How to Prepare for Personal Injury Plaintiff Deposition: A Five-Step Process to Handle Any Question
This is what I tell my clients when preparing them for deposition: it is not possible to anticipate every question that could be asked and prepare and answer ahead of time. It's better to learn how to "handle" each question instead. If they follow these five steps, they can handle anything.
STEP ONE: DO I UNDERSTAND THE QUESTION?The rules require that a lawyer must ask questions that the witness can understand. Some lawyers try and confuse the witness with long and complicated questions using unfamiliar words hoping= the witness will accidentally say something that can be used against him.
It’s easy to defend against this tactic: if there is anything confusing about the question just say these magic words: “I DON’T UNDERSTAND.”
Don’t let the lawyer rush you. The rules say that the lawyer can’t ask another question until you answer his last one. That means YOU control the pace. The rules also forbid a lawyer from asking the same question in the same way if the witness says she doesn’t understand. He will have to either re-phrase the question—and keep re-phrasing it until you are satisfied—or move on. That’s a lot of power, so use it.
STEP TWO: DO I KNOW ANYTHING ABOUT THIS?Sometimes my clients think that, because it’s their case, they should know everything. That’s not true. The client is just another witness, like any other, with her pieces of the puzzle, and it’s her lawyer's job to take those puzzle pieces together with pieces from all the other witnesses and evidence and put together the big picture. The client's only job in deposition is to show the defense attorney the puzzle pieces she has—that he asks to see!
In other words, it’s okay if the answer is: “I DON’T KNOW”
If that’s the truth, then anything else would be a lie, a guess, or pure speculation.
A witness can only testify about things within his or her personal knowledge. That means you were there, you saw it, or you heard it, or maybe even just heard about it. If you have some kind of personal experience about whatever it is, then you can testify about that experience.
But beware! Sometimes, if a witness gets scared or nervous, he might start saying “I don’t know” to everything. If you DO know something but you say that you don’t, then that’s a lie. More than anything else, it’s important to be believable. If you don’t have credibility, then you don’t have a case.
STEP THREE: WHAT DO I REMEMBER?Just because you were there and saw or heard whatever it was, doesn’t mean you will remember it however many years later. Just like you’re not expected to know everything, you’re also not expected to remember everything.
In other words, it’s okay if the answer is: “I DON’T REMEMBER.”
Again: if that’s the truth, you shouldn't say anything else! If the lawyer gets pushy, that’s because he wants you to try to guess about the thing you’re forgetting—because if you get it wrong, he might be able to use it against you.
But, again: beware! The last thing you want is to start answering “I don’t remember” to everything. You shouldn’t come across as evasive, so always apologize if you can’t remember something.
Memory is a funny thing. Some things, we can remember for years and years like it just happened yesterday. Other things, we forget about almost as soon as they happen. The general rule is this: we remember exciting or scary things; and we forget about boring things.
For example: if you were in a car crash, you will remember all kinds of little details about that moment, so that even years later you can close your eyes and re-live it. In fact, it might be so traumatic that—try as you might—you are incapable of forgetting it or even putting it out of your mind, much as you’d like to.
But a visit to the doctor’s office is another story. It’s so boring, and we don’t understand half of what the doctor says. When we walk out, we just try and focus on remembering what we’re supposed to do next—and most of that gets written down for us, just in case. In fact, the doctor himself can’t remember it that well, which is why he writes down all those notes. The result is that, when you are asked about the accident, you will probably remember a lot, but when you’re asked about your medical treatment, things will get very fuzzy.
Now, the rules do NOT require you to study up for your deposition, and you shouldn’t, because everything you look at to prepare will have to be given to the defense attorney. The lawyer is only entitled to what we call your “present, unrefreshed recollection.” But when it comes to your medical records, he’s not asking questions to find out the answers. No, because he already has your records. He’s asking because he wants to trap you, by getting you to say something different from what’s in those records. He can do that, because often people don’t remember properly but try to answer anyway.
It’s easy to defend against this tactic as well. All you have to do is refer to the records, saying something along these lines: "I can’t recall everything. It’s been a long time. I would have to look at my records."
Defense attorneys will get very nit-picky about your medical treatment, but if you keep referring them to the records, they will give up and stop bothering you about it.
STEP FOUR: THE K.I.S.S. RULEKEEP
This is where you will spend most of your thinking time before answering a question. Remember, all of this is in your head. NEVER THINK OUT LOUD.
People are natural storytellers. We all love to tell stories, and accidents make for great stories, because they’re scary and dramatic and they don’t happen to us every day. But this is a big problem in deposition. Maybe the defense attorney will say: "You know, there’s two sides to every story. We’re here today to give you a chance to tell YOUR side of the story, and I want to be fair to you and give you that opportunity, so why don’t you go ahead and tell me, in your own words, how the accident happened."
Sounds reasonable, right? But it’s not—it’s a trap. The lawyer is being a wolf in sheep’s clothing. What he's looking for is that whole “story of my accident” which, over the months or even years, you have told and re-told to friends, family, acquaintances and co-workers, with all the embellishments and exaggerations that tend to accumulate with the re-tellings.
Defend against this by answering in the simplest way possible. Think about it: what exactly was the way your accident happened? One example might be something like this:
A: I was rear-ended.
That’s it! Four lousy words is all he gets. A deposition is a numbers game. The more words the lawyer gets out of you, the more likely he will find some words to use against you. Therefore, the less words you say, the harder you make it for him. If the lawyer wants details, he will have to ask for them. It’s not your job to help him. Remember: your job is to show him only the pieces of the puzzle that you have and that he asks to see, nothing more.
Again: you set the pace, so take all the time you need to think before you speak, asking yourself: what is the simplest way I could possibly answer this question?
STEP FIVE: TIME OUT!Remember how I said that, if you follow these five steps, there is no question you can’t handle? That’s because Step Five is the step which is designed to handle the unexpected.
There is always the chance that something unexpected will happen. Some question could come up which you don’t know how to answer. You understand the question, and you know something about it, and you remember that something—but for whatever reason you just can’t think of what to say, or you have some doubt or worry that’s nagging at you.
In that situation, you can take advantage of this rule: you are entitled to take a break, at any time, for any reason, or even for no reason at all, and you don’t have to ask permission, or to explain why you want a break. All you need to do is say the magic words: “I NEED A BREAK”
That’s it! Once you say that, you get up, without saying anything more, and you ignore whatever the defense attorney says. He might try to get you to answer the “pending question” but he CANNOT FORCE YOU. If you get up and walk out, there is nothing he can do to stop you. And the last thing you should do is try to answer a question when you’re having a problem. That’s what the defense lawyer wants, because it increases his chances of having you make a mistake, so don’t do it. If you’re in a jam, pull the escape cord: say “I need a break!” and then get up and walk straight out of the room.
Once you’re alone with your lawyer, everything is confidential attorney-client communication, and you can explain what the problem is. Your lawyer can’t tell you what to say, and you always must tell the truth, but he can help you understand your options and give you legal advice. Once you’re comfortable with how to answer the question, you go back in and pick right up where you left off, answering the “pending question” and moving on.
That’s why I can say that no matter what happens, you will always know what to do— because if you don’t know what else to do, then you still know what to do: you ask for a break.
CONCLUSIONThat’s it for the Five Steps. Before the deposition it's good to go over the case and refresh your memory about the most important facts, but even without that, as long as you follow these five steps for every question, you will do great!