After an accident, it is not unusual for the insurance company for the at fault driver to want to take a recorded statement from you.  Also, in uninsured motorist claims, your own insurance company will want to take a statement under oath from you.  And if you file a lawsuit, at some point, most likely, the lawyer for the “enemy” will want to take your deposition.  What is it?  What  do you need to know?  What should you wear?  Is the Judge there?  How long will it take?

     The most important thing to remember ANYTIME  the insurance company wants to take a statement, or the other lawyer wants to take your deposition, is that whatever you say is going to essentially “bind” you to that version of events for the rest of your case/claim.  In other words, the statement or deposition will lock in your testimony and you can  later say something different at your peril.

     The difference between a “statement” and a “deposition” is several.  A statement can be taken at anytime after an accident, but is usually done before a lawsuit is filed.  Once a lawsuit is filed, the other insurance company can only talk to you indirectly by having their lawyer call your lawyer, who in turns calls you.  So, in that case, the lawyer for the insurance company sends a notice to your lawyer indicating that they want to take your deposition on a certain date and location and time.  Your lawyer will tell you whether you need to appear on that date and should make arrangements with you to meet with you ahead of time to prepare you for the process.  If your lawyer does NOT make arrangements to prepare you for your deposition prior to allowing you to testify, in my opinion, you should really rethink who is representing you.  I don’t know any injury lawyer helping victims that is competent that doesn’t make sure that his/her client is thoroughly prepared to testify prior to attending the deposition.  But, what actually is a deposition and how does it work?

       A deposition is a formal legal proceeding where the insurance company’s lawyer, as well as the lawyers for anybody else that was sued in your case, will get to ask you questions that you will be answering under oath.  Your own lawyer will be there as well.  The Judge, in our practice, is rarely involved in a deposition.  There will be a court reporter present and the person or people you SUED have a right to be present as well.  It is a formal proceeding to the extent that you are put under oath.  It is informal to the extent that most depositions take place in lawyer’s conference rooms in a generally congenial environment.

     The word “deposition” comes from the form of the word “depose”, which essentially means to interrogate. In other words, the deposition is a form of “interrogation.”  The other lawyer will put questions to you that you are required to answer unless your lawyer tells you to not answer it.  Generally, the lawyer can only ask one question at a time, to which you respond.  The questions can come in any order, but the general categories that are usually covered are questions about your background, questions about the accident itself, questions about your injury and your recovery, questions about your time off work, and questions about the effect the injury has had on your life, activities, etc.  Again, the examiner can start anywhere and jump back and forth if they want.  Most younger lawyers start with background, then move to the accident, then to the injuries, etc.  Often times, more experienced lawyers may try to catch you off guard by starting the questioning with your injury, or how the accident happened.  This is why YOUR LAWYER needs to have prepared you ahead of time.   Also, since the court reporter is typing everything down, he/she can only listen to one person at a time.  So before you try to answer any question, let the examiner completely finish it before you start.  This will also give you a chance to reflect on the question and gives your lawyer time to object if need be.  Remember, this is NOT a conversation with the other lawyer!  It is an interrogation, albeit usually a polite one.

      The background questions in a typical injury claim are questions about who you are, where you live and work, your marital status, educational background, work experience, etc.  These are the EASY questions for you.  You know your own life experiences and it should be no problem to answer these types of questions.  The cardinal rule in our depositions, however, is to ONLY answer the question being asked.  If you can answer the question “yes” or “no”, in our experience that is often the best response UNLESS you need to explain something.  So for instance, if the lawyer asks where you live?  A truthful answer to that general question could be to just say “a house” or “an apartment” or whatever town you live in.  That is strictly limiting your answer to the question.  In reality, on background questions, the deposition will generally move a little quicker if on those types of questions, you give for instance your home address to that question. 

     The next type of questions you will get in our little hypothetical are questions about how the accident happened.  Here, you definitely want to make sure your answer is strictly limited to what the question was looking for.  In an auto accident type of case, you will get  many questions about relative speed of the vehicles, the distances between objects, the amount of time it took for things to occur.  These are EXTREMELY IMPORTANT questions about establishing who is at fault and is not the time for flippant responses.  This is probably the area in preparation that your lawyer did or will spend the most time so you have clear ideas in your head about how to testify to those facts.

