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Home :: FAQ :: Personal Injury

If a lawsuit is filed, I have heard that I must attend and give a "deposition". Exactly what is that and how should I prepare for it?

If you have never been to a deposition before you may ask, "What is a deposition"?  Sometimes on television you can see courtroom scenes in which surprise witnesses are called with important testimony.  In the real world courts don't work that way anymore. In today's world each side has an opportunity to question the parties and important witnesses of the other side in a question and answer session called a "deposition".  This is what you have been scheduled for.  Even though a deposition is an official court proceeding, you should not think of a deposition in the way you think of actual testimony in court before the jury.  There are a lot of differences between the two.  For example, if you are in the courtroom, you would be trying to persuade or convince the jury of the believability and importance of your case.  In a deposition, by way of contrast, you are there only to answer the questions put to you by the other side.  You will be placed under oath to tell the truth, and of course, that is the most important thing for you to do.  The other lawyer will ask you questions, but there will be no judge or jury at the deposition.  Your testimony will be treated as the truth for virtually all purposes after you are deposed.

As your lawyer, I will be there with you.  I will be there not only to ask you specific questions but to make sure that the questions the other side asks you are fair, properly worded and not "trick" questions.  I will most likely not ask you any questions at all, because, again we are not there to present your case at that time, but are there only to answer the other side's questions.

You may ask why they want to take your deposition.  First, the other side does not know you and wants to get your side of the case.  Next, they want to see how you look, how you answer the questions, and in general what kind of witness you will make in your own behalf.  This is important, because if they believe that you are going to be an effective witness, they will place a higher value on your case. 

The most important thing that the other side wants is to be able to catch you in a lie or a misrepresentation of the truth.  The attorney taking the deposition will ask you many questions to which they already know the answer but they want to see if you give the correct answers.  If they should happen to catch you in some kind of a lie or misrepresentation, they will be able to point that out to the jury or judge later on, and your case will lose all or most of its value.  Judges and Juries simply do not award substantial money to people who have lied or misrepresented the facts of their case .

You may also ask what questions will I be asked?  Because the Florida Rules of Civil Procedure permit the other side to ask almost anything that they want to ask in a deposition, it is impossible to precisely predict what questions they will offer.  However, most depositions cover the following categories:

  1. Background:  Where you grew up, went to school, work history, previous accidents, previous claims or lawsuits filed, and previous injuries or significant other injuries.
  2. Accident facts:  Where you had been, where you were going, what you had observed before the accident, how the accident occurred, and what conversations went on afterwards, etc.
  3. Injury and Treatment:  How you were hurt in the accident, what areas of your body bothered you, what medical treatment you sought, and what treatment has been given.  They also are going to want to know about any pre-existing injuries or treatment that you had received prior to your accident.
  4.  Effects of the injury:         The attorney asking the questions will want to know whether the injury has interfered with your work, how it has effected your home life and activities, and what you have trouble doing now or can't do now on account of the injury.

You may ask how should I answer the questions asked of or posed to me?  There are two simple rules for answering the questions of the other side.  First, it is very important that you listen to the whole question and make sure you understand it.  If you don't understand the question you may say so and the question will be repeated or rephrased.  When you answer, your answers will by recorded by a court reporter.  Please answer the questions asked of you in a direct manner.  Please don't use the words "uh huh" or "un huh", since these expressions cannot be easily recorded and have no value when placed on the record since they can just as easily be interpreted as a "yes" or a "no" answer.  If the answer is a "yes" or a "no" answer, please use "yes" or "no" in your replies.  Please do not nod your head yes or shake your head no without giving a verbal response of either "yes" or "no" to the question.

The second very important rule is that you give only the information that is asked in the particular questions that are put to you.  Keep your answers as short as possible while still answering the question fairly.  Remember, the more you say, the more the other side has to use against you.  Therefore, confine your answer only to the question asked; do not volunteer any information.  If the attorney asked you what color was the sky, you may answer the sky was blue.  Do not volunteer that the clouds were white, that the trees were green and that the birds were singing,  and that the children were playing out in the yard.  Keep your answer short and sweet and to the point.  As Officer Joe Friday used to say, give "just the facts ma'am/sir, just the facts".

During the deposition you may be inclined to ask me questions.  We can go off the record and do this.  Please just tap my shoulder and say, “Mike, can we talk?”  If need be, we’ll go off the record.  Since our conversations in my office or outside my office are confidential and privileged, I am instructing you at this time that I will be raising that privilege and you should not divulge any of what I have said to your or what you have said to me during your deposition.  If we had referred you to a physician, that is privileged and confidential as well.  As a consequence, please just tap my shoulder and say, “Mike, can we talk?” if the question is asked how did you get to Dr. Smith, Jones?  Again, what you have told me and what I have told you is not discoverable by the defense and it should not be volunteered at deposition by you.

