Your Auto Accident Deposition

Thursday, 23 July 2009 14:34

Let us assume you have been in an automobile accident in Sacramento, California. You are the Plaintiff and you have just received notice from your attorney that the Defense has set your deposition. What are you to expect? A deposition is the taking of oral testimony of a party or witness, under oath, before trial.

A court reporter will be present to record the lawyer's questions and your answers, which will later be typed in the form of a booklet. Prior to the middle of the 20th century cases were frequently tried upon the basis of mutual ignorance of the other party's allegations both by the plaintiff and defendant.

This frequently resulted in, for instance, surprise witnesses or surprise evidence, which totally changed the character of the case and unfairly prejudiced the party against whom the evidence was introduced. This was frequently referred to as "trial by ambush". The legal system was changed to provide for what is loosely referred to as "discovery". This means that both the defendant and the plaintiff are provided every possible opportunity, subject to very few limitations, to discover virtually every aspect of the other party's case.

The rationale is that when both parties fully understand both sides of the case, settlement of the claim on fair ground is encouraged, and, most importantly, verdicts in trials are much more likely to be based upon justice than surprise. Accordingly, the deposition is something like a "fishing expedition." The opposing attorney will ask you wide-ranging questions trying to discover every aspect of your case. This is why you should not volunteer information. Because a question is not asked you at the time of the deposition this does not mean that you are precluded from putting that evidence in at time of trial.

This is why it is very important not to volunteer information, but only to answer the call of the question. You must answer the question correctly but when you volunteer information you will develop additional avenues for the other attorney to probe.

Below are listed obvious examples of how not to answer questions (admittedly some of these examples are either humorous or ridiculous but they do illustrate the point):

Q. Have you ever been convicted of a felony?
A. No, but I have been convicted of a misdemeanor.

Q. Did you drink alcohol within 6 hours before the accident?
A. No, but I was heavily under the influence of prescription drugs.

Q. Did you have any back problems before the accident?
A. No, but I did see a doctor about problems with my knee.

Q. Did you personally discuss the accident with anyone?
A. Well, I discussed the accident with my attorney, my husband, and my son. Someone did mail me a letter saying that they were a witness to the accident but I didn't discuss the matter with them.

Q. You are claiming future lost earnings as a result of this accident. Did the injury preclude you from doing your work?
A. Yes, but it probably didn't make any difference because I would have been fired for other reasons at a later time.

Q. Have you ever received a bachelors' degree from any college?
A. No, but I did receive an AA degree from a junior college. (This would probably be a harmless answer but it merely illustrates the point that you should not volunteer information.

You have been asked if you have received a bachelor's degree from any college. Your appropriate answer to that question would be no. If you volunteer that you received an AA degree from a junior college, this only provides a further avenue for the attorney to pursue questioning of you. Many times by harmlessly volunteering information the client will ultimately damage their case because the attorney will continue with further questioning on the basis of information that has been volunteered). Please listen to the attorney's question and answer it directly. If you are able to answer the question yes or no, always answer the question in that fashion. For instance, if the attorney has asked you if you have been treated by any doctor as a result of the accident you would not say "Yes, Dr. Smith, Dr. Jones, and Dr. Hardwood". You would merely answer, "Yes". If he wants to pursue the question further, he will ask you which physicians treated you.

Over the years of attending depositions with our clients we have noted that many of them try to fill in "missing blanks" while answering depositions. Depositions are usually taken months or years after an accident and there are things that clients do not remember. However, in normal conversational activity we all tend to "fill in blanks" to make a complete story. For instance, a client might testify that, "I slowed down for the light and came to a stop. I looked in my rearview mirror and saw the defendant's car approaching me at a rapid rate of speed and felt a tremendous impact from behind". The opposing counsel might then ask, "Did you hear brakes screech?"

At this point in time the client really doesn't remember one way or the other whether or not he heard brakes screech but he might testify that he did hear brakes screech because it completes the picture and he assumes that the other side must have stepped on his brakes before the impact. The client further assumes that if the defendant slammed on his brakes that close to the client that there must have been a screech of brakes. He does not actually remember hearing any brakes, but testifies that he did. This is something that he should not do. It is okay not to remember certain aspects of events that happened to us years ago. I analogize this to attempting to fill in pieces of a puzzle. If you are completing a thousand piece puzzle of an automobile and the puzzle is missing one piece (that piece which has the right front headlight on it) when you look at that puzzle your mind will fill in the missing headlight.