     Questions about your injury and damages are usually pretty straightforward.  Sometimes it is hard to remember which doctor you saw on what specific day or what your exact complaints were on each of those days.  Generally, depositions are not memory tests about your medical care.  But you must be cautious of questions asking you in minute detail about each of your medical visits.  Defense lawyers often get you to commit to certain statements you think you may have made to your doctor but don’t appear in your medical records.  Later they will take the position that you may be lying or fabricating your injury complaints.  Again, your lawyer should have you prepared for this type of examination.  After all, your own lawyer has ALL of your medical records too and knows full well what the records say about each of your visits.  If your lawyer doesn’t cover this with you in your preparation, ask why not.  On the other hand, if your injury is catastrophic, such as paralysis or amputation, there isn’t usually too much confusion about what was happening at your doctor appointments.

     The last area of examination is generally about how your injuries have affected your life and your damages in terms of medical bills, lost wages, etc.  You may have to provide employer statements or tax returns to support your loss wage claim.   If you are married, the questions here may focus on how the injury has affected your marital life.  Is there a different division of responsibility around the house?  Are you sleeping in separate beds because of pain and discomfort?  Has there been a change in your sexual enjoyment with your partner because of pain?  That area of examination focuses on your loss of consortium.  Be candid.  During the damage portion of your testimony, this is  not the time to hold back.  Particularly in serious injury cases, don’t feel embarrassed to describe the devastating impact it has had on your home life.   On the other hand, if you strained your back and was all better in 6 weeks, it is hard to imagine a significant impact on your home life much beyond that time frame, so don’t try to “overplay” your cards.  We tell our clients to BE HONEST, OPEN and DON”T EXAGGERATE!!

     For some people, the most anxious part of the deposition is trying to figure out what to wear!  The answer is simple.  One of the most important parts of the deposition is for the insurance company’s lawyer to develop what sort of an impression you would make on a jury.  So, if you show up disheveled and unkempt, what impression do you think that makes?  On the other hand, if your job generally has you in blue jeans and a work shirt, you can certainly dress that way, but make sure your pants and shirt are clean.  If you work in that sort of a job, don’t try to create some other impression by wearing a suit and tie.  In other words, dress the way you want people to see you at your casual best.  Be neat.  This seems silly to talk about, but if you make a nice impression on  your own behalf, that is information that is relayed to the other insurance company!!  That is helpful to your case!

     You may also wonder why the judge isn’t present.  In our practice, judges rarely get involved in depositions because if any objections are made to the testimony, etc., the deposition continues on until it is finished and the lawyers raise any issues about the deposition or the testimony at a later time with the judge.  Lawyers are all “officers of the court” and as such are bound to follow ethical and procedural rules of conduct for depositions. 

     How should I act during the deposition?  This goes back to how you should dress.  We always tell our clients to BE POLITE!!  You do not gain anything in trying to make a good impression by getting angry with the other lawyer or arguing with the other lawyer.  Although there are always exceptions to these rules, generally this is the way to proceed.  Remember, if you explode in anger during the deposition, the insurance company lawyer will report that to his insurance client and they will factor your inability to control your emotion with how you will stand up to cross examination in front of the jury. If you lose control during the deposition, can they make you look out of control in front of the jury and hurt your case?? 

     In some types of cases, particularly cases involving severe injury to loved ones or death, the deposition of relatives, spouses, etc. can be very emotional.  Most defense lawyers are aware of how sensitive those situations can be and conduct themselves with a high degree of respect and sensitivity.  In those types of cases, don’t worry if you become emotional and perhaps cry or weep.  Grief can come back at almost anytime, particularly when you have to recount the experience that caused the loss or devastating injury. In those types of cases, no defense lawyer would think it “bad” if the widow cried describing how she found out her husband had been killed.  Or the mother sobbing trying to explain how she is trying to take care of her paralyzed little girl or boy.  Emotion from grief, loss, despair, longing, etc., displayed openly and honestly proves to the defense lawyer the devastating loss you and your family are feeling.  That information is relayed back to the insurance company as well. 

      In terms of how long a deposition can last, that varies depending where you live.  Most states have a time limit that can be about 3 hours to maybe 8 hours, but your lawyer will know how long it can last.  In our area, deposition in state court can’t last more than 3 hours absent some agreement or judicial intervention.  In most auto accidents, it doesn’t take a skilled examiner anywhere near the 3 hours to finish, but be prepared for that in any event.

     Remember, your deposition is a VERY IMPOTANT part of your case.  Be prepared for it, both intellectually with your lawyer, and personally in your own mind in what you know is going to happen, what to wear, how to act, etc. We often tell our clients that we do NOT win our cases in depositions, but we sure can damage our case if our client’s testimony is bad.  Consequently,  if you are anxious about it, make sure you tell your lawyer that and ask them to block out more time to get you ready.   If you are not comfortable the day of the deposition for some reason, make sure you tell you lawyer before you get there.   We communicate regularly with our clients in advance of their depositions and gauge from them their level of anxiousness and judge our preparation time accordingly.  Good luck!!