When our clients suffer injury because of a car accident or medical or other negligence, they are plunged into a world they’ve only seen on TV. Words that they usually hear from famous actors in suits walking through dramatic courtroom sets become commonplace. Clients tell us it is often easy to get swept up in the legal jargon. Fortunately, real life is not as dramatic as what you see on TV, but it can be just as confusing. We’re here to help you understand the legal process you’ll be undertaking, starting with one of the most important parts of any case – the deposition.
So, what is a deposition in a New York personal injury case? It is sworn testimony that the injured party and the defendant give under oath during the case to help parties learn facts about the case and prepare for trial.
Depositions are critical in every personal injury case. It is the only chance for each side to size up the opposing party, learn the facts that will come out at trial, and to nail down those facts through sworn testimony to prevent surprise at trial. It also allows each side to evaluate the case for settlement.
The deposition usually takes place in an attorney’s conference room. We like to have our clients appear in our offices, as do most attorneys for their clients. When our clients walk into the conference room with us, they see the defense attorney, occasionally the defendant, and the court reporter (aka stenographer). If there is more than one defendant then there will be more than one defense attorney. (Each defendant will have an attorney that can ask questions.)
If you are the injured party, you will sit on one side of the table and the defense attorneys will sit on the other side. The stenographer will swear you in. Then you will answer questions about many things, including the events in dispute, your injuries and/or damages, your personal background, and how the injuries have impacted your life. It is important that you answer these questions honestly, but with as little unnecessary information or guesswork as possible. If you don’t recall certain information, it is more than okay to say so.
It’s perfectly natural to feel nervous about a deposition. After all, it’s not often that everything you say is put under a microscope. You naturally want everything to go well with so much at stake. We will be with you at the deposition to make sure your rights aren’t being infringed upon and that you aren’t being asked inappropriate or irrelevant questions. You can take a break if you choose, speak to me if necessary, and have the question read back or rephrased if you don’t understand it.
Though it can sometimes be a long process, it is a good thing when you testify at deposition. It means that the case is moving, and you are getting closer to resolution by trial or settlement.
We understand you will be nervous walking into a conference room with an opposing attorney. It would be strange if you weren’t. So, we will be with you every step of the way. We will prepare you before the deposition so that you will feel – and be – ready to testify. When it is over, most likely you will tell us that it wasn’t that big a deal, and there was really nothing to worry about. So how do you go from being nervous and apprehensive to feeling like you are ready for the deposition?
How to Get Ready for Your Deposition in a New York Personal Injury Case
You must first understand what a deposition is – and what it is not. We set forth below some of the important lessons that we share with our clients before depositions. These are some but not all the items that we cover in deposition preparation with our clients. The biggest lesson – too obvious for its own section – is to be honest and accurate in your testimony. Without this, everything else fails.
Lesson 1 – A deposition is not a conversation
In everyday conversations we interrupt, anticipate, free associate, go off topic, segue, and joke. These conversational habits have no place at deposition. At deposition you answer questions under oath – and only those questions. There is nothing else – no unnecessary explanations, no volunteering of information, no thinking out loud, no unrelated topics. There is only a specific answer to a specific question. This is a critical fact that our clients learn before deposition. Would you like a simple example? Try this:
Q: Do you know what time it is?
A: Yes its six o’clock and thanks for reminding me, I am late for dinner with my husband, we are going to the corner restaurant for a quiet dinner…. we have been having some issues with our youngest child and we needed some time to discuss…. how have you been?
Q: Do you know what time it is?
This example sums up this lesson. Once you internalize this fact, everything else makes sense. So how does this work in practice?
Answer any question with a “Yes” or “No” if you can. The defense attorney may try a variety of tactics, from joking to intimidating to downright boring you to draw you into a “conversation” with her. Once you fall back into that mode, you will be volunteering information, and running on about things that are not responsive to the question, but which can provide information that can hurt you. Remember — a deposition is not a conversation. Keep your answers short and directly responsive to the question, stop talking as soon as you have answered the question, and you will do well.
Lesson # 2 – Silence is your friend at Deposition
When you first meet and talk with someone, you may encounter the awkward pause. There is nothing to say, so you frantically try to come up with anything to fill that silence. Or if you are in a social gathering and you are nervous, you will make conversation to feel more at ease. Both habits are socially ingrained. You must leave both at the door of the deposition. Because like your other normal habits discussed above, they will only hurt you at deposition.
