This post is an excerpt from the blog of Idaho attorney Kurt Holzer of the firm Holzer Edwards. It offers some great advice of what to do, and what not to do, during your deposition. We spend a lot of time with our clients before their depositions making sure they are prepared, and these tips are just a few of the things we usually cover. These seven valuable guidelines are reprinted with the permission of Mr. Holzer:
“1. Tell The Truth:
This means, of course, don’t lie but it means a lot more too.
No matter how good, or bad, your case is in the abstract, a lying plaintiff simply starts the funeral march towards an unfavorable result at trial. As discussed here most cases don’t go to trial but one way to increase the odds of your case be one that does go to trial is doing a bad job at your deposition.
Talk about specifics ahead of time with your lawyer
All cases have “uncomfortable testimony,” be it on facts of the incident, or something to do with the claimed damages or on the personal issues the other lawyer asks about. These are often areas where the specifics of your case need to be worked through with your lawyer ahead of the deposition. You want to be sure the testimony comes out smoothly, honestly and is placed in the appropriate context.
If you guess at an answer you simply cannot be telling the truth in response to the question. To ensure the “whole truth” don’t guess or add information you don’t know or weren’t asked about.
This is the essential difference between depositions and normal conversations among ordinary people. In normal conversations we naturally fill in holes in the story with certain assumptions and guesses. It is not lying, it normal. In deposition, it can be deadly to your case.
Be sure you heard and understood the question
Lawyers are remarkably capable of asking questions which make absolutely no sense whatsoever. Whether unclear, vague, ambiguous, compound or what have you, all lawyers who take depositions have done it and we will all do it again. If you don’t understand a question: Don’t Answer It. You can always ask for a question to be repeated or clarified.
“Always” avoid absolutes
The use of absolutes to answer a question such as “always” and “never” will almost always cause problems. For example, any question designed to get you to make absolute statements like “I’ve never in my life suffered a headache before this crash,” is almost always a trap. It is painful to recall how many time I’ve heard a clients have been lulled into making such a sweeping comment.
Often the clients real point (i.e. the truth”) is, “other than normal aches and pains”, I’ve never had a problem. For example:
“If you are asking if I ever had a neck pain before this accident, I’m sure like everyone, I’ve had a stiff neck. But I’ve not gotten any treatment before that I remember.”
This answer protects you from defense counsel digging up a record 10 years ago when you suffered the flu, had aches and pains including in your neck, and suddenly the testimony comment about NEVER suffering any neck pain, looks deceptive.
You cannot forget a primary reason of nearly every deposition for the bad guy’s attorney is to make you look like you are lying. Absolute comments are almost always a problem.
Leave the door open
One standard defense lawyer tactics is to try to get you to make a mistake by asking a question in absolute terms, i.e., “Tell me everything,” “That’s all the problems you’ve had?”, etc. Be prepared to answer with the truth, which is usually, “That’s all I remember right now,” or “I’m sure there’s more, but that’s all I recall at this time.”
It is the rare client who can remember everything while having his deposition taken. What the lawyer wants to do is “box in” the plaintiff and limit your ability to tell the jury the whole truth.
Be comfortable with the technical truth.
Only lawyers can make telling the truth so hard….. But, seriously, don’t uncomfortable with the truth even when it is “I don’t know” or “I just don’t remember right now.” Often the truth of your memory is, “I am not 100% sure but I think ….”
2. Answer The Question
The Golden Rule of a deposition, no matter who you are or the subject matter of your lawsuit is answer the question. Again though, there is more to it.
Answer the Question, the Whole Question, and Nothing But the Question
It is important to set aside some of the social norms that govern behavior during your deposition. That does not mean be rude, it means be careful.
The goal of the deposition is not to tell your whole story. It is just to answer the bad guy’s lawyer’s questions. You have to listen carefully to the question and then answer only that question. The basic rule is DO NOT VOLUNTEER ANYTHING.
If a question can be answered “yes,” “no,” or “I don’t know,” fairly and truthfully, then answer the question that way. And then shut up.
If the defense lawyer wants more information, she can ask more questions. People have a natural tendency to fill in and anticipate questions. Acting that way in a deposition will only lead to problems and a longer deposition
This does not mean to make every answer into one word answers. Sometimes answering the question requires a sentence or even a couple of sentences. Answer the question you have been asked – and then shut up. Seriously, shut up what you say is being recorded in black and white, don’t make jokes, don’t engage in banter, don’t try to answer the next question, just sit quietly. .
Rules have exceptions, one area that is often an exception to this rule of Don’t Volunteer is in discussing damages. I have often had clients who have a hard time articulating all the impacts on their life of the injuries they have incurred at the hands of the defendant. It is important to spend time with your lawyer identifying concrete examples of the impact the injuries have had on your life. The defendant may make an inaccurate evaluation of the case if you are not able to fully explain those impacts.
3. Respond Consistently
You will likely have been asked to provide written answer to questions prior to your deposition. Your responses to deposition questions need to be consistent with the answers in written discovery AND consistent with what you told the police for their report or the doctor who was treating you.
For example, describe your injuries to the same parts of your body as you described them when you saw the doctor. A deposition is an unfortunate time to talk about a knee injury that no doctor noted you had.
The bad guy’s lawyer loves it when your deposition answers are inconsistent with how your past recitation of the events is reported. At trial, that lawyer will suggest to the jury that every inconsistency in your story is actually a lie. And they do this because it works.
4. Numbers Are Bad
This is a subset of don’t guess or assume. Human beings don’t do numbers very well. Time, distance, speed, amount there is nothing that client’s get wrong more often and get made to look like liars because of than things related to numbers.
How far away was the other car when you first saw it? How long did you wait at the light? How far did your car lunge forward? How much distance was left between their bumper and yours? How long were you unconscious for?
Even though you might feel like you SHOULD know. The reality is you probably don’t. SO-DON’T GUESS at anything. If you find yourself ready to pop off with your best estimate, instead simply tell him “I would have to guess and I not comfortable with that.” That is your answer and the attorney will have to move on.
5. Its Not A Fight
Your job is to answer questions. Your job is not to confront the lawyer or to be combative or argumentative. Usually we don’t have these problems in Idaho depositions but If arguing has to occur, let your attorney do it. That’s why you hired him or her. Just be patient, responsive, and candid. Your role is to answer questions until there are no more questions to answer.
6. Your Deposition IS NOT the Time to Tell Your Story
If the lawyer asks you a question, answer it. If the lawyer never asks about something, don’t worry about it. Your lawyer will help you tell your story at the appropriate time. Your job at the deposition is just to answer the questions.
Sometimes a lawyer will pretend that they have some confusion about the case and need clarification. It’s an act. They do that in the hopes that you will drop your guard in an effort to help them understand and you will just start talking. Getting you comfortable with talking is the first step to you saying something stupid that they can use against you.
Never forget, the defense lawyer is not confused, and is not your friend.
7. You Can’t win Your Case In A Deposition:
Some clients convince themselves that despite what I tell them if they are extra accommodating to the defense attorney or use the exact right word during their deposition that the defense attorney will get the insurance company to pull out its checkbook write a fair settlement check. I have never seen it happen.
A deposition is a place where if you are not careful you can lose your case, but you cannot really win it there. If you hunker down, follow the basic rules and your lawyer’s advice and don’t let down your guard until the deposition is over, then you will have the best outcome you can expect.”
Before you go into your deposition, make sure you’ve had adequate preparation time with your lawyer, that you know what to expect, and that all of your questions and concerns have been answered, and remember tip number one: always tell the truth.
If you need an attorney, we’re here to help. Give us a call. We’d love to hear from you.