Assuming that you never found the missing piece to the puzzle and were, a year later, cross examined on what the automobile looked like, if the cross examiner asked you "Did the automobile have two headlights?" you might be tempted to answer "Yes" because you have "filled in the missing piece." However, the correct answer would be "I only saw one headlight in the puzzle." Another way of looking at it is that human beings, in relating an incident, hopefully try to relate the most accurate rendition of the incident. Inherent in such a rendition are a lot of assumptions of what happened.

The key thing to remember is this: AT THE DEPOSITION THEY ARE NOT TRYING TO FIND OUT WHAT HAPPENED. THEY ARE TRYING TO FIND OUT WHAT YOU REMEMBER HAPPENED, WHAT YOUR PERSONAL RECOLLECTION IS. In summary, remember that depositions are basically used (with some exceptions not discussed here) merely for the purpose of contradicting you at time of trial. In other words, the deposition itself will not be placed, in totality, into evidence. It will be used only to help the opposing attorney prepare his case against you and for purposes of him contradicting you at time of trial.

Accordingly, it is very important that you answer truthfully. However, the shortest answer you can give, consistent with truth, is the best answer to give. OPPORTUNITY TO REVIEW AND CORRECT DEPOSITION Although you will have a chance to review and make corrections to your deposition, a lot of corrections would seriously undermine your credibility. Therefore, you should try to avoid the need for any later changes. If it occurs to you during the deposition that you have made a mistake, immediately inform the attorney questioning you, and correct it then and there.

DRESS AND APPEARANCE: Your dress and appearance will affect the other side's evaluation of the appearance that you will make before a jury so it is important that your dress be appropriate to your position in life.

GENERAL DEMEANOR DURING THE DEPOSITION:
a. Sit up straight.
b. Avoid unnecessary gesturing.
c. Speak up.
d. Do not nod your head for an answer.
e. Do not chew gum. f. Do not smoke.
g. Do not lose your temper. h. Be courteous.
i. No joking or wisecracking.
j. Say yes or no instead of uh-huh and yea.
k. Consider the occasion solemn and avoid getting "chummy" with opposing counsel.
Normally, opposing counsel will want to be "chummy" with you to lull you into a false sense of security.

NECESSITY OF BEING TRUTHFUL: The first and most important instruction is to be truthful in your answers. This means not only refraining from telling a deliberate falsehood, but also means being accurate. Do not guess at your answer. If you do not know the answer, admit you don't know. If your memory is weak on a matter but you feel you should know the answer, admit nonetheless that you do not recall.

UNDERSTANDING THE QUESTION: If you do not understand the question, ask that it be repeated or rephrased. Admit that you do not understand it and ask for an explanation.

LIMITING THE ANSWER TO QUESTION: Do not answer beyond the question being asked. Do not try to anticipate the "line of questioning." After you have answered the specific question, stop talking and wait for the next question, even if the lawyer pauses as though waiting for additional explanations.

DO NOT EXAGGERATE: Do not exggerate either your complaints or any point that you are trying to make. It will invariably be turned around and used against you. When questioned about injuries to various parts of your body, freely admit the parts that are not injured. But do not fail to state your true and legitimate pains and problems. This is not the place to be brave about all your injuries either. Be truthful.

PERSONAL BACKGROUND WILL BE EXPLORED: While many such matters will not be admissible in trial, the opposing attorney is nonetheless entitled to inquire about such personal things as:
1. Marital history.
2. Educational background.
3. Religious affiliations.
4. Employment history (including reasons for changing employment).
5. Personal and family income.
6. Previous residences.
7. Any arrests or criminal convictions.
8. Drinking record.

PREVIOUS CLAIMS OR LAWSUITS: Generally the only way a previous claim or lawsuit might become admissible at trial is for you to fail to make a disclosure when asked about them on your deposition. That can cause serious problems later. Be certain to discuss this with me before your deposition.

QUESTIONS REQUIRING SPECIAL CAUTION:
1. Questions that assume facts. This is the old" when did you stop beating your wife" question. Many questions innocently asked may mistakenly assume a fact you don't agree with. Be alert to such an assumption on the part of the lawyer asking the questions and promptly advise him that you cannot answer the question asked in that way.
2. Questions in the alternative. Sometimes a question is asked in the alternative such as "Was the traffic heavy or light." Such a question assumes it is one or the other in fact it may be somewhere in between. A question such as "was it blue or green" denies any other alternative and can thus be misleading to the witness.
3. Paraphrasing by the lawyer. Some attorneys attempt to summarize a witness' testimony on a particular subject and repeat it back and ask the witness if that is what he is saying. It is rarely summarized exactly as you said it, and just a missing word or two can make a big difference. Listen carefully to such restatement of your words and resist giving an unqualified "yes" when you are asked if that is what you have said.
4. Time, speed, distance questions. Rarely can an accurate estimate be made of time, speed and distance regarding an event that occurs in a split second such as an auto collision. Be sure your estimates are reasonable, if you are able to estimate. If your estimate is a very rough estimate, say so. If you can't make an estimate, say so. Inaccurate estimates can be used against you very effectively, so be very careful.