Remember, you are at a deposition only to answer specific questions, and nothing else. Defense attorneys know about socially ingrained habits, and they will provide nonverbal cues and prompts to get you to keep talking after you have finished your answer. They may be friendly, and you may be tempted to let your guard down and keep talking after you answer the question. You may want to fill in the silence that hangs over the room with five people just looking at each other. Don’t do it. Instead, embrace the silence. Take a minute to take a deep breath. Silence is your friend. Your brain is thinking of gaps in conversations, but you are not in a conversation. You are at a deposition, and in this arena, you should appreciate silence and use it to your advantage. This also means keeping silent during breaks. There is no small talk or banter.
Lesson # 3 – A deposition is not the place to explain your case
Our clients often feel that if they just explain what happened to the defense attorney then the defense attorney will understand, agree, and the case will resolve. This is a perfectly normal feeling to have. You want to be heard and understood. But here is the hard truth. The defense attorney and the defendant’s insurance carrier have already assessed the case. They likely know that their client is responsible, and that you are due substantial damages in compensation under the law. It doesn’t make a bit of difference.
The defense attorney will still use the deposition to minimize her client’s liability and your damages – in every case and no matter what the facts. Don’t take it personally. That’s just the way it is. Trying to explain what happened to the defense attorney will only backfire and work against you. Trust us on this. Just answer the questions you are asked – and leave the room. You will explain what happened at trial to the jury.
Lesson # 4 – The Zen of deposition – slow and steady carries the day
We live in a time starved culture. Everyone hurries. We talk quickly. When we get nervous many of us talk even more quickly. And when we know the answer to a question, we jump in on the question before it finishes to answer it. All these ingrained habits work against you at a deposition.
In a deposition things are different. Although it may seem counterintuitive – and it is – the slower you speak and the longer you take before you start answering a question – the quicker and easier the deposition goes. Why? Remember the stenographer. He or she is most important person in the room. As you jump in on a question before it ends, or answer with no pause, or talk quickly, you are stressing the stenographer. At a certain point, the stenographer will stop the deposition, throw up the hands, and say, “stop let’s start over again.” Then you must start the question answer process again, or have the question read back again. If this happens enough times, you will have a disjointed record and you will be at the deposition much longer than you or we want you there.
So, wait three seconds after the question ends to form your answer and then say your answer. This also gives your brain time to frame and consider what you are about to say and weigh in and tamp down the emotion. This is a crucial skill that we will help you learn.
The steady part of this lesson means your demeanor, or how you are presenting to, and interacting with the questioner at the deposition. We prepare our witnesses to show up with a calm, measured, non combative demeanor. This means that they don’t take offense to a question, or to a questioner. They don’t argue with the questioner. They don’t roll their eyes or get frustrated or angry. We also prepare you also not go the other way, by joking around with the defense attorney, or making small talk. All these things are normal to varying degrees. None of them help you at deposition. So, we prepare you to be calm, polite, and focused, and to stay that way until you are in your car in the parking lot. Then you can call us and vent.
Lesson 5 – Don’t assume or guess anything
In our everyday life, we assume things and state them as fact – quite frequently. You cannot assume anything at deposition. You can testify to what you saw, said, heard, wrote, received, smelled, or remember about an event. But not to what you assumed. And certainly not to what you are guessing occurred. These are not facts and they have no place at a deposition.
Lesson # 6 – Don’t keep us in the dark when preparing for deposition
It is normal to feel uncomfortable discussing with us things in your past that you would prefer to forget. Maybe you failed to file taxes, had an affair, or were convicted of a DWI. Maybe a reckless driver t-boned your car and smashed up your knee. Why bring up that old high school knee injury to the same knee that happened so long ago? We understand that you don’t want to tell us about these types of things. But you need to get past that when you are preparing with us for a deposition. Here is why.
The defense attorney most likely already knows about them. Not to freak you out, but it is very easy now to learn just about anything about anybody. You should assume that the defense attorney will possess all your prior employment, medical, criminal, prior claim, and insurance records. This information can be used against you at the deposition, particularly if you deny facts that the jury later learns are true. This is also true for social media.
We have seen this unnecessary damage to our clients at depositions many times.
You can prevent this in your case by sharing this information with us before the deposition. We can then evaluate the information and prepare you for how to answer these questions. Additionally, if these topics are off limits for a deposition, we can research applicable cases and be prepared with such case law at the deposition. You need not bear the added stress of not preparing for these types of questions, worrying that they will come up, and how you will answer them, without our help and guidance. So, share the skeletons in the closet with us and feel that weight lift off your shoulders. Let us help you on this.
