In the world of personal injury, an actual lawsuit is not filed in every case. In some circumstances, a case will settle in the “pre-suit” or “pre-litigation” phase after negotiations occur with an insurance company. However, due to the increasing willingness of insurance companies to lowball those who are injured and defend personal injury cases, we as attorneys are having to file more lawsuits on behalf of our clients to rectify the injustice. When pre-suit negotiations reach an impasse and a lawsuit is then filed, I schedule another meeting with the client to provide an overview of the litigation process. In doing so, I spend time with the client going over what to expect during his or her deposition.
WHAT IS A DEPOSITION?
A deposition is merely testimony taken orally with an attorney asking questions and the deponent (the person being examined) answering the questions under oath with a court reporter (or stenographer) recording the testimony in order to create a written transcript.
WHEN DOES A DEPOSITION OCCUR?
Depositions of the plaintiff, defendant, and pertinent witnesses in the case are taken during the normal course of “discovery,” i.e., the process by which the parties gather and exchange information about the case. By rule, after commencement of the action (the filing of the complaint in the circuit court of proper jurisdiction) any party may take the testimony of any person, including a party, by deposition upon oral examination. See Florida Rule of Civil Procedure 1.380.
SCOPE OF DISCOVERY
It’s important to remember that the “scope of discovery” (the extent of the information that the defense is allowed to inquire into and learn about in order to defend your case) is quite broad. In general, “parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. . . .” Fla. Rule Civ. Pro. 1.280(b)(1). The term “relevant” in this context has been construed liberally to mean that evidence will be considered relevant if it appears, “reasonably calculated to lead to the discovery of admissible evidence.” In essence, unless the defense attorney is inquiring into privileged matters, he or she is most likely permitted to question you into matters that you may think are irrelevant to your case.
TYPES OF QUESTIONS TO EXPECT IN A DEPOSITION
In a personal injury motor vehicle collision case, the types of questions posed by the defense attorney generally follow the same basic format. So what can you expect to be asked as a plaintiff in a personal injury action?
First off, you will be asked an assortment of background questions. This includes generic “name, date of birth, address, marital status” types of questions. Your educational background and employment history are also usually inquired into in varying degrees of detail. You will also be asked about any prior felony convictions and whether you’ve been convicted of crimes involving dishonesty.
Many people feel these types of background questions—especially those involving information regarding family members and children—are invasive and irrelevant to the collision or incident they were involved in and therefore irrelevant. While these feelings are understandable, it is important to remember that once you file a lawsuit, you open yourself up to the defendant obtaining this type of information about you because the scope of discovery in Florida is broad.
Past medical history
Your past medical history is also significant and depending on the extent of the treatment you’ve received for injuries or medical conditions prior to your motor vehicle collision, this portion of the deposition can be lengthy.
The incident itself
As expected, you will then be asked about the facts and circumstances surrounding your motor vehicle collision (or other incident that lead to your injuries) in detail. Being descriptive in answering questions during this part of the deposition is crucial in illustrating the magnitude of the event that has precipitated the filing of your lawsuit.
Medical Treatment Following the Incident
Questions that follow generally center on the injuries you’ve sustained as a result of your collision or other personal injuries and the treatment you’ve received. These questions are generally followed by inquiries regarding the effects that the injuries have had on your life. This can come in the form of questions pertaining to whether there are activities that you can no longer perform as a result of the collision and whether there are activities that you are now limited in doing.
TIPS FOR GIVING A DEPOSITION
Less is More
The golden rule for giving a deposition has always been “less is more.” Of course, it is natural to be a little nervous prior to your deposition and some of us tend to talk quickly or ramble on when nervous. Recognizing this natural tendency and coaching yourself to overcome this habit will help your deposition go smoothly. Indeed, answering “yes” or “no” when appropriate is your best course of action.
Listen carefully to the question before answering
This advice seems intuitive, but during a deposition when nerves may be acting up, it is easy to hurry an answer without taking the time to really process the question being asked. Any defense attorney will advise you that if you as the deponent answer the question as the question is phrased, it is assumed you have understood the question. Accordingly, I always tell clients that if they are confused in anyway about a question, they need to stop and ask for clarification before proceeding.
Be Truthful & Do Not Guess
A deposition is sworn testimony given under oath. At the commencement of the deposition, the court reporter will “swear in” the deponent by having the deponent agree that the testimony he/she is giving will be truthful. Being truthful in a deposition is pretty straightforward. What can be more complicated is when you are asked a question that you are not quite 100% sure of the answer and therefore you guess. While guessing at an answer is perfectly acceptable in our daily lives, if you guess at an answer in a deposition problems may arise. If you find yourself guessing as to an answer and facts later come to light that indicate your answer is incorrect, the defense attorney may attempt to argue that you failed to testify truthfully and question your character for veracity. Accordingly, the phrase “I don’t recall” and “I don’t know” are perfectly acceptable answers. Remember, a deposition is not a memory test and you cannot be faulted for not being able to recall every detail of your past.
Although giving a deposition may seem like an intimidating process, sitting down with an attorney and being thoroughly prepared beforehand can make all the difference. At Sibley Dolman Gipe Accident Injury Lawyers, PA, we meet with clients several times prior to the scheduling of his/her deposition to go over the process and answer any questions one may have. For more information call 727-451-6900.
Sibley Dolman Gipe Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765