If you have filed a lawsuit in a personal injury case, you will likely have your deposition taken by the insurance defense lawyer. Depositions are taken after initial discovery is completed. The initial discovery consists of the exchange of documents and answers to written questions called interrogatories. Depositions can be in person or over zoom.
What Is a Deposition in a Personal Injury Case?
A deposition is simply a defense lawyer asking you questions under oath. Although the defense lawyer technically represents the defendant, he or she is paid by the insurance company. If that defense lawyer wants to keep being hired by the insurance company, he or she must try to poke holes in your case. A deposition is basically the defense lawyer’s chance to investigate the case for the insurance company. After the deposition, the defense lawyer will report back to the insurance adjuster with an analysis of how you did.
What Should Your Goal Be In the Deposition?
Your goal is to be able to explain your case to the other lawyer. You want to come across as likable, honest, and sympathetic. You want to avoid the traps that the lawyer will set for you. Most importantly, you want to make the insurance lawyer worried that you will make a great witness if the case winds up going to trial.
How Long Will the Deposition Last?
I have never seen a Plaintiff’s depo last less than two hours. Expect it to go up to three hours. Answering questions while under oath takes a lot of energy, so pace yourself.
Are There Any Tips to Help Me at Deposition?
Yes. Be short with your answers until you get to the parts that you need to hammer. When it comes to the “money” areas, such as how the accident occurred and how the accident has affected you, be ready to knock them out of the park. Otherwise, listen to the question and only answer the question asked. I have found that many of my clients like to keep talking even after they give an answer. There is something in human nature that makes people want to fill in the dead air with words. My best advice is to answer the question and stop talking! I cannot tell you how many traps that my clients walk into when they get too chatty.
Another tip is to not get annoyed. Some lawyers are very young. Some do not listen to your answers. Some ask neverending annoying questions. But, since you are being judged at how you react, try to keep your cool. Be the bigger person.
My final tip is to keep your energy levels up. A lot of the important areas are toward the end of the deposition. I notice that a lot of my clients start to get tired and their answers suffer. You are allowed to take breaks, so take 2 minutes here and there to get your bearings. Even though you might want to power through and just get it over with, two minutes to get rested can really help.
What Are the Goals of the Defense Lawyer in the Deposition?
Since defense lawyers take dozens of depositions of plaintiffs every year, they are very skilled at probing areas of the case that they can use to their advantage in the future. One of their biggest strategies is to try and blame your injuries on something other than the personal injury lawsuit. This is their #1 trap, so always be aware. Keep in mind that the defense lawyer already has reviewed all of your medical records, the crash report, and your written answers (interrogatories) in advance. Despite their knowledge of the case, every question is a test of your memory and of your ability to articulate the case in front of a jury. The questions are not tough if you are prepared. As long as you tell the truth, you will do fine.
Since defense lawyers take so many depositions, they go off a script. This script varies slightly from lawyer to lawyer, but they all hit on certain main areas; the accident, your treatment, and how the injury affects you.
I have summarized below many of the common questions that I hear defense lawyers asking at personal injury depositions of my clients in an auto accident or personal injury cases. Please study this list and be prepared.
Should I review anything prior to my deposition?
You might be asked if you have reviewed anything prior to your deposition. You might be asked if you met with your lawyer, how long, and when. You might even be asked if you spoke to anyone else about your deposition. But, I recommend to my clients that they review the accident report, their answers to interrogatories, and what their medical bills are. It is important that you make sure that your answers to interrogatories are correct. If they are not, you need to be ready to answer why they are not. I often find mistakes in the answers to interrogatories at the deposition, so please be careful of this. The lawyer might ask you a blanket question such as, “are the answers you gave in the interrogatories true and correct?” Don’t say yes unless you are sure. There is nothing wrong with saying that you tried your best to be accurate, but that you will let the lawyer know if you see something that is wrong.
Make sure that you bring your driver’s license with you. Questions will include: Your address; where you live currently and where you’ve lived for the past 10 or so years; who you live(d) with; marital status; family; DOB. Your social security number will be taken off record so that they can do a background search on you.
Your job history is a big deal, especially if you are claiming any lost wages. They will ask about where you worked, what you did, and your rate of pay.
You will be asked if you had any work related accidents or ever filed a Worker’s Compensation claim.
Keep in mind that for a lot of jobs that require manual labor, the defense lawyer will be setting you up to blame your injuries on physical wear and tear. This can apply to any job, but house cleaning, construction, or anything that requires lifting or repeated movement can be a target. Be aware that this is a major area of probing, so don’t take the bait!
I don’t have a good name for this category, but it is basically a way for the defense lawyer to probe for other injuries or wear and tear to your body.
You will be asked about your history of athletics, sports or gym memberships. This is done in an attempt to blame your physical activity for the injury or, if you still go to the gym or play sports, to discount how bad you were really hurt. If you are still going to the gym, never admit that you are lifting heavy weights. Most people only go to the gym to conduct home stretching and exercises as recommended by their doctor. Use common sense here!
You will be asked about your prior criminal history although the only things that are admissible in the case are prior convictions for felonies or crimes of dishonesty or false statement (petit theft, retail theft). But, you still may be asked for every time you were arrested. This can be embarrassing, but your answers must be truthful. You probably know if you were convicted of a felony, but if you have any other questions, just ask me. DUIs, domestic battery charges, disorderly conduct charges and the like aren’t admissible in the case, but you still need to answer accurately.
Had you consumed alcohol or medication before the accident or within the 24 hours prior? Again, the goal of these questions is to blame you and the medication for poor reaction time or balance.
What Was the Speed Limit and How Fast Were You Traveling?
