Work Injury

Ten Steps to Prepare for Your Personal Injury Deposition

First things first…

What is a deposition?

A deposition is a question and answer session with the other side’s attorney under oath. The defense attorney will ask you questions and you will answer. A court reporter will take down everything that is said and occasionally they will be video taped.

Why do I have to do a deposition?

A deposition is part of the discovery process in personal injury litigation. Both the defendant and plaintiff have the right to discover what facts and evidence the other party may use in their case. You, as the plaintiff, have a duty to tell the defendant what you know and what evidence you have to support your case and vise versa.

What kinds of questions will they ask?

The defense attorney in a personal injury case will typically ask the Plaintiff many questions regarding the following areas:

General background information such as name, address, date of birth, who is in your family, education, work history, etc.
Information about your physical condition before the injury occurred. For example, in a slip and fall case where you broke your left arm, the defense lawyer is going to want to know if you are left handed or right handed, and he or she will want to know if you had any problems using that arm before the accident.
Information about the accident – how did it happen? Who were the witnesses? Did you talk to anyone after the accident? What did they say?
Information about your medical treatment and physical condition after the injury occurred. For example, What injuries did you sustain in the accident? Who treated you? Did you go to the hospital? Did you see your family doctor? What did the orthopedic doctor do? How long did you have to stay home from work after your surgery?
Information about the impact of the injuries on your life. What are you no longer able to do? What are you able to do but only with difficulty?

OK, now on to the 10 things…

1. The questioning at your deposition will be similar to the questioning in court.

Legal questioning is not something that most people are accustomed to and it can make you feel under attack or cause you to be confused. The important thing is that you try to maintain control. You can control the pace of the questioning by pausing to think about your response before you respond.

2. Make your responses concise.

You paused and considered your answer but before you open your mouth, reduce your response down to the most direct and concise answer possible. Your answer should be only a sentence or two and not a 10 minute dissertation.

3. Dress to impress.

The defense is going to be sizing you up to determine what kind of witness you will make. A confident plaintiff who is dressed appropriately will appear to be a better, more credible witness than one is shorts and flip-flops.

4. Give honest and accurate answers.

It is important that your answers be honest and accurate. Do not give the defense attorney the answer you think they are looking for or exaggerate your response. Doing so will work against you and may result in you being discredited as witness.

5. Eat, drink and use the restroom.

A deposition can cause all sorts of anxiety and nervousness. One way to combat these feelings is by making sure that you are comfortable and not fatigued or doing the “pee-pee” dance. If you need water, food or restroom ask for it or ask to take a break. If you you deposition goes on for several hours and you are feeling fatigued, ask if it can be continued to the follow day or another mutually agreeable day. The important thing to remember is that if you are fatigued or uncomfortable, you are more likely to provide inaccurate answers or get tripped up by the defense attorney.

6. It is OK to say “I don’t remember”.

Never guess, not even if it seems like you should know the answer. If you are not 100% sure and confident that you are providing accurate information, the best and only answer that you give is “I don’t remember.” You cannot be forced to answer a question that you do not know, so “I don’t remember” is a perfectly acceptable response. However, if you do know the answer but you feel as though your response may damage your case, do not say “I don’t know.” You are under oath and sworn under the penalty of perjury that you will tell the truth. Lying or withholding information under oath has legal consequences that you do not want to deal with and may ruin your case.

7. Its OK to say “I don’t understand.”

No one likes to admit that they didn’t understand a question but if you don’t speak up and say “I don’t understand” you are making a big mistake. Lawyers get paid a lot of money to use big words and confusing rhetoric in an attempt to get a witness to provide contradictory statements or other responses that may be used later to make them appear unreliable as a witness or to discredit them altogether. If you don’t have a clear understanding of the question, let the defense attorney know. He or she will reword the question or give you an explanation.

8. It is not always black and white or yes and no.

The defense attorney will try to pin you down and ask question in which they ask you to provide a yes or no answer when there is no yes or no answer. You cannot be forced to answer a question either yes or no if yes or no is not the way that you would answer. If you feel as though a question needs a more elaborative response than yes or no, you provide the best answer. You attorney will support you and make sure that you are not bullied into giving a response that pins you down to yes or no.

