Your Deposition: What to Expect as an Injury Plaintiff

Published October 31, 2017 · Injury Law Basics

For most of my clients, the deposition is the first time they have ever been questioned under oath, and the letter scheduling it produces more anxiety than anything else in the case. That is understandable. It is also, in almost every case, unnecessary. A deposition is not a trial, there is no judge or jury in the room, and the person asking the questions is not trying to trick you into anything a well-prepared, honest witness cannot handle.

This post walks through what actually happens at an Ohio personal-injury deposition, the questions you should expect, the handful of rules that make the difference between a good deposition and a bad one, and how our office prepares every client before the day arrives.

What a deposition is

Once a lawsuit is filed, each side is allowed to question the other side's witnesses under oath before trial. Ohio's Civil Rule 30 governs the process. You will sit at a conference table, usually in a lawyer's office, and the attorney for the defendant's insurance company will ask you questions. A court reporter will swear you in and type every word. Sometimes a videographer records it as well. Your lawyer sits beside you the entire time.

The transcript becomes part of the case. The insurance company uses it to evaluate what a jury would think of you, to lock in your version of events, and to look for anything that contradicts your medical records or your written answers to earlier questions. That last point is why preparation matters more than nerves.

Who is in the room

Expect four or five people: you, your attorney, the defense attorney, the court reporter, and perhaps a videographer. The other driver or the store manager is usually not there, though they may attend. There is no judge; if a dispute arises about a question, the lawyers note an objection on the record and a judge resolves it later if necessary.

Most plaintiff depositions in a car-crash or fall case run two to four hours, with breaks. You are entitled to ask for a break at any time, and you should take one whenever you are tired, upset, or need to confer with your attorney.

The questions you will be asked

Defense lawyers follow a predictable outline. Knowing it in advance removes most of the surprise.

Background. Your full name, addresses for the last ten years, education, employment history, and whether you have ever been a party to another lawsuit or made another injury claim. Answer these fully. Hiding a prior claim is the single easiest way to damage your credibility, because the insurer already knows about it.

Prior injuries and medical history. Any earlier back, neck, or head problems, prior surgeries, and doctors you saw before the crash. The defense is looking for a pre-existing condition to blame. Pre-existing conditions do not defeat your claim, but a denied one does. We covered the importance of candor in why honesty with your doctor can make or break a case; the same rule applies at your deposition.

The incident. Where you were going, the weather, your speed, what you saw and heard, what the other driver said, what the officer did. This is the heart of the deposition, and it is where you should have reviewed the crash report and your own notes beforehand.

Treatment. Every provider you saw, in order, what they did, and whether you followed their instructions. Gaps in treatment will be explored, so be ready to explain them honestly.

How the injury has affected your life. Work missed, activities you have given up, sleep, household tasks, relationships. Be specific and be truthful. Do not minimize to seem tough, and do not exaggerate. A juror will eventually read this testimony next to your Facebook page, which is why our post on social media and your injury claim still matters.

Social media. Expect to be asked about your accounts and what you have posted about the incident or your activities. Assume the defense has already looked.

The rules that protect you

The deposition is not a conversation, and the habits of ordinary conversation work against you. We go over these rules with every client, and then we practice them.

1. Listen to the whole question. Do not start answering before the lawyer finishes. Many questions have a trap in the last four words.
2. Answer only the question asked. If the question is "Did you see the other car before impact?" the answer is "yes" or "no," not a two-minute narrative. Volunteering information gives the defense free material.
3. "I don't know" and "I don't remember" are complete answers. Never guess. If you do not know how fast the other car was going, say so. An estimate offered to be helpful becomes a fact you are stuck with.
4. Do not agree with characterizations. "You were in a hurry that morning, weren't you?" If you were not, say no. If a question contains a word you would not use, correct it.
5. Ask for clarification. If you do not understand a question, say so. You cannot be faulted for an honest misunderstanding you flagged.
6. If your lawyer objects, stop talking. Usually you will be told to go ahead and answer after the objection is noted. Occasionally I will instruct you not to answer, and you should not.
7. Tell the truth. Every time, even when the truth seems unhelpful. A single provable lie about something small will be used to argue that everything else you said is false.

Breaks, documents, and the "last question"

Bring nothing with you; anything you carry into the room can be examined. If the defense lawyer hands you a document, read it before answering questions about it, and take your time.

Before the deposition ends, the defense lawyer will usually ask whether anything needs to be corrected and whether there is anything else you want to add. Unless we have discussed it, the answer to the second question is no. Afterward you may read the transcript and correct transcription errors, but that is a review for accuracy, not a chance to change your testimony.

How we prepare you

I do not send clients to a deposition with a paralegal and a pamphlet. Several days beforehand we sit down together and go through the crash report, your medical records, and the written discovery answers you signed. We talk through the outline above. Then we rehearse: I ask the questions the defense lawyer will ask, in the tone the defense lawyer will use, and we work on the answers until you are comfortable. You learn more about how we handle every case at that meeting than from anything on this website.

On the day, I am in the chair next to you from the first question to the last. If the deposition goes well, as prepared depositions almost always do, it often leads directly to a settlement conference or mediation, because the insurer has now seen what a jury would see.

What this means for you

A deposition is a test of preparation and honesty, not of cleverness. Clients who review the facts, follow the rules, and tell the truth come out with stronger cases than they walked in with, because the insurer has learned that its "he's exaggerating" defense will not survive a courtroom. The clients who struggle are the ones who were not prepared or guessed at answers. We do not let that happen.