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!
Contact the White Plains Personal Injury Lawyers at the Law Office of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation with an experienced, aggressive and knowledgeable lawyer who will fight the insurance companies to obtain the maximum compensation for your injuries, lost earnings, medical expenses, and loss of enjoyment of life.