After your attorney files a personal injury complaint, discovery commences. This means that both sides may serve on each other interrogatories, which are questions, and requests to produce, which seeks documents. Thereafter, depositions of the person or company who caused your injury are scheduled by your attorney. The attorney representing the negligent party will set your deposition as well. Depositions typically take place within 2-4 months after filing of your filing the personal injury complaint. This depends on the complexity of the case. Depositions are usually taken at court reporter’s offices or the offices of the attorney. They may also be taken by telephone or using services such as Zoom.
In the context of a personal injury deposition of a plaintiff, the deposition is set by the attorney representing the defendant. The attorney is typically paid for by the insurance company and known as an insurance defense attorney. This insurance defense attorney almost always handles defense cases only. They oftentimes have an outline to follow because they must write a detailed report to the insurance company after the deposition.
The insurance defense attorney will not only obtain testimony from you regarding the details of the incident that caused your injury(ies), but also evaluate how you will appear before a jury at your trial. Will the jurors have empathy for you? Will you be likable and will the jury find you credible? The insurance defense attorney is evaluating everything about you. Trust me, I did this for years. These reports are used to determine the settlement value of cases. So, it is important to make a good impression. Below are some tips to follow:
Before your deposition, make sure to meet with your lawyer in person to prepare for your deposition. Before your deposition, read your answers to interrogatories and review the documents that were produced to the other side. If you have questions for your attorney, write them down so you remember to discuss the issues. These meetings are important not only to help ease any stress you may have before your deposition, but also to put your case in the best light before the insurance company attorney. It is important that you testify with confidence, clarity and conviction. Your lawyer will help you with this at your meeting prior to your deposition.
Remember, the insurance company attorney will comment in his report to the insurance company that you were rude, etc. and would not make a good impression to the jury.
How you appear at your deposition, including your body language, demeanor, eye contact, reactions to questions and also dress are important to your case. For men, dress conservatively. Wear a button-down, long-sleeved shirt and tie. You do not need to wear a suit, unless that is typically what you wear to work. If you are a woman, also dress conservatively. Wear slacks, blouse or a dress and closed-toe shoes. Leave at home any large jewelry, watches, etc.
Answer only what was asked of you.
Try to answer just the question asked of you. Don’t volunteer additional information. If the insurance defense lawyer asks you where you were heading at the time of the automobile crash, an answer should be “to work” or “to school” or “to pick up my kids from daycare” or “I can’t recall at this time”, if you cannot recall. You should not go into what you typically do during mornings, where you “think” you were going, or who you met that morning, etc. The more information you volunteer, the longer your deposition will be.
If I was taking your deposition and you added information that you met Julie that morning. I will be asking you many questions. Who is Julie? What is her full name? Where does she live? What is her phone number? How long have your known her? What is her relationship to you? What does she know about the crash? Did you talk to her about the crash? Did you email her or text her about the crash? What does Julie do for a living? Where does she work? Where did you meet her the morning of the crash? What time did you meet Julie before the crash? I would then probably set Julie’s deposition at a later date.
It is very important to stick to the facts and be honest. If you do not know the answer to a question, just say so. A response of I cannot recall at this time is perfectly fine. Your deposition is not a memory test.
If you do not understand a question, say so.
You should never answer a question that you do not fully understand. Make the insurance defense lawyer do his job and ask a question that you understand and can answer.
Avoid using terms like “never” or “always.”
We use these words very often in the English language. In a deposition, such words are too definite and may damage your case later on at trial. For instance, if you are asked if you ever experienced back discomfort in your life and you answer “never” and the insurance defense lawyer finds a FaceBook post or an email or a doctor visit 15 years ago when you said you had some back pain, that will be used against you. Be careful of using words such as never or always.
Don’t let the insurance defense lawyer put words in your mouth.
For instance, they may ask you, “Don’t you agree, that while you were speeding, you failed to stop for the stop sign?” In this instance, if you know you were not speeding, you need to say that you were not speeding.
If you need to take a break, do it.
Don’t try to tough it out. Many injured persons with back injuries try to tough it out during a deposition by not taking a break to stretch, etc. and sit there answering questions in pain. Depositions may last for many hours. I have been involved in depositions that lasted days. You may take a break any time you want, just ask for one. If the opposing attorney refuses, your lawyer will step in and force a break at the appropriate time. I have done this for clients. I have also done this for clients when I can tell they are in pain sitting for an extended period of time.
You may also stand up and answer questions. If you have a back injury and have advised that sitting for long periods of time is uncomfortable, the insurance defense lawyer will 100% of the time report that you sat for an hour or two with no problem to the insurance company, when in reality, you were in pain during that questioning, but did not say anything.
Review your deposition with your Personal Injury Lawyer.
At the end of your deposition, in Florida, you will be given the opportunity to read or waive reading your deposition. Always ask to read it because you will be given an opportunity to correct mistakes on an errata sheet that will be attached to the back of your deposition transcript.
The trial attorneys with the help of the firm’s paralegals at Van Riper and Nies Attorneys have successfully represented injured clients in Broward, Palm Beach, Martin County and St. Lucie counties. This article is not a substitute for legal advice. For more information about our Personal Injury and Motor Vehicle Accident Practice groups call 800-650-1243.