Lesson # 7 – Dress for success
We know that people should not judge a book by its cover. But everyone does. And this is particularly true at depositions. The defense attorney will be viewing you through the eyes of the jury and will be advising her carrier about whether you make a good appearance. Your dress is a big part of this. The important thing is that you are comfortable in what you are wearing at the deposition, and that it presents a neat, clean, and positive impression of the person that you are.
We used to leave it at that, but quickly realized that everyone has a different view of what this means. So, we now will tell you as our client that you should dress like you are going to a house of worship or a semi-formal event. For men this means a collared shirt, slacks, dress shoes, and a clean well shaven face (unless you have a beard.) For women, a dress is fine, as are dress pants and shirt. We suggest that all tattoos be covered, to the extent possible, and that facial rings and piercings be removed.
If you are not sure what to wear, don’t worry, we will cover this with you during our deposition preparation session. If you want to read more about why proper attire is important, please see our FAQ entitled “How Should I dress when I go to Court?”
So now that you know how to be well prepared for your deposition, it’s as simple as answering questions about your accident or injury so we can get you one step closer to your final resolution.
What Questions Will They Ask at My Deposition in a New York Personal Injury Case?
If you’ve read this far, you’ve probably got a good idea of what kinds of questions to expect at your deposition. As we outlined earlier, the deposition serves as a way for both parties to learn the facts about the case under sworn testimony to develop a trial strategy. So, before a deposition you should expect to answer questions regarding everything the defense feels are relevant to your injury or accident.
The three main topics the questions will cover are your background, your experience of the events in question, and the physical and financial ways in which the events have impacted your life. All these topics pertain to your own experience, so apart from the preparations we’ve already discussed, all you need to do is answer these questions honestly.
The questions about your background will cover much of what you might expect, namely, where you live and work, your family, your income, etc., but you may also be asked about prior medical conditions and injuries before your accident. From here you will usually be asked about the disputed events and the medical treatment you received after said events took place. This may include questions about how a car crash occurred, your time of arrival at the hospital, your symptoms upon arrival, and any discussion you may have had with your doctor. We know that your injury was most likely a hectic and traumatic experience for you, so again, if you don’t remember specifics about the incident it is okay to say so. Finally, you’ll be asked about your injuries and the financial impact/loss of income caused by the events.
What Do I Need to Do After the Deposition to Complete the Deposition Process?
When the deposition is over, you’ll speak to us, head to your car, and go home. Probably you will head for the couch, ice cream, and a comforting TV show. You’ll be relieved and tired. Hopefully, you will feel that you’ve done well at deposition and helped move the case forward. But this isn’t where the deposition process, and your role in it, ends.
After you leave, the court reporter will take all of your testimony and compile that into a book, which is called a deposition transcript or in New York practice terms, an “EBT” or “Examination Before Trial” transcript. The court reporter will send this transcript to the defense attorney, who will in turn send it to us. You will then have 60 days to read the transcript and look for any errors the court reporter may have taken down before returning it to us so we can return it to the defense. Before you return it, you have to execute it before a notary public.
What kind of errors are we looking for, and what can we do with those errors if we find them? Basically, we are looking for clear errors in your transcribed testimony. For instance, if the court reporter has taken down the word “yes” when you said “no” then of course this is something that must be changed. We’ll also look to see if the court reporter took down or misspelled words. However, if you would simply like to change the way you said something because you think you could do a better job, that’s not an “error” we will recommend you go back and change. If there are valid errors, we’ll have you execute what is called an errata sheet which is attached to the transcript to make those changes. That errata sheet also has to be executed before a notary public. (If there are no changes, you don’t do anything with the errata sheet). You send the executed deposition transcript back us with the executed errata sheet if any changes and we send it to the defense attorney.
Why Is My Deposition Testimony So Important in a New York Personal Injury Case?
The deposition is used in many ways, most importantly at trial. For example, if you at trial testify that the light was red, and in your deposition you testified that the light was green, then the opposing attorney can produce your executed copy of the deposition transcript and confront you with it. We can also use a deposition of the defendant in the same way. Both sides can also introduce deposition testimony directly into the record by reading it to the jury. For example, if the defendant in a car accident case testifies that he ran the red light and smashed into your car, then we can read that deposition testimony directly to the jury on our case, and we don’t have to call the defendant to get this testimony in. This is a major benefit for us at trial.
The deposition is critically important in a New York personal injury case. We will be there with you to help prepare you for your deposition. This will further your case at trial, and move you forward to final resolution, and to get on with your life. A well delivered deposition is one of the hallmarks of a successful client attorney team. At the Law Offices of Patrick J Higgins PLLC, we pride ourselves on this process, and we will work our hardest to ensure that this key part of your case goes smoothly.