During your deposition in a mental and emotional injuries case

Higher standard of truth at deposition than in real life

Every mental and emotional injury case is a “credibility contest” in which much of the proof is dependent upon the truth of the plaintiff’s testimony. Although the typical plaintiff is unlikely to outright lie at a deposition, we all tend to “spin” facts in a way that makes us look as good as possible. However, depositions are different than “real life.” There is a higher standard of truth and accuracy at depositions. If your deposition statements omit critical facts or slightly exaggerate facts and events, those statements can lead to the loss of your credibility and your case.

Unlike conversations you may have in real life, your deposition testimony will be put under a microscope and tested against information provided by others, including other lay witnesses and expert witnesses, information provided by you during mental examinations, and information in school, work, medical and therapy records that run across your entire lifetime. Therefore, “casual” answers must be avoided.

For example, in normal daily life, when somebody asks you, ‘How do you feel?’ you are likely to reply, simply, ‘Okay.’ However, the complete truth is that you are likely to feel a lot of different things, and one of them is not ‘Okay.’ In a deposition, you must avoid the casual or simplified answer and instead give complete and accurate answers.

You cannot win the case at deposition, but you can lose it

To maintain credibility, you should not answer questions in a way that makes you appear to be an “advocate” for your own case. One of the reasons why people hate lawyers is because they believe that a lawyer will do anything to win a case, at the expense of what is right or wrong or what is true or false. As the plaintiff, the worst thing that you can do is to appear or act lawyer-like. But you will appear lawyer-like if you attempt to answer questions in a way that always makes you look good and makes defendant and anybody who disagrees with you look bad. At your deposition, it is your job to simply state the facts and not attempt to “spin” your answers.

This generally means that you should honestly concede points that are truthful but negative to your case. You cannot “win” your case at a deposition even if you try. Depositions cannot be won since nobody present at a deposition is capable of awarding plaintiff a verdict.

On the other hand, your case can be lost at deposition if you give false testimony. If you are caught in lies or inconsistencies, it will doom your case. If you are not truthful, even on a small issue, it can cause you to lose the entire case.

Maintaining likability

Emotional distress damages can be very subjective. Jurors possess normal human sensitivities. As the plaintiff, if you appear hostile and unlikeable, then you will come across as less “deserving” to be awarded money to compensate for your losses. Thus, you must try to remain likeable during your deposition. This does not mean that you should become best friends with the defense lawyer, but it does mean that you should remain appropriately friendly and courteous with the defense lawyer. You should also be kind and polite to the court reporter. If defendant is present at the deposition, you should attempt to be as polite as possible under the circumstances.

You may or may not get to tell your whole story

In some cases the defense lawyer does not ask you about all the facts. You should not attempt to provide information that has not been requested. Simply answer the questions that are asked, even if you are not able to tell your whole story. During deposition, you must limit your answers to the defense lawyer’s questions. Your day to tell your whole story will come during trial.

In other cases you will be given the opportunity during your deposition to tell your version of facts and events. The defense lawyer will probably want to hear testimony that is both good and bad for the defendant’s case.

You may not be given free rein to tell your story in the exact sequence that you prefer. It is likely that defense counsel will not ask questions in chronological order and will ask about “pieces of events” rather than your start-to-finish version. Although this process may be frustrating, you must honor it or you will end up fighting with defense counsel and losing credibility.

Be willing to express sadness

Because your case is about mental and emotional injuries, it is okay to express honest emotions at your deposition. Many plaintiffs, particularly in abuse and harassment cases, believe that they will be doing poorly at their deposition if they “break down” and cry.

This could not be further from the truth in terms of showing the defense lawyer the reality of your psychological pain. If you have been severely traumatized and have become depressed as a result of that trauma, it is expected that you will act depressed and, if appropriate, cry at the deposition.

Emotionally, you can let down your guard and become vulnerable at the deposition. If you describe a series of symptoms associated with depression, but do not show any of those symptoms at the deposition, your testimony may appear to lack credibility.

It is okay to honestly show sadness or tears at appropriate times in your deposition. After all, there is a sadness to what has happened to you. It may be very painful for you to let down your guard and appear vulnerable, and it may be traumatic to “relive” the trauma. But your deposition is a time in which it is critical for you to relive the trauma. As appropriate you must answer questions from the sad and painful zone that you experienced during the trauma and have experienced during bleak moments since the subject trauma.

If you can testify from the heart rather than just the mind, it is more likely that the defense lawyer will be impressed with the reality of your psychological pain. If the defense lawyer realizes that your mental and emotional injuries are real, the case will be more likely to settle for a reasonable value, thus you will avoid having to be even more traumatized by a public trial.

The problem with anger

People are universally turned off by a display of anger, particularly anger directed at them. This includes jurors and defense attorneys.

