The deposition is the most important pre-trial procedure in accident cases. Thus, it is critical that the client is well prepared for the extensive and rigorous questioning they are likely to undergo by defense counsel.
We recommend strongly that you prepare the client for their deposition the day before, although the norm is for preparation 1-2 hours before the deposition. This method takes into account the fact that your client is likely to be nervous and will be able to retain more information knowing that they have as much time as necessary to prepare.
Remember that whatever documents the client reviewed in preparing to testify must be exchanged with opposing counsel–thus, make sure that the client has not reviewed documents without informing you. Further, don’t allow your client to write down information that you discussed–there are numerous accounts of lawyers preparing instructions for their clients which then become discoverable at the deposition.
When the client is testifying about the accident, the best answer is a short one–i.e.”Yes”, “No”, “I don’t recall”, and information must not be volunteered. Further, clients MUST be instructed not to guess or speculate about critical information such as the speed of their vehicle–experienced attorneys can make mincemeat of inaccurate testimony using a simple formula used to calculate time, speed and distance.
However, and this is vital, when testimony is being given about their injuries and damages, you must ensure that your client gives descriptive and expansive answers, with adjectives liberally used. For example, we caution our clients not to use words like “discomfort”, but rather, simply, “pain”, and make sure that they describe the pain with adjectives so that a jury can perceive what they are experiencing. Words like “jarring”, “excruciating”, “like an electric shock” have a much more significant impact. Remind the client that this is a dress rehearsal for the trial, and if their injuries come across as minimal at a deposition, they are likely to be viewed by a jury in the same way.
The impact on pre-accident activities is also critical–instruct the client to recreate from the moment they get up in the morning until bedtime, and include chores, recreational activities and simple things like the impact on personal grooming. For example, difficulties in being able to dress oneself can be very powerful and persuasive testimony, yet clients frequently neglect to mention this (possibly due to embarrassment), and focus on the inability to engage in recreational activities, which jurors are more likely to minimize.