Unless you are running a large business or come from a family of trial lawyers, chances are that you don’t know a lot about the legal system or the intricacies of filing an injury claim. One of the most confusing and fearful parts of the case is when the opposing party says it wants to depose you. What does that mean and what do you have to do?
Many people misunderstand what the deposition process is and what it means. Some lay people refer to it as “giving a deposition” and answer “I don’t know” or “I don’t remember” when asked if they’ve ever had their deposition taken before. Trust me, if you’ve been through a deposition, you will remember it.
Some people confuse a “deposition” with a “declaration.” A “declaration” is a statement, like an affidavit, that is written down and signed under penalty of perjury. The phrase “giving an affidavit” or a declaration or statement is accurate. A deposition, on the other hand, is where you appear in front of the opposing attorney and answer a series of questions under oath before a court reporter. The correct term is “having your deposition taken” or “being deposed.”
One thing that many clients ask me is “will you be at my deposition?” Of course! Due process under the Constitution entitles you to have your own attorney present at your deposition. The court rules also permit your attorney to object to improper questions. Once you hire a lawyer, the opposing party, its lawyers, and its insurance companies can never – never ever – speak to you without your attorney present. It will never happen. So, rest assured, your attorney WILL be at your deposition, sitting right next to you, keeping an eye on you and your case.
Another question I’m often asked is “why do they want my deposition … isn’t there some way to avoid this?” The short answer is usually “no, this happens in nearly every case.” There are many reasons why the opposing side wants or needs to take your deposition. First, it is their only chance to meet you, size you up, and ask you questions before trial. Second, they need to find out what information you know and hear your version of events. They also need to know how badly you were injured. Third, meeting you and getting the answers to your questions allows them to report back to the insurance company and give their evaluation of the case. Fourth, opposing parties often work with expert witnesses who give opinions about the cause or extent of your injury or some other relevant matter. Often, those expert witnesses need specific information from you in order to give their opinions. Fifth, it gives the opposing attorney a chance to see what kind of witness you will be and whether they can rattle you at trial or upset you. Sometimes, they want you to drop your claim and believe that being mean to you at a deposition will cause you to go away. Sixth, they sometimes want to see how well you are getting along with your attorney. Are you following your attorney’s advice? Do the two of you get along? Are you listening to your attorney? All of these things help them better gauge their risk and determine whether to settle your case or go to trial.
What should you be prepared for at your deposition? The attorney will probably ask you some background questions about your education, your work experience, and your family. They will also ask lots of questions about how you were injured, what you remember, what you saw at the time, whether you talked to the person who injured you, where you were going on the day you were injured and what you did after you were injured. They will ask whether you lost money or spent extra money as a result of being injured. They will ask about the injuries themselves – what do they feel like, how bad are they, are you getting better or worse, how do they affect your life and your activities, etc. Since this is their only chance to question you before trial, you should be prepared for a lot of questions, and some of them will seem irrelevant.
What should you do to prepare for your deposition? You should review any documents you have submitted in your case. If you gave a written or recorded statement, you should look at that. If you answered a series of written questions known as “interrogatories,” you should review those. If you submitted anything else – letters, diaries, documents – you should review those too. Of course, you should also meet with your attorney and make sure that they prepare you thoroughly and answer your questions so that you are fully prepared.
Many people are nervous about how to answer questions at their deposition. They want to know what to say. The most important thing to remember is that you must tell the truth – always. You must do this even if the answer might be unfavorable to you or embarrassing. Before you answer any questions, the court reporter will “swear you in” (just like on tv) and you will be responsible for telling “the truth, the whole truth, and nothing but the truth.” However, you are only responsible for telling what you remember and what you know. You are NOT required to guess, to speculate, or to try to figure things out that you don’t know. If you don’t remember something, your answer should be “I don’t remember.” If you are asked the question you don’t know the answer to, your answer should be “I don’t know.” You should also listen to the question very carefully, make sure you understand it, and answer only the question that was answered. Do not volunteer information or answer your questions in a way that you think will help your case. Just answer the question that was asked. No more, no less.
Your deposition will probably take place in a lawyer’s conference room. There will be one or more attorneys there who are representing the party you are suing. Your attorney will be there, of course, and a court reporter will be there too. The court reporter is not there to act as a referee, but to record each and every thing you say. Seriously. This means if you stare at the ceiling and say “damn, I can’t remember the answer, I sure wish I could remember the answer, but I just can’t,” the court reporter will type that up, even if you are just muttering under your breath. Each and everything you say will be recorded.
Depositions understandably provoke anxiety, but they are usually necessary and mandatory. The key is to tell your attorney everything that is potentially embarrassing or potentially harmful and that may have an impact on your case. Tell your attorney about these things well in advance so that they know them and can protect you and your case. Talk to your attorney about your concerns and fears. Ask them questions and ask them to explain the process. Meet with them and practice answering sample deposition questions. Make sure that you are ready for your deposition so that you can enter that conference room with confidence.