The details of the accident will be asked in detail. Where were you coming from, where were you going? They will always ask you in a car accident case when the first time you saw the other car. If you say you never saw the other vehicle, they will argue you weren’t paying attention.
You will be asked about the steps you took to avoid the collision. They will ask you to describe how hard the impact was to the vehicle you were in, which direction your body moved after impact, and whether your body impacted any part of the interior of the car. Of course, you will be asked if you were wearing a seatbelt.
You also will be asked your cell phone number and your cell phone provider. They will ask you if you were on the phone at the time of the accident. They can subpoena your cell phone records, so make sure that your answer is accurate.
Whether you spoke to the other driver or any other witnesses at the scene? Again, they are looking to see if their client made any admissions of fault. Who called the police or if no call was made, why not?
- Did the paramedics come to the scene?
- Was treatment given or refused?
- Did you go to the hospital immediately?
- If not, why not?
You will be asked specific questions about your injuries. The first questions will be about when you first felt pain. Remember, they have your hospital records and/or the records from the first time you went to see a doctor. Make sure that your answers at deposition match what you said to the doctor during that first visit. They will ask you, body part by body part, about whether you sustained an injury compared to the medical records in an effort to get you to forget or not mention an injury. If you miss an injury, they will argue either you were lying or it wasn’t that serious.
You will be asked what doctors you saw (by name) and who referred you to that doctor. You will also be asked how many times you went to see the doctor and whether you followed their advice.
They will want to know if you have any plans for future treatment, surgery or any appointments set? These questions are set-ups to rule out future medical costs such as injections or surgery. By answering that you have no desire to get any further treatment, the insurance company knows it is not under any pressure to resolve the case quickly and that the damages are capped.
As mentioned above, I like for my clients to know what their total medical bills were and how much they still owe. You will be asked how the medical bills were paid or, if the bills were secured by a letter of protection (LOP-another word for an IOU), how you intend to pay the bills. You need to know what an LOP is. It is a promise that you made to your doctor to pay the bills out of the settlement. If you don’t win any or enough money, you are on the hook personally to pay them. The goal of these questions is to imply that you will never pay the bills.
Also, you may be asked if you have paid any bills or have out of pocket expenses. You might be asked if you have received any bills. Please answer that question by stating that your lawyer handles the bills. If you have out of pocket expenses, make sure you mention them. They are usually co-pays or medication expenses. For example, if you had to Uber to appointments, we can recover those expenses too.
They will ask about every prior accident or injury you’ve had. Some of the questions can be very probing. You might be asked if you’ve ridden skateboards or dirt bikes as a kid. If so, they will ask if you ever crashed. If you’ve ridden a horse, they will ask if you’ve ever fallen off it. These questions are all a set-up to try and pass the blame. My advice is to not volunteer any of this information. If you haven’t been to a hospital, they likely don’t know about it, so be smart.
If you were injured in an auto accident and received medical treatment, the insurance companies are good about sharing a database of that information, so be truthful. But, they likely won’t have much information about the accident itself, especially if it is old. When it comes to any prior accident, please don’t embellish how horrific the accident was. You will just be handing them a strong defense on a silver platter. Make sure that you mention that after the accident you fully healed and had no problems until this accident occurred.
You will also be asked about prior surgeries. Since surgeries can be tracked through hospitals, the medical records can be tracked. Again, there is no need to embellish how serious the accident or situation was.
Prior Medical Care:
Some insurance lawyers ask about every time you’ve sought emergency medical care, even if it is for the flu! These questions about prior accidents can be in depth. You will be asked who your primary care doctor is and any other treating doctor for the last several years. Again, the purpose of these questions is to send a request for documents to that doctor in the hopes that the doctor will have noted somewhere that you’ve experienced pain or an injury to the same part of the body that you are claiming was injured in the accident at hand.
For women, you will be asked if you’ve seen an OBGYN. Many women use this doctor as their primary doctor. Expect that after the deposition, they will subpoena those records.
The insurance lawyer will normally go down the list of your injuries. They will go from head to toe and ask you what was hurt. For example, they will start with your head and end with your feet. They will ask whether you have had any prior injuries to that area. You will be asked about what type of pain you are currently experiencing. Some lawyers even ask you to estimate on a scale from 1 to 10 about how bad the pain is as you sit there. They will also ask to describe how often you have pain in that area and for how long. They will ask you to rate the pain when it’s at its worst.
How the Accident Has Affected You:
These are the money questions! You will be asked in every deposition two main questions about how your life has changed: (1) What types of activities are you limited in or cause you pain to perform; and (2) What activities can you no longer do? Have these answers lined up and really sell them. You should have a list of each prepared in your head. For example, maybe you can do household chores, but they cause you pain. Maybe, you can walk, but only for short distances, etc. Maybe you can no longer sleep through the night. Can no longer lift anything heavy, cannot turn your head all the way to one side, etc. Brainstorm these in advance and when you hear the question, fire away.
You will be asked if you have traveled since the accident. You also will be asked if you have plans to travel. The point of these questions is to show that you can ride for long distances and/or that your quality of life has not been affected. In order to combat these, make sure you mention if you had to stop frequently or make any other accommodations for your comfort.
Some lawyers will ask for any of your social media accounts. They will look at these accounts to see any public pictures you have posted or were tagged in. Again, the goal is to show you having a good time or doing activities that contradict your claim. Make sure that you have all of your social media settings private before the depo.
This list is not exhaustive, but the better prepared you are for your deposition, the better you will do. This means the better the report you will get sent back to the insurance adjuster. The work that you do to prepare for your deposition always leads to a higher value being placed on your case. It can speed up the settlement process and put more money in your pocket.