In your mental and emotional injury case, you are likely to be angry at the defendant. You may also be angry at the unfairness of your situation. This includes the “unfairness” of having to go through a deposition and experience another re-traumatization.

There is a continuum of how much the expression of anger can harm your case. If you merely describe anger at the cruelness of your fate, it may not be ideal testimony, but it is not particularly harmful. If you express anger at defendant, it may give the defense attorney a bad impression of you, and some jurors may also be turned off by your anger.

The worst display of anger is anger directed at the defense attorney, particularly if the defense attorney is only doing his or her job and does not “deserve” your anger. If you display anger against the defense attorney during your deposition, the defense attorney will likely conclude that you are an “unattractive” witness who would turn-off jurors at trial. And this conclusion would probably be accurate, because an angry person will appear unappealing and unworthy of a verdict.

In sum, you should not display any anger during your deposition. You may have every right to be angry since you have been injured and your life has been significantly disrupted through no fault of your own. However, an angry plaintiff  will not gain the sympathy of either the defense lawyer or the jurors. Because anger is always a turn-off, it does not evoke feelings of wanting to help the plaintiff.

Avoid technically correct but misleading answers

You must avoid giving answers that are technically correct but misleading. Technically “clever” answers will cause you to lose credibility. For instance, suppose that at your deposition the defense attorney asks, “Before the incident with the defendant, had you ever been in therapy?” You may think to yourself, I have seen a “counselor.” However, I did not consider that “therapy,” therefore I will answer the question “no.” While your answer to the question may be technically accurate, it is a distortion of the truth. If later during the lawsuit the judge or the jurors believe that you were deceiving the defense attorney through your answer, you will lose credibility and your case will be harmed.

Avoid speculating about what other people think

A deposition is about facts, not speculations. Do not to speculate as to the answer to a question. In particular, you should not attempt to read the minds of other people, even though the defense attorney may ask you  to.

The issue of mind reading will come up any time that the defense lawyer asks you why somebody other than you said or did or came to the conclusion about anything. Without more information, you cannot and should not attempt to ascribe a motive or basis to the acts, statements or conclusions of another.

Examples

Questions that call for mind reading that may come up in mental and emotional injury cases include:

• “Why did defendant make a left-hand turn in front of you?”
• “Why do you believe the witness testified that you were going 50 miles an hour?”
• “Why did defendant tell you that he loved you?”
• “Why did your employer not like you?”
• “Why did Dr. X tell you that you needed more therapy?”

In other situations, you may have information as to why someone did, stated or came to the conclusion about something. You then have an obligation to answer a question of why someone acted in a certain way. However, the answer should not be a definitive statement, but must be prefaced by phrases such as:

• “Defendant told me that he loved me because….”
• “My employer said that he disliked me because….”
• “Mr. A told me that defendant said that….”
• “The doctor told me that….”

It is also possible that you may have seen something that would indicate why someone said, did or came to the conclusion about something. You can always testify as to what you actually saw. For instance, you may testify:

• “I saw defendant looking at his passenger instead of straight ahead when he made a left-hand turn in front of me.”
• “When defendant told me he loved me, he wrote the five reasons for his love for me on a piece of paper he later crumpled up and threw away.”
• “I saw a memo that my employer sent to his friend at the company saying that he didn’t like me because….”

If you hear or see information indicating the thought process of another, you can testify to that subject matter as long as you carefully answer that your knowledge is based upon what you heard or saw. The same principle would apply for anything that you smelled or touched. For example, you could testify:

• “I think that the defendant was high when he told me that he loved me, because, when I walked into his office, I smelled marijuana.”
• “I believe that defendant was very nervous when he met with me, because I could feel his hands were clammy and wet.”

Give away what you have to give away

At your deposition, you will be under oath to tell the truth, just like when testifying at trial. In answering questions, you sometimes must “give away what you need to give away” in terms of unfavorable information, rather than appearing to be attempting to manipulate the defense lawyer or a jury.

It is natural before your deposition to fear that you will be “cornered” by the defense lawyer and forced to give testimony that will harm your own case. This fear is valid. The defense lawyer probably will be able to “force” you into giving some testimony that harms your case. That is okay. Virtually every case involves some unfavorable information on both sides. Moreover, you must provide forthright and truthful answers to the defense lawyer’s questions. More harm is done by you losing credibility – if you attempt to “duck” an answer or give an untruthful answer – than the harm that is done by simply admitting the bad fact.

Every mental and emotional injuries case has bad facts and every plaintiff has done or said something that they would rather not admit to at deposition. Admission of one bad fact or even a few bad or embarrassing facts will not destroy your case. Jurors will usually look at the big picture, and a few bad or embarrassing facts will not determine the outcome of the case. On the other hand, if you are untruthful while attempting to avoid potentially embarrassing or harmful answers, your entire credibility can be destroyed and that can cause you to lose the case.