I have been a Florida trial attorney since 2001. I started out representing insurance companies and defendants in injury cases, including Fortune 500 companies. Over the years, I have taken countless depositions in my career in both personal injury and civil litigation cases. Below are my top 11 tips to follow before and during your deposition.
1. Prepare for your deposition with your lawyer.
It is important that you that you take time to prepare for your deposition. If your lawyer did not set a face-to-face meeting to prepare for your deposition, call your lawyer and set a time to do at least a week before your deposition. Don’t do it by telephone. Cases are often won or lost in depositions and since the majority of cases settle before trial, this will be your day to tell your story. How well you do in your deposition oftentimes has a real impact on the settlement value of your case. For years I was an insurance defense attorney and would take many depositions every week. If I found the person being deposed to be likable, this would be reported to the insurance company. Same for finding a witness well-prepared. How well defendants do in depositions is a strong indicator of how they will appear during trial. So, insist that your lawyer prepare you well for your deposition.
2. Do not guess.
If you do not know the answer to a question, it is perfectly fine to say that you do not know, or remember, at that time. So many times, people are asked in depositions what they were doing on a particular date, many years in the past. It is normal not to remember. I do not remember what I was doing on dates years in the past. For instance, I know the time my son was born many years ago, but I don’t know what I was doing that morning beforehand with any detail. I don’t know where I ate. I don’t know what I did before going to the hospital. Neither will you. So, do not guess. If you don’t know or don’t remember, say so. If you are asked about specific dates, times, speeds or other specific questions, don’t guess at the answer.
3. Dress appropriately and make a good impression.
Since the lawyer taking your deposition is evaluating your credibility, sincerity and likeability, make a favorable impression. Wear comfortable slacks and a button-down shirt or a dress. Do not wear a t-shirt or shorts. Do not chew gum. Do not appear angry or hostile, especially to the lawyer asking you questions. If you find yourself getting annoyed at the questions, which you probably will, ask to take a break, go outside and take a breather. Lawyers are experts at sounding intimidating or angry in the verbal questions, but do not appear so when reading the transcript. You will not know how to do the same. Every word that comes out of your mouth is transcribed, including angry words. Therefore, think about a judge reading every word you say at some point. Picture a juror reading or hearing every word you say. It is fine to get emotional during your testimony. One of the goals is to have the attorney taking your deposition to leave with an impression of you being sincere.
4. Listen carefully to the question and understand it before you answer it.
Sometimes attorneys ask questions in depositions that you don’t understand. It is the job of the lawyer to ask questions that are easy to understand and respond to. Before you can answer a question honestly, you must completely understand it. Do not be afraid to ask the attorney to rephrase or repeat the question. It is normal to do so. I have never been offended or upset if a deponent asked me to rephrase a question. You do not want an answer recorded by a court reporter where you did not completely understand what was asked of you.
5. Answer all questions verbally.
Your testimony will be transcribed by a court reporter typically using a small keyboard type device while sitting next to you. This can be done accurately only if you wait for the question to be finished before you start to answer. It is typical in everyday conversations to start to answer questions before the question if completed. This needs to be avoided during your deposition. I tell clients to wait at least 4-5 seconds after each question before answering. Further, your responses must be verbal, so no nodding or shaking of your head, no uh-huhs as responses.
6. Take Breaks.
Some depositions go for an hour, others for days. It is mentally tiring to sit in a room answering sometimes stressful questions for hours. Lawyers are used to it. Non-lawyers are not. It is not if you will become mentally drained, but when. Imagine arguing or talking about stressful situations for hours. I suggest taking breaks every 30 – 45 minutes. Walking outside and taking a break for 5-10 minutes will be very beneficial to you. Ask your lawyer and the lawyer asking questions that you need a break. I have never in all my years denied such requests.
7. Take your time and review carefully any documents you are asked about before answering.
Documents are often used in depositions and attached as exhibits. Documents include photos, medical records, income records, emails, text messages, maps, prior statements, discovery responses and more. If you are asked to answer questions about a particular document, ask to read it and take all the time you need to review the document before answering questions about it. If it takes 5, 10, 15 minutes to read the document that is fine.
8. Make corrections.
If later in the Deposition testimony, you think that you made a mistake in your testimony, make the correction before the deposition ends. Also, at the end of the deposition if you are asked if you want to read or waive reading your deposition transcript, always say that you want to read it. You will then have an opportunity in a week or two to review the transcript to make sure it is correct. If any changes need to be made, you may do so on a errata sheet.
9. Be careful about giving absolute answers unless you are absolutely sure, and avoid using words like never, always, etc.
Defense attorneys try to catch you in contradictions by asking you about prior statements, injuries, etc. These attorneys are trained to ask you if you have been injured in prior incidents or have had medical care for the same injury. Be careful about giving absolute responses unless you are 100% sure you are correct. For instance, if asked if you have every injured your back before, make sure that is the case if you answer no. Insurance companies will get all the medical records they can and if you saw a chiropractor 15 years ago for some pain, they will get those records and paint you out to be a liar at trial if you said you never had treatment for your back A better answer would be “not that I can recall” rather than “I have never injured my back” or “I have never had any treatment related to my back”.
10. Be truthful.
Insurance companies and defense lawyers oftentimes know the answer to questions before asking. It is a near certainty that the lawyer asking you questions, have done a background check on you or reviewed your Instagram, FaceBook and Twitter accounts. Oftentimes these lawyers are trying to purposefully catch you in a lie to use against you in court. You are under an oath taken at the beginning of your deposition to tell the truth just like you would be in court before a judge.
11. Don’t talk too much.
Answer the question asked as precisely as possible and don’t testify about other areas that are not responsive to the particular question. If you are asked what is the color of an orange? Your answer should be “orange” and that is it. Don’t elaborate about oranges, fruits, whether you like oranges, etc. The less you elaborate, the quicker your deposition will be.
The trial attorneys at Van Riper and Nies Attorneys, a Veteran-owned law firm, have successfully represented Florida residents and businesses in civil litigation cases in Broward, Palm Beach, Martin County and St. Lucie counties. This article is not a substitute for legal advice. For more information about our Civil Litigation practice call 800-650-1243 and speak with our attorneys or paralegals.