Deposition Best Practices
A deposition is a tool used by litigants after a lawsuit has been filed. It is basically a formal interview of a witness, initiated by one of the parties, to get an understanding as to what the witness will say at trial. Anyone with information regarding a lawsuit can be “deposed” or have their deposition taken. Whether it be the Plaintiff, the Defendant, a percipient witness, a treating physician, or a retained expert, the goal is to gather information and find out what the witness will say at trial.
As discussed, the purpose of a deposition is essentially twofold. First, it is useful in obtaining relevant information to the claims or defenses of the case. The party taking the deposition can really ask any question under the sun to a witness and absent exigent circumstances, the deponent (the individual being deposed) must answer the question.
The second purpose of a deposition is to lock in the testimony of the witness, as to what they will say at the time of trial. In other words, whatever the deponent says at their deposition should match what they say at the time of trial, otherwise, serious problems could arise for the deponent. This is a good Segway into the ground rules that we have developed for our clients to follow during a deposition.
Related: What To Expect In A Deposition
This ground rule goes to the part about locking in your testimony for the time of trial. If you say anything at your deposition that differs from reality or what you are going to say at trial, you are giving the other side a great opportunity to attack your credibility as a witness. In fact, a Nevada Jury Instruction in regards to impeachment reads as follows: “If you believe that any witness today has lied about any fact, you are free to disregard all of their testimony.” This is a huge deal for a plaintiff in a personal injury case. If the jury is free to disregard your testimony, then you have little chance of obtaining a favorable result from the jury at deliberation. In addition, when you provide testimony under oath, you are subject to the penalty of perjury. So you are actually committing a crime if you say something that is not true while testifying at your deposition. With that, we also don’t want you to make guesses about any of the answers. A guess means that you are unsure of the answer but answer anyway. This is never a good idea at a deposition because there is a chance that you are wrong. If your guess ends up being inaccurate, then you run into the same problems you would if you were lying. Bottom line is that you cannot change the facts of your accident. Keeping up with a lie is much more difficult than just being honest.
You’re going to want to keep your answers as narrowly tailored as possible when responding to questions during a deposition. That means that you are not providing any extra information beyond what is being asked. It is seemingly difficult for deponents to not attempt to qualify their answers. But this can be dangerous. Deponents (for the most part) are not experienced attorneys that know the ins and outs of the issues at hand. So you might say something that you think helps your case, which in fact hurts your case. The easiest way to avoid this is to listen to the question being asked, and give an answer that matches the subject of the question and nothing else. If they ask you a yes or no question, just provide a yes or no answer. If they ask you a question about your accident that calls for a one or two-word response, only provide a one or two-word answer. Where it gets tricky is if they ask a question about your accident case that calls for a narrative, make sure that you only answer the subject matter of the question being asked. Don’t go off on a tangent about what you did the week after the accident. Just keep it short, simple, and to the point. Your attorney or lawyer will have an opportunity to ask you questions at the end of your deposition if they need to rehab anything that you may have or may haven’t said.
You may ask, why is being courteous important during my deposition? Well, it is, maybe even more so than the other two rules (well not the first but definitely the second). The reason that this is important is that after your deposition, the defendant’s attorney is going to make a report to the insurance carrier. The most important thing on that report is “how the witness will perform at trial”. If you come off as abrasive, mean, or have other bad qualities (like being a gangbanger), the adjuster is going to know that a jury will not find you in a favorable light and do anything to avoid giving you money at the time of deliberation. I have seen it happen time and time again. A person with a lousy case but a great personality is able to settle the case for top dollar because the adjuster/attorney knows that the jury is going to be eating out of their hand.
Conversely, I have seen a person with a really great case and they are not able to settle their case and/or lose at trial because they come off as nasty, disrespectful, or otherwise as a bad person. It is legal realism at its finest: “people will do good things for people that they like and bad things to people that they do not like. So do yourself a favor, be cool as a cucumber during your deposition. As soon as you lose your cool, you will get into big trouble down the road.
In sum, performing at a deposition boils down to these three ground rules. There are other guidelines to follow for specific cases, which you will want to talk to your attorney about but these ground rules apply in every case without fail. The other guidelines are fact-specific and depend on whether your case was a car accident, slip and fall, medical malpractice, product defect, trip and fall, or premise liability action.