedure. Your attorney should know these rules well enough to make sure the other side follows them and to speak up in case of a violation.
How to Conduct Yourself During A Deposition
A personal injury deposition can cause you to become self-conscious and overthink everything you do. When you know a lawyer is going to depose you and record your testimony, every word choice, gesture, and action suddenly seems very significant. The stress can cause injured victims to feel like they don’t know how to act or what to say.
To help take the pressure off, here are a few basic tips for how to conduct yourself during a deposition.
Be polite and professional
Arrive to the deposition well-dressed, well-groomed and on time, and avoid trying to make small talk or jokes to “break the ice.” When the defense attorney begins to ask you questions, provide clear, concise, and straightforward answers as best you can, and remember to ask them to clarify if there is some aspect of the question that you don’t understand.
Just stick to the facts
The format of your deposition will be question-and-answer, and it is the defense attorney’s responsibility to bring out your testimony through questions. Don’t try to anticipate what information they may want to know or provide extra detail they haven’t asked about. Instead, simply answer the question you’ve been asked in a clear and straightforward manner and then wait for the next question. Everything you say will be recorded, so be sure to speak clearly and loud enough so your words will be recorded accurately.
Take it slow, don’t rush
This is an important part of your case, so you will want to take your time responding with the most thoughtful, truthful answers possible. Let the attorney finish his or her question before you start to answer. You can even take a moment to collect your thoughts before giving your answer. This also creates the opportunity for your attorney to object if needed. Make an effort to remain calm, even if the other party’s attorney tries to ask you confusing or unclear questions in order to trip you up. Remaining “even-keeled” is very important throughout the process.
You’re under oath, so you need to answer the defense lawyer’s questions honestly; failing to do so could have serious consequences. Part of being honest, though, is telling the truth about what you’re not sure of. “I don’t recall” or “I am unsure” or “I don’t know” are perfectly good answers for questions you don’t have an answer to. You don’t want to be caught making a false statement, even if it’s unintentional, as this could seriously harm your case.
Preparation is extremely important for a deposition. Work with your attorney to prepare for the deposition and take this preparation time seriously. You may want to ask your attorney to role-play a deposition with you so you can practice giving calm, factual answers that are free of opinion or emotional appeal. This is very important to practice since you’ll be speaking about a subject that may bring up intense emotions and memories.
Again, if you’re facing the prospect of a personal injury deposition and you haven’t hired a personal injury lawyer yet, now might be the time to reconsider.
At Palermo Law Group, we understand the stress, anger, and confusion that often accompany a senseless injury. That’s why we value cultivating a strong attorney-client relationship. If you or a loved one are injured due to someone else’s negligence, we can help. When you choose our law firm to represent you, we’ll act as your advocate and use our years of personal injury experience and our extensive knowledge of the local courts to fight relentlessly on your behalf.
When to Contact an Accident and Injury Lawyer
Mario Palermo, of Palermo Law Group, has been practicing Personal Injury Law for over 20 years. He is recognized as being in the top 1% of litigators in the nation and has dedicated his career to recovering full and fair compensation for injury victims and their families. To learn more please call us at (630) 684-2332 or request a free legal consultation.