How to make a good impression in your deposition

Your deposition is the oral testimony you give before your trial. The defense attorney will ask questions and you will answer while a court reporter or tape recorder (or sometimes both) records your testimony. Deposition testimony is generally taken under oath, and the court reporter and the deponent often sign affidavits attesting to the accuracy of the subsequent printed transcript.

One of the main purposes of a deposition is to allow the defense counsel to size up the plaintiff before trial. Defense counsel wants to know what kind of witness the plaintiff will be, how he or she will appear, how credible he or she will be, and how attractive he or she will be to the jury. If you are unprepared, evasive, or not worthy of credibility, you have just reduced the value of your case substantially. With proper preparation you can avoid many of the common mistakes plaintiffs make during their depositions.

By following the below instructions, you can maximize damages in your case and avoid being eaten alive by defense counsel:

  1. Read your answers to interrogatories at least two or three times before your deposition to make certain that your answers are consistent in both proceedings.
  2. Dress appropriately for the deposition because the defense attorney will be judging your conduct, appearance, and demeanor as a witness. Dress and prepare as if you were going for a job interview and take this opportunity to rehearse as though you were appearing in court.
  3. At the deposition, speak clearly, answer the questions audibly, do not chew gum, lose your temper, or be discourteous to the opposing counsel.
  4. Answer each question truthfully and accurately. Even if you believe your answer may work against you, do not lie because even a minor lie or untruth can come back to haunt you and destroy your chances in your case.
  5. If you do not recall an event or other fact accurately, be sure to indicate that your memory may be weak on such detail.
  6. If you do not understand a question, ask that it be repeated or the wording changed. Do not answer a question that you do not understand.
  7. You may be asked questions that you believe are not relevant or appropriate. It is your attorney’s job to object if, in fact, such questions are inappropriate. It is not your place to object or argue with defense counsel. If your attorney does not instruct you to refrain from answering the question, answer the question as best you can even if it involves information that you do not really want to disclose.
  8. Do not exaggerate, under any circumstances, either the facts of the case or your injuries. Any exaggeration about your injuries or pain will be used against you. If there are times that you have felt better, do not hesitate to say that such times have existed. In short, be absolutely truthful about the nature of your injuries.
  9. Answer the question as it has been asked. Do not try to go into elaborate details unless they are asked for.
  10. Do not interrupt the defense attorney while he or she is asking you a question. Even if you know how he or she is going to finish the question, wait for him or her to do so and think about your answer before you start talking.
  11. Be aware of certain questions that may be asked by the defense attorney in which the defense attorney makes certain suppositions and assumptions of fact before the question. If the defense attorney makes a statement or assertion in his or her question that is not accurate, be certain to clarify such assumption. In other words, do not be led down a path that is not really accurate.
  12. Listen for questions that are asked in the alternative such as “Were the weather conditions dry or wet?” It is possible that the conditions may have been somewhat in between. Or “Were the lighting conditions dark or light?” If the answer is somewhere in between, then be certain to clarify.
  13. There are times when the defense attorney will try to repeat your answer by paraphrasing or summarizing your answer, but the defense attorney will change some aspect of that answer. Listen very carefully to any paraphrasing or repetition of your answer and if it is not accurate, do not hesitate to state that the defense attorney has not accurately rephrased your answer.
  14. You will likely be asked a number of questions on distance, time, speed, measurements, lighting conditions, etc. There are very few people who can accurately estimate such measurements. Therefore, never ever guess on a time, speed, distance, or measurement. Such a guess could destroy your case. For example, the defense attorney may ask how long it was between the time you first saw the defendant and the time in which the collision occurred. If you were to answer, for example, ten seconds, this may lead to the conclusion that you had ample opportunity to avoid the collision. The best answer to give to such questions is to state that you have no idea as to the actual time, distance, etc. and answer the question in general terms such as “I can’t say exactly how long it was but it was very, very short.” The same applies to distance and measurement.
  15. You may be asked whether or not any written or oral statements were given about this incident and if so, it is appropriate to tell the defense attorney who received or recorded your statement.
  16. You will most likely be asked to sketch a diagram of the scene of the collision or incident. It is recommended that you prepare such a diagram before the deposition and let your attorney look at it. You should also make it very clear in your answer on the record that your diagram is being drawn to the best of your memory and recollection and that you are not an expert on details, distances, or measurements.
  17. If you are asked whether or not you have talked to anybody about your case, do not be alarmed by such a question. You may answer truthfully by saying that you have discussed your case with your attorney, your family, friends, and possibly business associates.
  18. Do not look to your attorney for assistance in answering the question unless it relates to some detail concerning the litigation. You are only required to answer a question to the best of your ability and if you are not certain about dates, times, etc., simply answer the question as best you can. If your attorney thinks it is appropriate to interject, he or she will do so and assist you but this will not occur very often.
  19. Do not be surprised if your attorney does not ask you any questions. It is not your attorney’s deposition and usually any questions your attorney may ask could hurt your case more than help. Your attorney may decide to clarify certain answers, but in most cases your attorney usually does not ask any questions of his or her own client at the deposition.
  20. You will be asked about any prior injuries that you may have had. Describe any previous injuries and if you do not believe that you have had any prior injuries, state that to the best of your knowledge.
  21. It is important that you have a good recollection of your actual injuries. You should think carefully about such injuries, how they have progressed, the pain you have experienced, and the limitations on your activities. It may be wise to write some of these details down before the deposition and to let your attorney review your list before you testify. However, you cannot use such a list or writing during your deposition.
  22. Prepare a list of all the doctors and other medical personnel who have treated you for your injuries. It is wise to put such a list in chronological order so you can have some organization to your testimony.
  23. You will be asked to testify about your loss of income as a result of the incident. Do not exaggerate under any circumstances. Your attorney will discuss with you that aspect of your testimony before the deposition.
  24. Be aware that there are several purposes of your deposition. First, the defense attorney wants to see what kind of a witness you will be. If you impress the defense attorney that you are a likeable and honest person, the chances of settling your case become greater. Second, the defense attorney may try to force you into inconsistent statements or testimony regarding your case. For that reason, it is important to be honest, truthful and as accurate as possible. Last, the defense attorney will try to elicit as much information as possible so that his file will contain the necessary information for preparation at trial. It is important not to hide anything and to be truthful.