In a premises liability lawsuit, the fact-finding stage known as "discovery" involves the use of a few common tools: written interrogatories, requests for documents, and depositions. In this article, we'll focus on depositions -- what they are, and what to expect in yours.
A deposition is an out of court statement under oath that is usually given at a lawyer’s office. The plaintiff’s deposition in a premises liability case is very important because it is the defense attorney’s first and only chance to meet you in person, find out what you are like and what your story is. Most defense attorneys have two goals in taking the plaintiff’s deposition:
From his/her investigation and from your answers to interrogatories, the defense attorney already has a good idea of how your accident happened, but he/she needs your deposition testimony to really nail down exactly what happened.
Most good defense attorneys will be very friendly and cordial at a deposition. They leave the heavy tactics and cross examination for trial. Why do this? Because the defense attorney wants to come across as your friend and lull you into dropping your guard and just talk like you’re having a normal conversation. A good defense attorney just asks questions and allows you to talk and talk. But, at a deposition, you must always remember the old line that everything you say can and will be used against you in a court of law.
Everything that is said at a deposition is transcribed into a booklet. After receiving it, the defense attorney (and your attorney) will pore through it looking for inconsistencies in your story - the more inconsistencies, the weaker your case.
At trial, the defense attorney will refer back to your deposition to highlight any inconsistencies in your testimony. If, hypothetically, you testified at trial that you slipped and fell and landed on your side, but at trial you testify that you landed on your back, you can expect that the defense attorney will cross examine you extensively on this inconsistency. He/she might try to paint you into a corner by asking whether you are lying now or whether you lied at your deposition. Your lawyer and you will want to ensure that you keep the inconsistencies in your testimony to a minimum.
Even if your testimony has a minimum of inconsistencies, your appearance and mannerisms can cause you to be a less than ideal witness in front of the jury. Juries don’t like witnesses who are argumentative, rude, hostile, or who simply can’t or won’t answer the questions. Those types of witnesses don’t do well with juries. Plaintiffs who are bad witnesses don’t win as often at trial -- and they get less money when they do win. And because plaintiffs who are bad witnesses don’t do well at trial, they get lower settlement offers because defense attorneys don’t mind going to trial against a bad plaintiff witness.
If you are a good witness at your deposition, you will impress the defense attorney, since you'd also make a good witness at trial. This means the insurance company won’t want to see you on the stand and will offer more to settle your case. How can you be a better witness at your deposition? There are five commonsense rules to follow, and we'll get in to more depth on these rules in the sections that follow:
If you don’t listen to the question, you can’t answer it properly. Always listen to the question. If you feel that you are beginning to lose focus, ask to take a break.
Don’t answer questions that you don’t understand. If you don’t understand the question, ask the defense attorney to repeat it. If you still don’t understand it, ask him/her to rephrase it. Don’t worry about the defense attorney getting annoyed. Your job is to answer the question. The defense attorney’s job is to phrase the question in a way that you can understand.
Don’t just blurt out an answer, especially for a long or complicated question. A deposition is a serious proceeding that can significantly affect the value of your case. Think about the question and what your answer will be. Only then answer the question.
Only after you have heard and understood the question and formulated your answer, then answer the question.
This is the hardest rule for witnesses to follow. You must always be on your guard. You don’t want to give the defense attorney more information than was requested. It is the defense attorney’s job to ask the right questions. Don’t help him/her out. Your job is to answer the question that was asked. Don’t volunteer information.
If you've gone as far as considering a deposition, you've probably already hired an attorney. You should expect a lot of coaching before any deposition. If your lawyer is not offering in-depth guidance, you may not have the right lawyer. Your attorney should be asking you questions as if you're on the stand, and offering suggestions on how to answer tough questions without getting yourself into trouble.