If a case is not resolved early in the litigation process, there is a very high likelihood that the plaintiff will be deposed by the insurance company’s attorney. A deposition can be a very challenging experience but having a good idea of what to expect makes the process far easier.
A deposition is a little bit like what you see on television when a witness is on the stand being cross-examined in a court room, but it is a lot less formal. The deposition is generally held in a conference room either in a lawyer’s office or at a court reporting business. On some occasions, depositions are now held by zoom or some other video conferencing service. The deposition will be recorded by a court reporter, who will type, word-for-word, everything that is said in a deposition. The deposition may also be videoed, so be ready for the camera. This means dressing comfortably, but not sloppily or offensively. A button up shirt and boots may be fine – a graphic tee and shorts not so much.
The opposing attorney will have a number of questions to ask, generally focused on your claim. For instance, in insurance litigation, the attorney will want to know about the underlying event (an accident, hail storm, disability, etc.). He will also inquire about prior health conditions (did you have preexisting back injuries) or condition of the property (did the roof previously leak). Other questions will address your interactions with the insurance company and any harm, whether related to the claim itself or the issues you have encountered (including mental and emotional distress), that has resulted from the claim and the insurer’s actions.
In Oklahoma, a lawyer can ask you just about anything, and the only allowed response is for your attorney to “object to form.” If the questions become harassing or oppressive, your attorney can shut the deposition down and take the matter up with the court. Because the opposing attorney must clearly cross the line, such measures are rarely taken.
There are a number of things to think about when you getting ready to have your deposition taken.
- Be prepared. You know that the attorney on the other side is trying to obtain information that is bad for your case. So reviewing both the good things and bad things about your case will help you make informed responses. Talk to your attorney and go over key questions and important documents with her.
- Answer audibly. Don’t say “uh-huh” or nod your head, as your response may not be reflected correctly in the record.
- Don’t interrupt questions or talk over the attorney. This makes it hard to have an accurate record and to follow other rules, such as thinking before you answer and giving your attorney time to object.
- As just mentioned, take time to think and give your attorney the chance to object after each question.
- Be sure to understand the question. If you don’t, then ask the attorney to repeat or rephrase it. Some attorneys will even start a deposition by asking you to agree that if you answer a question, you understand it. So don’t be afraid to ask.
- Listen for trick questions, or those containing incorrect information. The classic example “when did you stop beating your dog” illustrates that any answer would indicate that at some point, you did, in fact, beat your dog.
- Don’t be baited into answering yes or no when that is not the right answer. In other words, while you don’t want to volunteer unnecessary information, you also don’t want to say yes or no if it implies that you did, at some point, beat your dog.
- Also think about whether an answer can ever really be an “absolute.” In other words, you don’t want to say “I never” if there is even a slight chance you could be wrong. If you say “I’ve never been to Georgia” you may think that is the correct answer, forgetting that Atlanta is a major hub for different airlines that you may have flown.
- Compound questions can work the same way. In other words, part of it might be right and part of it might assume things that you don’t agree with. Don’t answer without ensuring that you are answering only the part that is accurate.
- Listen to your attorney. While she may only be able to “object to form,” that typically means that she believes there is something wrong with the question. Maybe the question is compound or assumes facts that are incorrect. On rare occasions, your attorney may tell you not to answer, but that will generally be limited to issues involving attorney client privileged communications.
- Don’t guess. If you don’t remember something, then that is the answer. If you aren’t sure, that is your answer.
- Don’t volunteer information. Answer only the question that is asked. Don’t get drawn into offering more than the question because there is a pause or break by the opposing attorney.
- Always tell the truth. This goes beyond just avoiding outright lies. You don’t want to exaggerate or overly deflect. No one ever wins their case at their own deposition, but they can certainly lose one. Perjury is a crime and can also destroy an otherwise great case.
- Stick with your answers, as long as they are accurate.
- If you recall an answer that you did not when initially asked, it is completely fine to revisit that question. “I don’t know” or “I don’t remember” are also acceptable answers, so long as you are being truthful.
- Relax. The deposition requires the involvement of at least two parties – you and the opposing attorney (although you should always have your attorney present as well). This means that despite how it may feel, you have just as much control over the process as the attorney asking the questions. Some questions may be uncomfortable, frustrating or simply wrong. Don’t get upset or angry, just continue to answer the best you can. Take a break. Ask the attorney to repeat the question. These options allow you to gather yourself and make a calculated response.
- Don’t try to stonewall; the opposing party is entitled to a real answer if you have one.
- Sometimes lawyers will ask questions based on a document that they have that is related to the case. For example, they may be asking you about a letter you wrote to the insurance company. Feel free to ask to see the document so that you can review it to refresh you memory and have a chance to see where the attorney is going with his or her questions.
- When a lawyer does place an exhibit in front of you, be sure to read it in its entirety. Many times, lawyers want to focus on one or two key phrases that, standing alone, might be bad for your case. But your case has gotten to a point where you are being deposed, there is a good likelihood there are other things in the document that support your case and should be referenced when the attorney is trying to obtain your admission about some specific term.
- Don’t bring any documents to the deposition. Whatever you bring, the opposing attorney can likely obtain.
- Take a break when you need one. Depositions can feel like marathons, but you are not required to answer questions non-stop. Typically, the attorneys will take a break every hour and a half or so, as well as a more lengthy break for lunch. But you have the option to take one whenever you desire, so use that opportunity as needed to collect your thoughts, get a drink or go to the restroom.
After a deposition is over, you will have the opportunity to “read and sign” your transcript. That will give you a chance to look at all the questions and answers and make sure that what you meant to say is how it was recorded. You can complete an “errata” page, which fixes any problems that you identify.