9. Ask to see records and reports.

Defense lawyers will often refer to a report or record when asking questions but they won’t always go out of their way to show you that record or report. But, if the defense attorney refers to any document, you have the absolute right to see that document and to review it before responding. Do not assume that you know the contents of the documents in question even if you have seen them before. Ask for the document and then take your time to read through it and know the contents before you answer. Do not provide opinion, just facts to your own knowledge. If the document cannot be produced or they attorney will not give you the opportunity to review it, you simply say, “I cannot answer that question until I have had the opportunity to review the document.”

10. Don’t let medical records be your undoing.

Be aware of what is in your medical records, particularly your medical records from before the accident. If you are making a claim for low back pain and a herniated lumbar disc from a car accident, you should know whether there are any documented complaints of low back pain in your medical records in the five or ten years before the accident. Your attorney should have most or all of your medical records. Ask to review the pre-accident records and talk to your attorney about any prior, similar complaints.

How to Damage Your Personal Injury Case with Social Media

Facebook, Pinterest, Twitter, Google+ and dozens of other social media sharing sites offer us countless ways to share every moment of lives with the world. We have become so comfortable with Instagram, Snapchat and the others that we don’t think twice before posting a photo of ourselves rock climbing in Southern Utah while our attorney is in court arguing that your back injury has caused you to be permanently disabled. It may sound ridiculous but search for personal injury and social media and you will find dozens of cases where the plaintiff had their case dismissed because they posted a picture of themselves in a karate tournament, playing tennis, lifting heavy furniture or similar acts of physical prowess when they have alleged debilitating injuries in their lawsuit. Even a photo of yourself holding your child and laughing can be twisted into something that works against you especially if you are claiming that you have so much back pain that you cannot work.

Here are 10 specific ways that you can damage your personal injury case with social media.

1) Posting details about your accident.

This includes tweets but especially Instagram and Facebook. If you post pictures and details of your accident online you are inviting the insurance company to examine those posts to find defects in your case. Also, avoid chats and other forms of online communications with your friends. Not only does this open the door to other side to discredit you as a witness but also by sharing important details with people who are unrelated to your case you are turning your friends into potential witnesses. Imagine you were kidding around and said, “I am going to make millions off these losers for a couple of bumps and bruises.” Even if you were joking, written text does not translate in the same way as spoken word. That statement could damage your case and sour a jury against you.

2) Posting photos of yourself.

OK, we already mentioned this above but clearly people are not getting the message. If you have a personal injury case do not post pictures of yourself online. Let’s look at one case specific case where the plaintiff was run over on the freeway by a semi-truck while riding his motorcycle. He was seriously injured and confined to wheelchair while his broken pelvis healed. He went from very active to sitting in front of a computer posting pictures on Facebook all day. Unfortunately for him, he posted photo’s of himself doing “stunts” on his motorcycle just a couple of days before the accident. Even though when he was struck he was riding his motorcycle in a safe manner, at trial, the defense presented the photos of him performing stunts. You could see on the faces of the jury that they had turned against him. Ultimately, his award was far less than what it could have been.

3) Playing Online Video Games All Day.

If you think that online gaming is not a form of social media, you are wrong. Part of the online gaming experience is the various ways that you can interact with other people online. Chats, instant messages, profile messages and other exchanges in gaming systems on Steam and other like are just as much social media as Facebook. Your comments, posts and chats on gaming platforms is actually easier to get than comments, posts and chats on Facebook. A jury may not like the fact that you were playing video games 12 hours a day but trying to claim that you are too injured to return to your job as a bookkeeper where you only sit a computer for 8 hours per day.

4) Complaining about everything.

Perception is everything. Many counties in California are chocked full of lower income people, retirees and unemployed people right now and they frequently end up on juries. These are all fine, hard working people with good intentions. But imagine them reading post after post of you complaining about your job and how much you don’t want to go back to work, how small your house is and how you can’t wait until you get your millions in your settlement, how do you think you might be perceived by the jury? Not very well is the answer.

The Bottom line.

Take a break from social media. Pick up the phone or write a letter. There is still a possibility that those could be used against you but they tend to be a much more private form of communication that is not readily available to a defense attorney for the insurance company.