Preparing For The Plaintiff’s Deposition


Your deposition is not your opportunity to tell your story, but instead the defense attorney’s opportunity to obtain what he or she wants, and only what the attorney wants, from you. Counsel will purposely avoid questions you might want him or her to ask which you think would enhance your claim. Counsel does not want to hear anything about any subjects selected by you. Therefore, be as laconic as possible. Answer as many questions as possible with a yes or no answer, and do not give a narrative unless required.

Never volunteer any information that is not specifically addressed in the question. Do not tell the examiner where he or she may find the answer, either. At a deposition you should adopt a defensive posture. This is not your opportunity to tell the whole story. It is not your day in court. That will come later, at the trial, when your own attorney asks you questions on direct examination. All you need to do is respond to the questions asked.

If any question is unclear, or you are not sure of the answer, you have the right to ask for the question to be rephrased or repeated. You should not guess at any answer. You may add to your answer by saying: “To the best of my recollection . . .”, or “At this time . . .” or “I cannot be certain, but . . . .” Leave the door open for clarification later. If you think of a more accurate answer later in the deposition, be sure to advise the examiner that you want to return to a previous question to make your answer more complete. After the deposition, if you realize that you made a mistake, tell your attorney so he or she can supplement your deposition in the manner allowed in your jurisdiction.

Be extremely careful about answering questions designed to elicit exact details of an event, such as times and distances. For example, in motor vehicle accident cases, defense attorneys are trained to pin down the plaintiff on how many seconds elapsed between the time the plaintiff first saw the other car and the moment of impact, and how many feet the vehicles were apart when the other vehicle was first noticed. Defense counsel wants to give the plaintiff’s answers to these questions to an accident reconstruction expert who will testify at trial that on the basis of the time and distance estimates by the plaintiff, the plaintiff was guilty of inattentive driving or lookout, negligent management and control, or some other violation of the rules of the road. If precise quantitative estimates are not given, defense counsel’s plan may be foiled. In other types of cases, questions calling for the plaintiff’s recollection of exact details of any event are similarly dangerous traps. The plaintiff’s memory of the events should be reviewed in advance of the deposition. A chronology of events should be outlined to the extent possible, but speculation or conjecture concerning precise descriptions, accounts, measurements and timelines should be avoided at all cost. It is far safer to testify in qualitative, rather than quantitative terms, such as “a short time,” or “a short distance,” rather than using precise figures. Even approximations can be damaging if not well thought out in advance. There is nothing wrong with simply stating, “I do not recall.

Defense counsel will have two purposes for taking your deposition. The first is to obtain the information you will provide on your own behalf at trial, so that counsel is not surprised by anything and can adequately advise the insurer what you will say. Remember that the vast majority of cases are settled before trial, so it is in your interest to answer accurately and completely all questions to the extent that your answers will aid in the settlement negotiations later. The second purpose is to obtain any information that might be used to impeach you in the event that the case goes to trial. Therefore, you should not say anything inconsistent with what is in the medical records, prior statements, or other utterings. You must assume that competent defense counsel has or will obtain before trial your complete criminal arrest and conviction record, credit record, accident claims record, history of motor vehicle accidents, history of worker’s compensation claims, medical history, hospital record, life, disability and health insurance applications, civil court record, and any other information obtainable through public or private sources subject to subpoena. Anything you’ve ever said can and will be used against you.

Counsel will cover at least the following topics in some detail:

  • Biographical facts;
  • Education;
  • Employment history;
  • Physical exertion category of work prior to accident(sedentary, light, medium, heavy or very heavy);
  • Skilled or unskilled work history;
  • Transferable skills learned;
  • Earnings history, with tax returns;
  • Prior health and medical history;
  • Prior social and recreational facts;
  • Events on day of accident, in great detail;
  • Conversations with adverse party and witnesses on the scene;
  • Your role and responsibility for the accident or event, to show contributory negligence;
  • Injuries sustained;
  • Chronological medical history subsequent to day of accident, with treatment by each physician;
  • Timetable for acute and chronic stages of your injury;
  • Prior and subsequent accidents with injuries, if any, of any type (fall down, vehicle, workers compensation, etc.);
  • Your view of the nature and extent of disability and impairment of each area of the body that was involved;
  • Activities affected, including activities of daily living and recreational activities;
  • Temporary restrictions imposed by doctors;
  • Functional capacity evaluations – permanent restrictions imposed by doctors;
  • Physical exertion category of post-accident work you are capable of doing with restrictions;
  • Transferability of skills from work done prior to injury;
  • Time lost from work, with specific dates;
  • Work history after accident;
  • Earnings history after accident, with tax returns;
  • How injuries have affected ability to do basic work activities;
  • How injuries have affected earning capacity;
  • Future loss of earning capacity;
  • Bills incurred and future treatment expected.

You should take another look at your medical records.  You should have copies already.  You should also take another look at any statement or answers to interrogatories you may have given.

A typical defense attorney trick is to ask what hurt on a particular doctor visit, such as at the emergency room, and how you would rate the pain on a scale of 1 – 10. Counsel will have the chart on the table. If you say at the deposition that your injury was killing you, and was a 9, but the records say you rated it a 4 on the date of the accident, counsel will know you are exaggerating and will have some grounds for impeachment.

Go over all these points with your attorney well in advance of the deposition so you are prepared for what lies ahead.