Five Do’s and Five Don’ts for Your Car Accident Deposition

Your deposition can be a key to the success (or failure) of your car accident lawsuit. Here are five do’s and don’ts that will help you do a good job.

By , J.D., Villanova University School of Law
Updated by Dan Ray, Attorney · University of Missouri–Kansas City School of Law

After you file a car accident lawsuit, a process called "discovery" will begin. As the name suggests, discovery gives each party a chance to find out about the facts and evidence the other side plans to rely on if the case goes to trial. Depositions—oral questioning of parties and witnesses under oath—are a critical part of discovery.

There's a lot riding on the depositions of both the plaintiff (the party who files the lawsuit) and the defendant (the party who's being sued). You're not going to win the case in your deposition, but you can go a long way toward losing it if you perform poorly. With that in mind, here are five do's and five don'ts to remember as you prepare for and attend your car accident deposition.

(Learn more about the steps in a personal injury case, and what to expect at each step along the way.)

Five Things to Do

As the plaintiff or the defendant in a car accident lawsuit, you must attend a deposition. During your deposition, you'll spend several hours (with breaks, of course) answering questions under oath. Your lawyer will be there, along with a court reporter who will make a transcript of the deposition. The other side's lawyer will ask you questions.

Make sure to get plenty of rest the night before you're deposed. Stay away from alcohol and other substances that might leave you groggy or hung over the next day. If you're sick, ask your lawyer to postpone the deposition. It's tough enough to maintain your composure under stress when you're well. When you're ill, you'll be more prone to make mistakes.

Here are five important things you should do.

1. Prepare, Prepare, and Prepare

And when you think you're done preparing, prepare some more. You'll spend lots of time with your lawyer and on your own getting ready to answer questions. Your preparation should focus on two things:

Practicing Your Answers

Your lawyer likely will spend several hours, probably over many days, reviewing questions you can expect to be asked during your deposition. This exercise serves at least two important purposes. First, hearing the questions ahead of time will help you avoid being surprised in the deposition. Second, you'll have plenty of chances to practice your answers.

There's nothing wrong with preparing and practicing your answers this way. It's a common and expected practice, and you'd be foolish not to do it.

Reviewing Documents

Both the plaintiff and the defendant will need to review their interrogatory answers, photos and videos of the accident scene, witness statements, the police report, any notes they made, and other documents that are relevant to the case. The plaintiff will also need to review all medical records relating to care and treatment they received for injuries suffered in the wreck.

2. Get a Lawyer If You Don't Have One

If you don't have a lawyer, you should think—long and hard—about getting one. Odds are you've never been through a deposition before. And even if you have, you still need experienced legal counsel at your side. Without that help, to put it simply, you're in over your head. And you needlessly increase the chances of making a mistake that will cost you down the road.

3. Remember That You Control the Pace of the Deposition

It's tempting to think that the lawyer who's questioning you controls the timing and pace of the deposition. Not so. Remember: As the party being deposed, you control the pace of the deposition. This can be a useful tool, as it can keep the lawyer from getting into a questioning rhythm that makes you uncomfortable.

Listen to each question carefully and make sure you understand what you're being asked. If you need some time to think about the question and your answer, that's fine. You don't get extra points for answering quickly. If you don't understand a question, ask the lawyer to rephrase it or ask it a different way. Your lawyer can help if you need it.

4. Tell the Truth

The cardinal rule throughout the lawsuit and in your deposition is: Tell the truth. Always. Even if you think it might hurt your case. It's your lawyer's job to figure out how to deal with truthful answers that might hurt your claims or defenses. The solution isn't to withhold information or lie.

Keep in mind, too, that you'll be under oath during your deposition. Lying under oath is called perjury, and it's a crime. You won't end up in jail if you lie during your deposition, but you can expect to have a very angry judge who might hit you with sanctions—penalties that can include, for example, monetary fines, dismissal of claims or defenses, and more.

5. Follow Your Lawyer's Instructions

Your attorney has been through depositions—lots of them—and knows what's allowed and what's not. When your lawyer starts talking, you stop, and don't start talking again until your lawyer tells you to. Do as instructed when your attorney tells you to answer (or not answer) a question.

Five Things You Don't Want to Do

The goal of your deposition isn't to help your case. It's to avoid doing anything that will hurt your case. The other side's goal is simple: Get as much damaging information about you and your claims as possible. The more you say, the greater the odds that you give them that information.

Here are five things you don't want to do.

1. Don't Volunteer Information

Answer each question truthfully and completely, then stop talking. Don't volunteer information, and don't answer questions that you weren't asked. Don't try to embellish your answers to make them sound better.

If the question is "Did you have your seatbelt on?" the answer to that question is either "Yes" or "No." The answer isn't "Yes, but I had to adjust it so it wouldn't wrinkle my slacks." You've just volunteered information. Worse yet, you've given the lawyer potential ammunition with which to attack you. That attack probably won't come during your deposition. It'll happen during trial on cross-examination, in front of a jury, where it can do the most damage.

2. Don't Speculate or Guess

If you don't know the answer to a question, say so. "I don't know" or "I don't recall" are both acceptable answers, as long as they're true. Don't speculate or guess—it can come back to bite you later.

On a related note, avoid answering vague or ambiguous questions. Suppose, for example, that you're asked "Was it cold outside that morning?" That seems like a reasonable question, the kind of thing we chat with others about every day. The problem is that "cold" is a vague and ambiguous term.

Consider asking the lawyer to clarify: "I'm not sure what you mean by cold. Can you please clarify that?" or "What do you mean by ‘cold'?" Whenever possible, try to stick to verifiable facts. "What was the temperature outside that morning?" is fine, as is "Did you wear a coat that morning when you left your home?"

3. Don't Argue

Getting baited into an argument is one of the oldest tricks in the deposition playbook. Don't fall for it. If there's any arguing to be done with the other lawyer, let your lawyer handle it.

Here's why arguing with your opponent's lawyer is a bad idea. First, you're arguing with a lawyer—someone who's trained to argue and who argues for a living—so it won't be a fair fight. Second, the lawyer wants to goad you into losing your cool, knowing that you're more likely to say things that will hurt your case if you lose your temper.

4. Don't Try to Tell Your Story

You want to tell your story, and that's understandable. But a deposition isn't your chance to tell it. That will come later—if necessary—in a trial.

The opposing lawyer will ask you open-ended questions that invite you to give long, rambling answers. It's human nature to want to vent your feelings but resist that temptation. It's a trap. If you take the bait, don't be upset when your lawyer cuts you off and tells you to stop talking. That's your lawyer's job.

5. Don't Forget What You've Said Before

You'll be asked about statements you've previously made about the accident, your injuries, the treatment you've received, and your damages. But here's the problem: You might not be told that you're being asked about your prior statements. The opposing lawyer hopes to catch you saying something that's inconsistent with what you said before.

It's your job to be familiar with things you said about the case before your deposition. You'll find your prior statements in the police report, your medical records, your interrogatory answers, and any other statements you might have made (like to insurance adjusters or others). Review these statements—several times—before you sit for your deposition.

Get More Help From Your Lawyer

For most people, a deposition is an intimidating experience. Nothing that anyone can say or do will put you completely at ease. The best antidote for nerves and jitters is thorough, repeated preparation. Don't be shy about asking your lawyer to spend time with you helping you prepare. After all, it's their job.

If you don't have a lawyer, you should get one well in advance of your deposition. When you're ready to take that step, here's how to find a lawyer who's right for you and your case.

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