Using Depositions
I mentioned that depositions are used to “lock in” your testimony. This is because when you get to trial, if a witness says something different in his or her trial testimony than what was said at their deposition, the other personal injury attorney can use the previous deposition testimony to “impeach” the witness. This means that the other personal injury attorney can use the discrepancy in the deposition testimony compared to the witness’s trial testimony to try to make it look like the witness either lied during the testimony on one of the occasions or else is confused or has a bad memory (and therefore his or her testimony cannot be trusted).
Let me give you a sample dialogue of how impeachment might go to trial:
Attorney: Please tell the jury, Ms. Smith, what color car the defendant was driving when he supposedly ran the red light and hit your vehicle.
Plaintiff: It was blue.
Attorney: Are you sure?
Plaintiff: Yes.
Attorney: Do you remember giving testimony at a deposition about eight months ago in your personal injury attorney’s office?
Plaintiff: Yes.
Attorney: And during that deposition I asked you questions and you swore an oath to give truthful answers, is that correct?
Plaintiff: Yes.
Attorney: I have here a copy of the transcript from that deposition. On page 57 I asked you what color car the defendant was driving when he supposedly ran the red light and hit your vehicle, could you please read the answer that you gave during that deposition (handing Plaintiff the document).
Plaintiff: (reading from transcript) Silver.
Attorney: Thank you. I have no further questions.
Thus, in this example the personal injury attorney hopes that the jury will consider Ms. Smith’s testimony unreliable because she testified under oath at her deposition that the car was silver and at trial that the car was blue. The injury lawyer will usually end the questioning or change the subject abruptly after pointing out the discrepancy so as not to give the witness a chance to explain the discrepancy.
If you (or any witnesses in your favor) have been impeached, your personal injury attorney will have the opportunity to “rehabilitate” you, which means to provide an explanation for an apparent discrepancy. Perhaps it was dark outside and the color of the car was hard to make out, as opposed to the color of the traffic light (red). Perhaps the car was blue with significant silver trim so in one answer you focused on the body and in the other focused on the trim.
Your personal injury attorney will do whatever can be done to make it look like your testimony is reliable by explaining the discrepancies. Perhaps the explanation is so simple that it can even make the other personal injury attorney look dumb for making an issue of it. Depositions are also sometimes used when a witness is unavailable for trial. A witness is unavailable for trial if they are deceased, missing or live outside of the jurisdiction of the court such that it is difficult or impossible to force them to come to testify each state defines “unavailable” differently.
If the witness is unavailable, the rules often allow the deposition transcript to be read to the jury or, if the deposition was videotaped, to play the video for the jury. The deposition will either be read to the jury verbatim or in some cases the personal injury attorney might have someone sit in the witness box and act out the deposition. The personal injury attorney will ask the questions and the person playing the part of the deponent will read the answer from the transcript.
Deposition Tips
Under no circumstances should you use the tips I am about to give regarding depositions that are different from the advice that your injury lawyer gives you. I am simply outlining what I tell my clients in order to prepare them for a deposition. This may give you some points to discuss with your personal injury attorney while preparing for your deposition. So, what do I tell my clients in preparation for their deposition? First, I tell them some practical tips to keep in mind. Then, I give them my sermon of three main things not to do: do not lie, do not guess and do not ramble.
First, there are some practical things to keep in mind at a deposition. In order to keep the court reporter happy, do not interrupt or talk over the other injury lawyer. The court reporter is making a record of every word said. Therefore, it makes his or, often, her job much easier if you let the injury lawyer questioning you completely finish each question before beginning to answer.
There is a natural tendency to go ahead and give someone an answer once you know the question. However, this is not good in a deposition because if the injury lawyer does not ask the entire question before the answer is given, either the court reporter has to scramble to keep up or else there will be a gap in the deposition where half a question is asked before the answer is given. That might look like the following:
Lawyer: Mr. Witness, what time did . . .
Witness: It happened at about 5 p.m.
Here, the injury lawyer was trying to ask what time the accident occurred and the witness knew that before the entire question was asked. However, as you can see, by not allowing the injury lawyer to finish the question, the transcript is incomplete.
