Tips on Giving Deposition Testimony

If a petition has to be filed in your work comp case or if a lawsuit has to be filed in your personal injury case, you are likely to have your deposition taken by the defense attorney. Our office provides tries our clients with practical information to make this process less stressful and more helpful to the case.

First, what is a deposition? A deposition is the spoken testimony of someone taken under oath before trial. The questions you will be asked may pertain to information that is relevant to the case or which might lead to the discovery of relevant facts. A discovery deposition is not like any trial you may have seen on television. It will be done in private and in an office. Your attorney will be there with you during the time the other side is asking you questions, and we’ll go over your testimony with you before you testify. There will be a court reporter present at your deposition, taking down everything that you say. Therefore, everything which you testify to must be accurate and truthful. We will be able to take the deposition of the other parties in your case at another time.

Second, what is the purpose of a discovery deposition? The purpose of the discovery deposition is to discover all the facts a witness may know. This will assist the lawyers in the preparation and trial of the case. It also helps to settle the case when the facts are known by both sides. This is a normal and customary thing to do in all workers’ compensation cases.

The following information covers some, but not all, of the subjects we often discuss with your clients prior to their deposition.

How important is my appearance? At the time of your discovery deposition you should remember that this is probably the first opportunity that the other attorney(s) has to meet you. You will be judged by opposing counsel as to such things as you honesty and frankness. It is very important that you make a good impression upon opposing counsel. However, you may wear normal everyday clothes, but make sure you are clean and neatly groomed.

How should I prepare for my deposition?

• Please know ahead of time you may or may not “like” the other attorney. However, you must treat everyone with respect. Your attorney will make sure that you are treated in the same manner.
• Come prepared to show any injuries that are of the type that can be seen.
• Read through any diary or journal entries you may have kept about your accident/injury.
• When asked to describe your injuries, keep in mind your condition may have changed over time. Start with how it was at the time of the accident and tell how the condition has either gotten worse or gotten better. You should be as descriptive as possible of all facts that you testify to, and try to present a picture which can be understood by anyone listening to your testimony or reading your testimony later in the deposition transcript. For instance, in describing the location of your pain, don’t just point to where it hurts. You will need to say, “It hurts in the middle of my back at about the belt line and runs down my right leg.” If you just point and say, “It hurts here”, we will not be able to see where you have pointed when we later read the deposition transcript. Also, you should describe pain with specific descriptions like stabbing, shooting pain or throbbing pain, etc. A good rule to follow in order to remember all of your problems is to start at your head and, in detail, go down through all of the parts of your body moving from your head, neck, shoulders, etc.
• Please do not use the words “I can’t.” This means you can NEVER do this activity no matter what the circumstances. For example, someone may testify they “can’t” pick up their child anymore. Later, they will be shown a surveillance video where they are picking up and holding their child. This is a direct contradiction to what they testified to and creates the impression that they are exaggerating or lying. What was really meant is that “I can’t pick up my child like I used to be able to do” or “There are days when I hurt too bad to pick up my child.” You should also be very careful using the words “never” and “always”. These terms come back to haunt many injured workers or plaintiffs. Regarding your activities such as your housework, yard work, your work at your job, you should detail what things you are able to do and what things you are not able to do as well as before.
• Consider this an important and official occasion, and avoid “getting chummy” with opposing counsel or his client. He or she is not your friend regardless of how friendly they appear.

How can I be an effective witness for my case?

• Be respectful. Just tell the truth with simple short answers. Use “Yes sir” and “No sir” and “Thank you” and “Please.”
• Never argue or lose your temper–leave your temper at home! When you are mad, you do not think clearly about your answers.
• Speak slowly and clearly. Answer verbally. Don’t shake your head yes or no–the court reporter must be able to understand you. .Wait until the complete question is asked before you begin your answer so there is not overlap between your voice and the attorney’s voice.
• If you don’t understand the question, ask that it be explained. If you don’t, the other attorney will be able to assume that you have understood the question, and you may be giving wrong information.
• Never volunteer any information. Wait until the question is asked– answer it and stop. If you can answer “yes” or “no,” do so and stop. Explain your answer if necessary, but don’t give in to the urge to make speeches.
• Injuries. The above rule does not apply to your injuries. Volunteer answers on injuries about any information helpful to your case, but do not exaggerate your injuries or losses. Again, start at the top of your head and go to your toes so you will not forget any of your injuries.
• Be conservative with respect to a description of your injuries. Adopt an unexaggerated attitude toward your injuries.
• Stick to the facts, and testify to only that which you personally know.
• Testify only to “basic facts” and do not attempt to give opinions or estimates of time and distance unless you have good reason for knowing such matters.
• Tell the truth about the activities that you have been engaged in since the accident, such as sports, work, going to the movies, etc. However, if these caused you discomfort and pain, be sure to tell that as well.
• Prior injuries. If you have had any injuries before this accident, be sure to tell the truth. Try to remember every previous accident or injury, including those you consider minor or unimportant, such as sports injuries or childhood accidents. Not telling everything at this point could mean your case will be lost.
• Estimates of time and distance. Unless you know the precise and exact measurements, avoid speaking in terms of specific distances or times. It is better to compare the time or distances to some object which you are more familiar with such as car lengths, city blocks, etc. You should be sure about this information before your deposition. A good way to recreate an accurate estimate of time is to use a watch or stop watch. When refreshing your memory as to distance, try to go to the scene of the occurrence and walk the distances off, or use some instrument such as your car’s odometer to measure the distance Whichever method you choose is better than relying on your unrefreshed memory.
• If you don’t know the answer to a question, admit it. Some witnesses think they should have an answer for every question asked. You cannot know all the facts, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted. It is important that you be honest and straightforward in your testimony.
• Don’t try to memorize your story. Justice requires only that a witness tell his story to the best of his ability.
• Take your time. Give the questions and your answers as much thought as is necessary to answer the questions honestly.
• Don’t guess. If you know, say so, but don’t guess… However, you will not be allowed to answer every question with “I don’t know.”
• Previous testimony or statements. If you have testified previously on this matter or given a previous statement, your best answer is that “if it’s written there, then I must have said it.” This may not be accurate, however, and you will have an opportunity to explain what you meant and why it’s not accurate.
• Don’t say ”That’s all I know.” Later from your notes or from memory you may
  remember something else, so it is better to say ”That’s all I recall at this moment.”

How often do I have to have my deposition taken? Usually, your deposition is taken only once. However, if your case goes on for more than one year, then you may be asked to give an update deposition. Following the above suggestions will help you be a better witness for yourself.