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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.

10 Things Your Insurance Company Doesn’t Want You to Know.

Whether you will recover damages from an insurance company and how much you will recover often depends on your knowledge of your policy and how the insurance company administers your insurance claim.

Knowing these 10 principles will help you to take on your insurance company and maximize your claim.

1. An insurance company must act in utmost good faith in their dealings with a policy holder.

An insurance company cannot cause an unreasonable delay in settling your claim or put its financial interests ahead of yours. They cannot lowball your claim by paying less than its true value. Insurance companies cannot use deceptive tactics or trickery in sales or claims handling. In essence the insurance company must treat you fairly. If they don’t, they have breached their duty of good faith which the law imposes on insurance companies. It exposes the carrier to potentially significant damages.

2. If an insurance company breaches its duty or treats you unfairly they may be compelled to pay your attorney fees.

So your insurance company has unreasonably denied your claim or delayed settling it and you have had to hire an attorney to make them treat you fairly. Your attorney will go after them and force them to pay your attorney fees.

3. Your insurance agent misrepresented your policy coverages or other material fact or detail regarding your policy, the insurance company can be forced to honor what your agent had told you.

Insurance agents have been know to misrepresent exactly what a policy covers, the limits of coverage, the effective date of coverage and many other aspects of insurance policies. Sometimes this is intentional on the part of the agent. They exaggerate policy coverages or the benefits of the policy to make a sale. Other times, the misrepresentation is inadvertent. It can be caused by the agent being confused about which policy he/she is selling or that the agent is not familiar with the product or due to a change in policy that the agent was unaware of. In any event, in most cases, the insurance company is responsible for the representations that the agent makes. Your attorney may be able to compel the insurance company to honor the representations of agent.

4. If your insurance coverage is not sufficient to cover your injuries because your agent recommended a lesser amount of coverage, the insurance company may be forced to pay.

It is always a good idea to take notes when dealing with your insurance agent and to keep those notes in a file with your policy. You may also choose to communicate by email with him or her so that their is less deniability in what they recommended. Sometimes when you are shopping around for less expensive coverage, your current agent may recommend that you reduce your coverage amount to save on the premium. This is a tactic used to keep your business with a lower premium but it may not be in your best interest if the coverage is insufficient to cover your loss or medical expenses. If this occurs, your lawyer may force the insurance company to pay an amount that is sufficient to make you whole again.

5. Anything that is ambiguous in your policy must be resolved in your favor.

Anyone who has ever read an insurance policy knows it is pages and pages of legal terminology and rhetoric. It is often difficult for even attorneys to understand what it covers and what is excluded from coverage. Often times insurance companies will leave wiggle room in the policy that is not clear to anyone as to the coverage and limitations of a policy. These ambiguities will often be used by the insurance company to deny claims but, if you know the law, you can call the insurance company on this little trick of theirs and insist that the claim be resolved in your favor based on the ambiguous language of the policy. You will likely need to consult with an attorney to take on this issue with your insurance company.

6. The insurance company demonstrate why a claim is not covered.

Frequently this is misunderstood by policy holders. It is not a policy holder’s duty to prove that their claim is covered by their insurance policy but, rather, it is the insurance company’s duty to either pay the claim or demonstrate to you why the claim is not covered by the policy. The insurance company must use the facts and evidence of the claim and their investigation of the claim and then apply that to the specific coverages of the policy. Don’t let the insurance company bully you. Provide them whatever they may ask for but if they deny your claim without proper explanation for the denial, call your attorney. He or she may be able to force the insurance company to pay.

7. Your insurance company may have a duty to defend you against lawsuits.

Every business, homeowner, auto or similar insurance policy has a liability portion of the policy that protects you from lawsuits by others. This requires your insurance company to pay your legal defense costs and fees if you are sued. Often, an insurance company will refuse to honor their duty to defend you because you have been sued for something that is not specifically covered in the policy. But, it must defend you in any situation which potentially seeks covered damages in most situations. For example, if a complaint is filed against you do not see damages within the scope of your overage but is capable of being amended or modified to include such damages, your insurer must defend. Furthermore, if the insurance company learns of facts from any source which would trigger coverage (not just the complaint itself), it must also defend you. In addition, it must defend where the policyholder has a reasonable expectation that it will do so. You will likely need to seek out the assistance of a lawyer to demand that they insurance company pay for your representation.

8. Your insurance company may unlawfully try to cancel your coverage after you have made a claim based on a misrepresentation that you may have made.

Insurance policies can be extremely complicated and they are often drafted based on information that you have provided to your agent or in a questionnaire without having all of the information you needed to properly answer the questions. If you have provided the insurance company with incorrect information, whether you did so intentionally or inadvertently, an insurance company may try to deny you claim because of this misrepresentation. Insurance agents will also modify your information or lead you to answer a question in a certain way so that you won’t be denied coverage. But, whatever the reason, if you provide false information to the insurance company they may attempt to deny your claim. A qualified lawyer can however examine your case and use the prevailing law to force the insurance company to pay your claim.

9. Punitive damages are awardable against insurance companies for unreasonably refusing to cover a claim of a policy holder.

Knowing that the insurance company must do or not do the items above, you hold a powerful weapon in your arsenal. Using the threat of punitive damages for violating your coverage rights or breaching their duty of good-faith that they owe to you, an insurance company may think twice before denying your claim. In most cases however, you will need to contact an attorney to assist you before the insurance company will take you seriously.

10. Get free advice from an attorney before it is too late.

Most attorneys will give you free advice in cases where the insurance company has acted either in bad-faith or unreasonably denied your claim. Often they will take your case against the insurance company without any out of pocket cost to you. So, it is better to get a lawyer involved in your case sooner than later. In some cases you have a limited time to take action, so call today if you are experiencing this kind of problem.

Preparing for Your Personal Injury Deposition