There is another perhaps more important reason not to interrupt. Good injury lawyers use the deposition process to test the personalities of the plaintiff or key witnesses. If you interrupt a lot, the other side’s injury lawyer may ask complicated questions designed to exploit your impatience. He (or she) may also use your impatience against you later, during the trial.
So do not be in a hurry. Try to relax and make sure that you do not talk over the other injury lawyer.
In addition, it is important to give verbal answers. In other words, answer questions with “yes” and “no” instead of with “uh-huh” or “huh-uh” or shaking your head. It makes the court reporter’s job more difficult to try to interpret and make a transcript of head shaking and it is often difficult to differentiate between “uh-huh” or “huh-uh.” There are many instances when you do not want your positive or negative answer interpreted as the opposite. For example: If you are asked whether you ran the red light, you want to make sure that the court reporter gets an unmistakable answer of “no.”
The next advice that I give my clients is to not lie. Moral issues aside, if there is some negative aspect of your case, it is much better to be truthful about it than to lie about it and get caught in the lie. I tell my clients that we can usually find ways to deal with negative aspects of a case, but if the defendant’s injury lawyer can show the jury that you lied about something, the jury might not trust you about anything. Remember, defense injury lawyers and adjusters are well trained. They do depositions nearly every day and usually have done for years. If there is a way to catch you in a lie, they will probably find it, so its better just to tell the truth.
Not only should you not lie, but you also should not guess, because guessing wrong can make you look like a liar.
It is human nature to want to please others when they are asking you questions. It is natural to want to know the answer and be able to give it to them even if you are not entirely sure or do not definitely remember. For example, someone might ask you the date that you first visited a neurosurgeon. You think that you recall that it was July 25th of the prior year, but you are not certain. If you answer “July 25th of last year” it will appear in the transcript that you were certain about this date. If it turns out that it was August 8th, then it appears that the things you seem to be certain about may not be correct, thus possibly making you appear to be unreliable in all of your testimony. Perhaps the jury then wonders whether you remember the color of the traffic light at the time of the accident. Thus, if you do not remember something or you simply do not know the answer, say “I do not remember” or “I do not know.”
If you think you know the answer or you remember something approximately, qualify your answer. Thus, when asked when you first saw a neurosurgeon, if you are not certain, instead of saying “July 25th of last year” say “I cannot remember for certain, but I think it was around July 25th of last year.” By qualifying answers that you are not sure about, you never give a wrong answer; and you create the impression that when you are sure, you say so and when you are not sure, you say you are not sure. Thus, when you say you are sure the light was green, your memory is less likely to be questioned by the jury. Finally, I tell my clients to not ramble. By this I mean that it is important to answer the question that is asked fully and truthfully, but do not go beyond the question asked. “Make the other injury lawyer do their work” is what I often say.
Do not give the other injury lawyers more than what they ask for. If you have a prior left knee injury and a injury lawyer asks you if you have ever had a right knee injury, the correct answer is “no.” That is the complete and total answer, not a word more. The correct answer is not “no, I have never had a right knee injury, but I sure did hurt my left knee one time.” On the other hand, if the injury lawyer asks if you ever had a prior knee injury, without designating which one, then you must truthfully answer that you had a prior left knee injury.
Take your time! Assuming the deposition is not being videotaped, if you take a little time to think about a question, that time will not likely even be distinguishable in the transcript. Your answer goes on the line after the question whether you answer in 10 seconds or two minutes. (Of course after a certain amount of time you run the risk of interjections by the injury lawyer such as “do you need more time?” or “did you understand the question?”)
Take the time to process the question and give a complete answer. There is one caveat to the advice not to ramble. If the injury lawyer asks you a question that is a trick question where answering the question without explanation would make you look bad then go ahead and explain. Make the other side work to get any information that is harmful to your case.
On the other hand, do not appear difficult or arrogant. This will not only look bad in the transcript but the other side might think you will look bad in front of a jury and this could reduce the amount they offer in settlement. Be polite and have a cooperative demeanor, but make them do their work.
In addition, try to keep your answers concise. Stick to the subject matter of the question asked. If they want to lead you off on a tangent, they can ask you questions to do that. If, while at the deposition, you realize that you gave an incorrect or incomplete answer, tell your injury lawyer then.