During the course of most car accident cases, if a personal injury lawsuit has been filed, a process known as "discovery" will take place. This is the opportunity for both sides of the case to assess one another's positions (and their own) and gather evidence to be used at trial. Especially from the defendant’s point of view, one of the most important steps in the discovery phase is the plaintiff's deposition.
The plaintiff's deposition lets the defendant explore the factual basis for the lawsuit. It’s also a chance for the defendant to hope the plaintiff makes a mistake, on the record and under oath. If you're the plaintiff, you cannot win the case during the deposition, but it’s possible for you to lose it, for all intents and purposes. So it's important to take the deposition seriously and be fully prepared. With that in mind, here's a list of five things to keep in mind before and during your car accident deposition.
1. Say as Little as Possible
As the plaintiff in a car accident lawsuit, you must attend at least one deposition. You might want to avoid it, but short of some extremely extenuating circumstances, you won’t be able to.
During the deposition, the defendant’s attorney (who represents the other driver, or the other driver's car insurance company) will ask you a series of questions that will probably take several hours to get through.
Remember that the defendant’s attorney is trying to get as much information as possible when it comes to issues like fault for the car accident and the extent of your injuries. So, one of your goals should be to provide as few details as possible while still answering the questions asked of you. If you offer more information than is required, you’re only helping the other side.
This is not to suggest that you refuse to answer a question (you can refuse in certain situations, but that’s for your attorney to determine) or knowingly withhold factual information. Simply answer the question asked, and don't volunteer information that wasn't requested.
It's important to fight the urge to "tell your side of the story." It can be very tempting, but providing additional information during a deposition usually won’t help your case. If there is any information you feel the defendant’s attorney needs to know, you can always provide it later, when your attorney asks you follow-up questions during the deposition, or when you’re supplementing or amending your responses to other discovery requests.
2. Come Prepared
Ideally you’ll have a car accident attorney help you prepare for your deposition. Either way, you’ll need to review relevant documents like the police report, your medical records, and anything else that will refresh your memory of what happened. Also, before your deposition, your attorney will already have responded to the defendant’s requests for the production of documents and interrogatories. You’ll need to make sure you review the answers you've already provided and the documents you've already produced so that whatever testimony you give during your deposition is consistent with the information the defendant’s attorney already has.
Be ready to answer questions concerning your personal background, your medical history, information about the accident, injuries you claim the accident caused, and medical treatment you’ve received since the accident.
Finally, despite all your preparation, it's inevitable that the defendant’s attorney will ask you a question or two that you can't answer. It’s okay to say you don’t know. What you don't want to do is speculate or guess.
3. Know That The Defendant Wants to Lock You into a Specific Set of Facts
The defendant's team wants to pin you down to one version of your "story" when it comes to how the accident happened and what your damages are. Having more than one "story" can damage your credibility. For example, if during your deposition you say that you were driving about 35 miles per hour right before the accident, and during trial you say you were driving around 25, the defendant’s attorney will portray you as someone who has a very unreliable memory (at best) or someone who has just committed perjury (at worst).
4. Remember That the Defendant’s Attorney Is Recording More Than Your Answers
Trial attorneys will tell you that most communication is nonverbal, so the defendant’s attorney will be watching you, in addition to listening to you. Part of what the attorney will be looking at is your temperament, likability, and how believable you appear to be. If you don’t come across as believable or likable, the defendant’s attorney will take note and factor that into his or her analysis of the strength of your case (juries award more compensation to a likable plaintiff).
5. Be Ready for the Defendant’s Attorney to Go Fishing
There is a lot of information the defendant’s attorney will not know. So, it’s normal for some questions to seem like they’re completely random.
For instance, if you’re claiming the car accident caused certain injuries, one argument the defendant may make is that your claimed injuries are really preexisting injuries that were simply aggravated by the car accident. Therefore, the defendant’s attorney is likely to ask you about earlier injuries and physical problems you may have suffered. You may not feel it’s related to the car accident, but you may still need to answer these questions. If the questions are not appropriate, your attorney will make an objection.
Learn more about depositions in car accident cases.