You may also ask what kind of attitude should I have in giving my deposition.  In answering this question you should not think that the other lawyer is your enemy.  In fact, you should be friendly and cooperative in your answers, and it won't hurt to smile.  The reason for this is that if the other side understands that you are a nice person they will put a higher valuation on your case than if they think you are not going to make a good impression on the Judge or a Jury.  Of course, if you are relaxed and just being "a nice person" you will feel better and you actually give better answers, keeping in mind the instructions that I have given you.  Please be friendly with the attorney who is taking your depositions.  However, please remember he is not your "buddy".  Often attorneys will try to get overly friendly with you and make you say things that you wouldn't ordinarily say at depositions.  The bottom line is, please be warm and cordial.

Additionally don't try to figure why a certain question is being asked; that will just take your concentration away from answering the question.  Think about the questions before you answer and remember to answer the question fairly but only answer the question that is asked.  

On rare occasions I may object or instruct you not to answer the question at all.  If that happens, don't worry about it.  If I object, let me finish my objection and then answer the question.  It is my job to make proper objections on the record to be preserved for a judge to consider later on.  If I instruct you not to answer a specific question, do not answer that question. 

There are some common traps that defense attorney's use to try and trip people in their depositions. The first area that normally trips deponents up concerns old claims or injuries.  As you know, computers these days contain about everything you've ever done.  The insurance companies have access to most computer information and they will dig up any and all insurance claims that you have ever made.  They will also know about previous injuries, and they will know many of your medical conditions, especially those for which you may have had a health insurance claim.  Nevertheless, the lawyer will ask you in detail about these, hoping that you will try to hide or misrepresent information about one of them.  Again, if that happens, the lawyer will be able to point that out to the jury or the judge, to try to prove that you are not a truthful person.  When you are asked about prior injuries or medical conditions, it is very important that you be as complete and as accurate as you can be about previous injuries, accidents, insurance claims and prior medical treatment.  It is of the utmost importance that you do whatever you can to refresh your memory prior to the deposition, speaking with family and friends concerning any injuries you may have received.  The attorney for the insurance company or defendant that will be deposing you will know many of your medical conditions and accidents, especially those for which you have made a motor vehicle, homeowners or health insurance claim.

You may also be asked about any arrests or convictions you may have had.  Again, the above advice about being complete and honest applies.  All information about arrests or convictions is available, and I assure you that the insurance company will have that information.  Don't try to hide such information or misrepresent it.  If you do, the results will be fatal to your case.  Please note that in Florida, if you have not been adjudicated guilty of an offense, then that offense charged does not constitute a conviction. If you have any questions about this please let me know, and I will clarify your questions before the deposition.

The attorney taking your deposition will be interested if your activities before your accident have been affected by your injury.  Sometimes clients will say that they cannot do a certain activity now, when what they really mean is that they don't do the activity very often or that when they try it they don't do it as well as they did it before the accident.  Be careful about that; you should say that you cannot do a certain activity only if you absolutely cannot, and do not, and have not performed that activity.  Remember, it is very common these days for the other side to "spy" on you and film your activities with a video tape.  It is not uncommon for the insurance companies to video tape you early on in your claim and ask you questions in deposition concerning certain activities you may have been videotaped doing.  They will be delighted, if you say that you can't do the activity when they have evidence that you can.

In preparing for your deposition you must remember that your manner of dress is important.  Since you are trying to make a good impression, you should dress as if you are going to Court or even to church.  Men should dress in a coat and tie if possible and a woman should be in a conservative outfit appropriate for church.  If it is practical or appropriate to do so in your case, you should visit the scene of the accident before testifying.  As you visit the scene, go over in your mind how the accident occurred or who did what and when.

Finally, in order to summarize my instructions to you on how to act while giving your testimony I would advise you as follows:

Tell the truth. Never lose your temper.  Don't be afraid of the lawyers. Speak slowly and clearly. If you don't understand the question, ask that it be explained or repeated until you do understand the question.  Answer all questions directly, giving concise answers and stop talking.   Never volunteer any information.  Wait until the question is completely asked, then answer it and stop talking.  If you can answer a question completely with a "yes" or "no" answer please do so.  And stop talking.  Stick to the facts and testify only to that which you personally know.   Tell the exact truth about your injuries or losses.  Do not minimize or exaggerate.  Testify only to basic facts and do not attempt to give opinions or estimates of time and distance unless you have good reason for knowing such matters.

Additionally, if you don't know an answer, just say so.  Some witnesses think they should have an answer for questions asked. You cannot know all the facts in your case, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted.  It is imperative that you be honest and straight forward in your testimony.  Also if you do not recall at the time the question is being asked and you are giving an answer, please tell the attorney that you cannot recall "at this time". 

Don't try to memorize your story.  Justice requires only that you tell your story to the best of your ability.  You must remember that the most important aspect of your case is you and the appearance that you make.  If you give the appearance of earnestness, fairness and honesty, and if, in giving your deposition, you keep in mind the suggestions made here, you will be taking a great stride toward a successful and satisfactory completion of the litigation of the suit or claim that has been filed in your behalf. 

Most people don't find depositions unpleasant, and there is no reason to be nervous.  If you follow the above advice you will give a good deposition and help your case.  Above all, tell the truth.