New York Personal Injury Lawyer Blog

In the previous article in this series, we focused on the preparation for your deposition. Now that you have properly prepared for your deposition, here are the do's and don'ts for your testimony. First, make sure that you clearly understand the questions you are being asked, and if you don't, say so. I tell my clients that they have three options: tell the defense attorney that you need the question rephrased, ask to speak with me, or have the court reporter read back the question--sometimes the meaning becomes clearer if the question is read more slowly. Second, you must not volunteer information! If I as your attorney do not know what you are about to say, I may not want you to testify on that topic, so only respond to the questions you are being asked. Try to pause between the question asked by the defense attorney, and your answer, both to assist you in thinking about your answer, and equally importantly, to allow your attorney to make an objection to the question if the question is improper or calls for testimony which is privileged. (for example, a question such as "what did you talk to your attorney about is protected by the attorney client-privilege and you would be told not to respond to this question). Feel free to speak to your attorney if you need advice about a question or if you are concerned about a topic which has come up during the deposition, such as a prior criminal conviction--and always remember to discuss any possible issues with your attorney before the deposition so that he or she is not blind sided by a question that you had not discussed beforehand.

There is a very important distinction between your testimony about the accident, which should be as short and limited as possible, and testimony about your injuries, pain and the effect on your life, which absolutely must be thorough, descriptive, and no holds barred.

Testimony as to the accident is a minefield since the defense attorney is looking to get testimony from you that can be used to blame the accident on you rather than his client. Classic examples of this are in New York car crash cases and trip and fall accidents. For example, in a deposition involving an auto accident, the attorney will ask the following: "For how long before the accident did you see the other car? Clearly, this is a trick question. You may not have seen the car at all before the accident, but if you did, it would only be a for a few seconds or less, yet countless witnesses will respond "Oh, for a minute before the accident." Obviously, if you had plenty of time to see the other car before an accident, you would have had time to avoid the crash, so make sure you think about the question before you respond. In a trip and fall deposition, the defense attorney will ask: "Where were looking as you were walking? Most people walk looking straight ahead as well as looking toward the ground, but if you only mention looking straight ahead, you have now sown the seeds of a defense that the plaintiff "failed to see what was there to be seen"--meaning that had you been looking at the ground also, you would have seen the uneven or broken sidewalk and avoided the accident. The motto is give short, responsive answers, think carefully about the question before answering, and if you don't know or can't remember a detail, do not hesitate in giving this answer--never guess or speculate!

Remember that this is your own opportunity before trial to let the defense attorneys and insurance companies know why they should try to settle with you prior to trial, so if you minimize your injuries, you better believe they will. I have frequently had clients tell me during our preparation that "I hate to complain, it's not my personality." Guess what? For the two or three hours of the deposition, you must complain, and describe your pain in detail. USE ADJECTIVES! Never say I have "discomfort". A stubbed toe causes discomfort; a torn anterior cruciate ligament or Achilles tendon hurts like hell! Give examples of what your pain feels like, so that the attorneys, and later on, potential jurors will know precisely what you mean: i.e. "The pain is so bad it feels like I am being stabbed with a knife in my knee when I walk..." Make sure that the defense attorneys know exactly how the injuries have prevented you from doing what you love--playing tennis, running, skiing, or playing basketball with the kids, as well as hampered you in doing activities you must do, such as cooking, cleaning, or other household chores.

Do not let the other attorney cut you off if you have not completed your answers about the toll the accident has taken on your life--remember that the attorney is preparing a report to send to the insurance company claims representative--every detail counts!

Continue reading "New York Personal Injury Case-The Deposition-Part 2" »

In your lawsuit for injuries suffered in a New York car crash, Bronx trip and fall, construction accident, from a defective or dangerous product or a dog bite, (to name a few examples), the single most important event in that lawsuit before the trial is known as the deposition, or "examination before trial." During the deposition, you are placed under oath, and then asked a series of questions by the defense attorneys about your personal background, education, employment history, your accident, your injuries and damages. In essence, the deposition is a dress rehearsal for the trial of your case, and it provides both attorneys and the insurance companies an opportunity to analyze your abilities as a witness. Was your testimony credible? Would a jury like you as a witness and want to find in your favor? Did your testimony establish the elements of your case as to the negligence or carelessness of the defendants and their legal responsibility for your injuries?

Because of the vital importance of the deposition, you should make sure to get a good night's sleep the night before, and arrive for the deposition clear headed and well rested. If it's possible, it is better for you not to take pain killers that you would normally take if they have side effects which could affect your alertness and stamina. Additionally, it is my opinion that if you are feeling more of the effects of your injuries while you are testifying, you will be more likely to emphasize the pain and disability form those injuries. I also strongly believe, although many attorneys do not do this, that preparation for the deposition, including how to respond to questions about your accident and injuries most effectively, should be done prior to the date of your deposition. Typically, lawyers meet with their clients to prepare an hour before (sometimes 15 minutes before) the deposition is to take place--this is a huge mistake, especially considering the importance of the deposition and the likelihood that you will be somewhat anxious and less likely to be able to remember the instructions you are given.

When testifying, you must keep your cool and testify in a calm and clear fashion. Defense attorneys have numerous strategies to rattle you, anger you, intimidate you and attempt to cause you to lose your focus and concentration. It is critical that you avoid these traps--your goal should be to convince the defense attorneys that if the case reaches trial, you will be a formidable witness. You will know that you accomplished this goal if within a month or two of the deposition, the defense attorneys approach your attorney to discuss settlement of your case--in my experience, this happens frequently when the client does well at his or her deposition.

Part 2 of this article will focus on the content of your testimony--how to testify most effectively to prove your case.

Continue reading "New York Personal Injury Case-The Deposition--Part 1" »