Personal Injury

Preparing For A Personal Injury Deposition

By David Goguen, J.D., University of San Francisco School of Law | Reviewed by David Goguen, J.D., University of San Francisco School of Law
Your personal injury deposition is on the calendar. Here's what you need to know to ensure that you're as prepared as possible, and that you help (not hurt) your case.

If you're filing a personal injury lawsuit, you'll almost certainly need to have your deposition taken. This process (and your testimony) can play a crucial part in the outcome of your personal injury case, so it’s important to know what to expect and to make sure you’re well prepared.

What is a Deposition?

A deposition is a question-answer session where an attorney interviews a party or witness under oath. Depositions are an important part of the pre-trial discovery process. The answers are recorded by a court reporter, and the information that is gleaned helps both sides of the case prepare for a possible settlement or for trial. A deponent's answers at a deposition can also be used to challenge any later inconsistent testimony at trial. (Learn more about whose deposition is taken in a personal injury case.)

Getting Started

The deponent is sworn in by the court reporter at the beginning of the deposition. It is important to remember that this oath to tell the truth is the same oath that is taken by a witness at trial. The court reporter takes down the testimony, and a transcript is prepared afterward. (Some depositions are videotaped.) In some circumstances, deposition testimony can be admissible at trial.

Question and Answer

The purpose of a deposition is to learn what the deponent knows about the case and to determine how he or she will testify at trial. The examining attorney begins with background questions, such as name, address, date of birth, employment background, and whether the deponent has ever given testimony before.

The plaintiff and defendant in a personal injury case can also expect questions regarding:

  • past and current injuries and related medical treatment
  • financial standing (e.g., current debts owed)
  • the incident that gave rise to the lawsuit (how it happened, what was seen, when, where, and who was present)
  • who the deponent has spoken to about the incident
  • the deponent's criminal history and driving record (this is usually limited to convictions, not arrests)

(Learn more about common questions at a personal injury deposition.)

After the examining attorney has completed the questioning, the remaining attorneys in the room can examine the deponent as well, including the deponent's own attorney. These are usually follow-up questions or points of clarification.

Depositions can take as little as 30 minutes, or as long as several hours. In larger cases, depositions can take place over several days, or be split up over the course of weeks. Sometimes, a deponent can be called back for additional questioning later on in the case. This all depends on how much information the deponent has to give and how many attorneys will be questioning the deponent.

Tips for Your Deposition

Make a good impression. Dress well and be well-groomed. One thing the attorney asking the questions is trying to determine is how likeable or truthful you'll appear to a judge or jury.

Speak up. Talk clearly and answer out loud so the court reporter can record you answers.

Be professional. Remember that a deposition follows a question and answer format. It's not a casual conversation. Don't make small talk or jokes. These often don't come across well in the written transcript.

Take your time. Listen to the complete question before you begin to answer. It’s always a good idea to pause before answering. This gives you a chance to strategically form a response, and it gives your attorney time to make an objection if one is needed.

Break time. Ask for a break from the proceedings if you need one, even if it's just for a few minutes. Stretching your legs or getting some fresh air helps you stay alert. But be careful about what you say "off the record" during breaks. You may be asked about things you say when you are later back “on the record."

Be polite. Don't argue with the attorney asking the questions. It's your lawyer's job to object to harassing or improper questions.

Avoid the guessing game. Don't be afraid to say "I don’t remember," "I don’t know," or "I don't understand the question." If you have to guess or estimate, preface this by saying "I'm guessing" or "I'm estimating."

Keep it short. Give brief, accurate answers, such as "Yes," "No," or “I don’t know.” Don’t volunteer any information. Just answer the question that is asked. If you don't know the answer to a question, don't try to help by suggesting where the answer could be found. If you're asked to list things or give a detailed explanation, answer as best you can, and end your answer with "that’s all I can think of right now." Then, if you remember more later, you can add to your answer without appearing deceptive.

Where does it hurt? Be prepared to describe your injuries. Is your pain, constant, sharp, dull, or achy? Rate your pain on a scale of 1 to 10. Don't exaggerate your injuries, but don't minimize them either.

Tell the truth. This is obviously critical. You’ll be asked the same questions several times during your case, and any inconsistencies will come back to hurt you.

Your personal injury attorney will meet with you before the deposition to help you prepare. Often the deposition takes place a fair amount of time after the underlying accident or incident occurred. So, your attorney might review case documents with you to help refresh your memory. Let your attorney know if you feel nervous about being questioned. Your attorney can practice asking you questions until you feel comfortable with the process.

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