Preparing for your deposition in a mental and emotional injury case

If you are the plaintiff seeking damages for mental and emotional injuries, the defense will most likely take your deposition. In the deposition, you will be testifying under oath, answering questions posed by the defense lawyer. Your testimony will be recorded by a stenographer and might also be recorded by a videographer.

In mental and emotional injury lawsuits, depositions can make or break the plaintiff’s case. Pictures or radiographic evidence of your injury do not tell a very compelling or revealing story of the deep and “hidden” nature of your mental and emotional damages. As a result, depositions are the core of formal discovery in mental and emotional injury cases.

Importance of plaintiff’s deposition

A plaintiff’s deposition is important in any case. However, if you are the plaintiff in a mental and emotional injury case, your deposition can take on monumental importance because of a combination of several factors:

Most of the people who will be assessing your credibility (from insurance adjustors to defense attorneys to defense-hired doctors) may be cynical about the credibility of your injury.
The existence of your psychological injury cannot always be proven by hard evidence like a x-rays.
Particularly if your case involves abuse, harassment or discrimination, your credibility will be called into question on every single issue in the case, including liability, causation and damages.
Because of the broad nature of discovery in a mental and emotional injury case, defense counsel is almost always armed with a seemingly endless number of records and documents to test and impeach your credibility at or after your deposition.
Your endurance is tested because depositions of plaintiffs in mental and emotional injury cases can extend over many days.
Your ability to handle pressure is tested. The defense attorney is allowed to cross-examine you on highly private and emotionally charged subject matters (examples: traumatic events from your childhood; your relationship with any person who abused or harassed you).
In abuse, harassment and discrimination cases, you will be called upon to revisit details of the abuse by the perpetrator defendant, and perhaps by any other people who have abused you.
Your courage is tested in discrimination, harassment and abuse cases, as the perpetrator of the abuse may be sitting in the same room as you during the deposition.
You will be called upon to describe the nature of a mental and emotional injury, which can be very difficult for a nonprofessional to articulate.
Your testimony will have to demonstrate to the defense attorney the merits of your case on a number of key issues including (1) that the subject trauma occurred in the manner in which you claim it occurred, (2) that you were psychologically overwhelmed by the subject trauma and not able to quickly recover, (3) that you are worse off after, as opposed to before, the subject trauma, (4) that your ongoing psychological distress is significant and “real,” and (5) that your post trauma psychological distress was caused by the subject trauma as opposed to a pre-existing condition or other stressor in your life.

Proper preparation and help from a knowledgeable mental injury lawyer is invaluable to having a successful deposition, and emerging from it with your credibility intact and with the defense attorney convinced of the significance and reality of your trauma-related symptoms.

An experienced mental injury trial lawyer can help you get ready for your deposition

If you are like most plaintiffs in mental and emotional injury cases, you will be worried about your deposition. If you have no idea what to expect, you may fear the worst, which will in turn increase your stress. But if you have hired a knowledgeable and experienced psychological injury trial lawyer, your lawyer will help you prepare for the deposition.

Extent of preparation

Because so much will be at stake in your deposition in your lawsuit for psychological injury damages, the preparation is tremendously significant. The length and intensity of the deposition preparation session will vary from cases to case, depending on the circumstances. In some cases, your attorney may ask you to watch a video that will help you understand the deposition process. Regardless of the complexity of the case, your emotional injury trial attorney should cover certain essential points when preparing you for your deposition. Your attorney should:

Advise you of what to expect.
Advise you of the questions the defense lawyer will probably be asking you, and the reasons why the defense lawyer will ask the questions.
Emphasize the importance of telling the truth. Being truthful during your deposition is imperative. No matter how skillful your attorney and psychological experts may be, they cannot overcome deposition testimony that lacks credibility.
Stress the manner in which your deposition can be used against your at the time of trial.

Basic descriptions and instructions

In preparing for your deposition, your mental injury lawyer will describe the standard procedures and guidelines that apply to depositions in all cases. For example, your lawyer may explain to you:

I will be with you at your deposition. The defense lawyer will ask you questions but I will be present protecting you.
You will probably be asked whether you are aware of any reason why you cannot give your best testimony.
The deposition will probably cover all of the key issues in the case, including details about what happened, how it happened, who is responsible, and your injuries and damages.
If there is more than one defendant, you may be questioned by multiple attorneys.

Your mental injury lawyer will also give you some standard deposition “guidelines” for testifying. For example:

You will be under oath and the same penalties of perjury apply as in a court of law.
You should only answer questions which you both hear and understand.
If I instruct you not to answer a question, you should not answer that question.
You should not speculate when answering questions. If you don’t know the answer to a question, just say that you don’t know.
If you lack sufficient memory to accurately answer, you can simply answer “I don’t remember.”
You can take breaks whenever you want to during the deposition.
The deposition will be printed up into a transcript and you will have an opportunity to make corrections to answers, but corrections can be commented upon if the case goes to trial or arbitration.
I or another attorney may make objections for the record. But then after the objection is made, unless I instruct you not to answer, you still must answer the question.

Practical reminders for any deposition witness:

You should be well rested and be well fed before the deposition.
It is critically important that you tell the truth and answer questions accurately rather than casually.

What you wear and how you appear

As the plaintiff in a lawsuit seeking damages for a mental health injury, you might be wondering “What should I wear at my deposition?” Unfortunately, there is not one easy answer. Like many aspects of plaintiff’s deposition, the outfit is unlikely to significantly “help” the case. But it can significantly hurt the case. For example, a low-cut dress on a woman plaintiff in a sexual harassment case would be a grossly inappropriate outfit.

If you are claiming severe emotional distress and loss of enjoyment of life, it is important that defense counsel see you as you appear in your daily life. If, for instance, you no longer wear make-up or “dress up” when you go out in public, it might be a mistake for you to suddenly “dress up” or wear a lot of make-up at your deposition.

It is important for you to be “real” at your deposition and be as comfortable as possible. You can dress nicely, if that is what you usually do. Many men who are plaintiffs want to dress “business casual.” Similarly, a woman plaintiff will often choose to dress in a professional and businesslike manner at her deposition (particularly in a sexual harassment case in which the defense asserts that the reason for termination was the plaintiff’s incompetence or lack of professionalism). In general, business attire is usually fine for your deposition. But you should not select an outfit that you never wear because it might make you uncomfortable. Your outfit must be one that you will be comfortable wearing for several hours.