Your deposition is not your opportunity to tell your story, but instead the opposing attorney’s opportunity to get the information he or she wants. The attorney may not ask you the questions you want to hear. That’s okay. You will have an opportunity to tell your story at trial your case goes to trial. The job of the attorney who is deposing you is to get as much information as possible and lock you into answers.
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.
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. In those cases, 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 plaintiff’s time and distance estimates, the plaintiff was at fault due to negligent or inattentive driving, or some other violation of the rules of the road. If precise quantitative estimates are not given, opposing counsel’s plan may be foiled. In other types of cases, questions calling for your recollection of exact details of any event are similarly dangerous traps. Your 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.”
Opposing counsel in your case 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 his or her client (and, in some cases, the insurance adjuster) 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 try to avoid saying anything inconsistent with your prior statements or records. You must assume that competent opposing counsel has or will obtain before trial your complete criminal arrest and conviction record, civil court record, and any other information obtainable through public or private sources subject to subpoena that may be relevant to the case or your credibility. To prepare for your deposition, you should review any answers to interrogatories and documents you may have provided to the other side before you are deposed.
During the deposition, keep in mind the following rules:
Only answer the question being asked. You should answer with a simple yes or no whenever possible.
Never volunteer any information unless asked.
Provide full answers – especially when being asked about the injuries or damages you sustained. The better and more fully you describe how you were hurt by the accident, the better shape you will be in to get the maximum settlement or judgment possible.
If you do not understand a question, ask that the question be rephrased or clarified.
Never guess. If you do not know an answer to a question, tell the attorney that you do not know the answer.
Never provide an exact figure, number, distance or time, unless you know it exactly. Generally, you will not. If you can estimate, you should answer the question but make clear you are estimating.
If your attorney makes an objection, wait to hear if you should answer.
Stay calm and always answer in a polite and friendly manner. The other side will be evaluating you as a witness and staying calm is not only good practice for trial, it may help us obtain a higher settlement if the case settles (as many do).
The attorneys at Kemeny, Ramp & Renaud, LLC have broad and in-depth legal knowledge concerning are a variety of areas and can assist by providing experienced and capable representation. Call us at (732) 853-1725 to schedule a consultation.