WHO HAVE YOU TALKED TO ABOUT YOUR CASE? Do not be defensive and guarded if you are asked who you have talked to about your case. It is perfectly natural and proper to have discussed your case with your attorney, family and similar people.

PREVIOUS WRITTEN STATEMENT: If you have previously given a written or oral recorded statement about how you were injured to the other side, you can expect to be questioned about it.

SKETCHING A DIAGRAM OF THE SCENE OF THE COLLISION: You may be asked to draw a diagram of a collision or other scene. It will be helpful to have visited the scene provided it isn't too distant from your home to orient yourself and refresh your memory on details and distances. Again, inaccurate diagrams can be used against you very effectively, so be careful.

OBJECTIONS TO DEPOSITION QUESTIONS: Never ask your lawyer during the deposition "Do I have to answer that question." If the question is objectionable (which is rare in depositions), your attorney will object without your having to ask.

QUESTIONS BY YOUR ATTORNEY: In most cases your attorney will not have any questions to ask you. If erroneous information or impressions have been given during your testimony, he may decide to correct the record, but that is about the only reason for such questions by him.

PERSONAL INJURY SUITS - ADDITIONAL PREPARATION NATURE AND EXTENT OF INJURY: Be prepared to testify what parts of your body were injured, what parts have healed; what has continued to bother you; what you cannot do now that you could do before; the type of pain you are experiencing; how the pain or physical impairment impacts on your work, your family life, recreation, etc.

MEDICAL AND INJURY HISTORY: In any personal injury case, you will be questioned about any previous injuries whether or not related to the present injury. Likewise, your complete medical history will probably be discussed.

MEDICAL EXPENSES: While you will not be expected to remember each medical bill or the amount thereof, you should have a general idea of the total sum of the medical bills and the general nature of the services and care, which the bills represent. If medical bills have been paid by other insurance or you have a wage continuation plan, such matters will still be gone into even though they are nevertheless legally recoverable damages.

MEDICAL CARE AND TREATMENT: You should be prepared to describe the principal doctors who have treated you, the period during which you were under each doctor's care, and whether you are still under such doctor's care or have been released. You will probably be asked who referred you to each doctor. You should be prepared to answer whether your doctor has released you to return to work and, if so, the date, and what your doctors have told you.

PROPERTY DAMAGE: If you had property damage, be prepared to testify about the following: when, from whom and where it was originally acquired; how much was paid in money or other consideration or whether a gift or other free or special acquisition was involved; your opinion of the value of the property immediately before and after the damage; appraisals made before the damage and by whom; what you have done since the damages to care for the property to prevent further damages; present location; storage fees; amount of salvage; repair bids and appraisals after the damage and by whom; why it has or has not been repaired or sold; whether replacement property is agreeable to you.

LOST INCOME: All income and profits lost and to be lost from all sources caused by your injuries are important. Be prepared to give all the details about how, why and the amounts.

OTHER DAMAGES: Be prepared to testify about all other actual financial losses you may have or expect to suffer in addition to property (such as automobile, clothing. lost cash, jewelry, etc.), medical expenses and income and profits. Examples would be wrecker fees or expenses to clean clothing or repair damaged watches, jewelry, etc.

LOSS OF CAPACITY TO ENJOY NORMAL LIFE: One area that clients are traditionally weak in when their deposition is taken is that they are not prepared to discuss those activities which were traditionally enjoyed by them before the accident and which they were unable or severely restricted from doing. For instance, if a person's main hobbies were swimming, hiking, and jogging, were they to lose their little finger in an accident, these activities would have only been restricted for a very short period of time. However, if, as a hobby, they also played a concert grand piano, the loss of one finger would be of income consequences to the continued enjoyment of this hobby. Likewise, where a person engaged in gardening, housework, general repairs around the house, and a myriad number of other types of activities, it is important to be ready to say what kinds of activities were restricted or what kind of activities could not be engaged in following the accident.