Well, your case is finally starting to move (see this post to find out why it’s taking so long). Unfortunately, you’ve also had to sue the offending party, either as a necessary measure or to force the insurance company to make a decision.
Part of the litigation process involves your attorney taking and "defending" depositions. Hopefully, your attorney has explained the process, so aside from being a little nervous, you’re adequately prepared. Many attorneys like to sit their clients in a conference room and have them view a "depo prep" video. I prefer to skip this, and discuss the deposition with the individual. I find that my clients have the same questions after watching the movie, therefore it’s a waste of time for you.
What is a deposition?
The deposition is sworn testimony you give under oath, and has the same power and effect as it would if given before a judge and jury. Attorneys take depositions in the pre-trial litigation phase of the lawsuit to gather information about the circumstances surrounding the case. The deposition gives your attorney, and an opposing attorney, an opportunity to get the facts and information necessary to determine liability, damages, and the potential value of your claim.
Where is the deposition going to happen, and who will be there?
Depositions usually happen at your attorney’s office, or at a court reporter’s office. The parties attending the deposition are you, your attorney, the opposing attorney(s), and the court reporter. Law student or legal interns for the attorneys’ offices may also attend, but they won’t say anything to you during the deposition.
What types of questions will I be asked?
Depositions are generally very "open" in the types of materials and information they allow. Procedural rules regarding evidence get relaxed for the deposition, so the opposing attorney can ask anything, and everything about your past history and current life. Most times though, the attorney sticks to the general issues of the case to save time and money. Again though, anything is fair game.
I have a criminal history, will I be asked about that?
Yes. Anything about your past and current self is fair game during the deposition. If you have some "sketchy" incidents in your past, it’s important that your attorney knows about those well-before the time of the deposition. I’ve seen too many good cases tank because a client withheld important information. This time, you’re to spill your guts to your attorney so he/she can adequately research the incident and prepare to object when appropriate.
How should I answer the questions?
I have a series of general rules I give to my clients when we’re preparing for their depositions. I can sum the rules up this way:
- Don’t Lie;
- Don’t Embellish;
- Don’t Say More Than Necessary.
Unfortunately, it’s human behavior to do (or want to do) one of the three during your deposition. One tactic that the opposing attorney will use is the "silent treatment." I don’t really know that it has a name, but it’s my favorite.
The tactic is this: The opposing attorney asks you a question related to the incident or about your life. The attorney then waits patiently while you give your answer. When you finish, the attorney sits silently for a second or two. Maybe he/she looks at the notes, other documents, etc; maybe he/she just looks at you. Then, because we all feel the need to fill the silence, you talk, and talk, and talk, trying to "explain" or re-explain your answer. This is where the juicy stuff comes.
Don’t be afraid of the silence. When you say more than is necessary, you’re inviting the opposing attorney to catch you lying, embellishing, or misstating the facts. This is what the attorney wants to see, and this is where you’ll hurt your case.
For the same reason above, you should always tell the truth. The other side wants to use the deposition against you to help their case. If you’re lying, you’re going to get caught, and you’re going to lose. Don’t ever lie!
Uh…don’t. You’re not going to "win" the deposition, so don’t try.
One final tip: if you’re sick, CANCEL the deposition. First, nobody wants your swine flu…er, H1N1 virus. Second, you’re not going to perform your best when you’re well, so don’t even try when you’re sick.
Can I attend the deposition without an attorney? A special insert for "pro se" litigants:
Yes, but why? You’re going up against another attorney. That’s like a 5 year-old trying to hit 90 mile-per-hour fastball (it is World Series time, afterall). The attorney is good at what he/she does, and likely has taken a few on behalf of clients. You, because you’re reading this and downloading my tips, probably have a less-than-stellar record of 0 (no, unlike Zack Grienke’s ERA in baseball, a 0 is not good). Don’t gamble with the success of your case. If you haven’t hired an attorney, contact our firm.
What happens after the deposition?
Hopefully, your story and accounting of the events will cause the other side to settle. In all likelihood, you’re just going to have to keep waiting to settle your claim. Chances are, your deposition happened in the early stages of the pre-trial phase, and therefore, both sides still need to gather more information. Believe me though, your attorney is working hard to get this case settled for as much, or as little (depending on your side), as he/she can. Let them "work their magic."
I hope some of these tips will help you in your next deposition. Remember the 3 keys, and relax! You’re going to do fine. If you need some other recommendations, or you haven’t hired an attorney to represent you, please consider our firm. Absolute Legal Services, LLC, has experience in handling all types of personal injury claims. Most importantly, we’re going to work on your behalf to get you the compensation you deserve. If you’d like a free consultation regarding your potential claim, call us at (405) 748-0318 or email us at: contact@absolutelawfirm.com.
