The Plaintiff’s Deposition — Be Smart and Be Prepared

Too long, didn't read version: If you don't know an answer at your deposition, tell the truth and say you don't know. 
Clayton T. Hasbrook

Written by Clayton T. Hasbrook. Last modified on April 30, 2024

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The Plaintiff’s Deposition — Be Smart and Be PreparedYour attorney has told you that the defendant’s attorney has set your deposition (make sure the date and time are good for you — you should have been consulted about this before it was set, but if for some reason you need the date and time changed, the sooner you speak up, the easier it will be). You are nervous. You don’t know what to what to expect. You don’t want to screw it up. These feelings are natural. Take a breath and read on. By the end of this article, you should feel more comfortable with what you need to do to give a good deposition.

What the Heck is a Deposition?

Your attorney should tell you what a deposition is and what questions to expect. However, if you still don’t know, a deposition in its most basic form is a series of questions the defendant’s attorney asks you to answer under oath, which are “reasonably calculated” to lead to admissible evidence in your case. The most common places for depositions are either at your attorney’s office or a court reporter’s office — you aren’t going to court just yet. There will be no judge present.

The court reporter is hired by the person taking the deposition to create a written transcript of everything said word for word during the deposition. The court reporter is not an advocate for either side, and their only job is to administer the oath (e.g., “Do you swear to tell the truth. . .”) and write down everything you and the attorneys say during your deposition. More and more, it’s commonplace for the deposition to be videotaped.

The usual deposition setup is a conference table with you seated directly next to your attorney and opposing counsel seated across from you. The person/people you are suing have the right to be present at your deposition (though they won’t participate directly). 90+% of the time, the person/company you are suing will not be there. Please don’t read anything about whether they are there or not. Parties would want to show up at depositions for plenty of reasons. My best advice is to ignore them. There are only two people to whom you need to pay attention: your attorney and the attorney deposing you — in that order.

Can My Attorney Feed Me Answers During My Deposition?

No. If you are confused as to what a question is asking, ask the defense attorney to rephrase it. If you think your answer may involve the attorney-client privilege, you may consult your attorney about the privilege issue before answering. Your attorney cannot give you answers, even to stupid, innocuous questions. The deposition is based on your knowledge and memory, not your attorney’s.

What Should I Wear to My Deposition?What Should I Wear to My Deposition?

For most plaintiffs, I recommend dressing “business casual” but comfortable. I’ve had some clients wear a suit (which is unnecessary), but it’s whatever you think will look professional and comfortable.

The Defense Attorney Seems So Nice!The Defense Attorney Seems So Nice

While most people have been conditioned by television and movies to believe that opposing counsel will always be openly hostile to you, this hardly ever occurs in real life. The best tactic a defense attorney can use in taking your deposition is to be as nice as possible to you. Why? To get you to talk more, of course.

Expect a smile, a nice handshake, and a “nice to meet you” when you are introduced to the defense attorney. The defense attorney may even joke around a bit. Be nice and cordial back to the defense attorney, but keep repeating the following in your head once the deposition starts:

  1. This person is not my friend, and
  2. We are not having a conversation.

Number 2 is particularly crucial. A deposition can quickly start to feel like a conversation, with each side talking, occasionally laughing, and the defense attorney seeming genuinely interested in everything you say. The only problem with conversations is that people start to volunteer information, which you do not want to do in your deposition. Never forget why you are there, no matter how nice the defense attorney seems (and it may be genuine).

The Defense Attorney is a Jerk!

If you are unlucky enough to be deposed by an attorney who insists on trying to get a rise out of you with every question, the best you can do is be patient. Sometimes, attorneys ask questions that don’t make sense. Some attorneys are thinking on their feet with their next question, so it’s oftentimes unintentional how the question comes off.

Generally, you do not want to appear angry or frustrated at your deposition. Avoid sarcasm (which may not translate well in a written transcript, anyway). You want to come across as the sympathetic victim that the jury would want to compensate.

If you think the defense attorney is trying to intimidate you, tell them you need to take a break and then talk with your attorney about it.

Why Am I Being Deposed?

There are three main reasons a defense attorney deposes a plaintiff:

  1. The defense attorney cannot speak to you directly once you have an attorney, so this will be his or her only chance to question you before trial.
  2. The defense attorney evaluates your answers and how you will be a witness at trial. Are you likable? Do you come across as honest?
  3. It is much harder to lie or conceal something during a deposition, where follow-up questions can trap you should you choose to go that route.

Can’t the defense attorney get all the info he or she needs from my medical records, accident reports, interrogatory answers, and document production?

For the most part, yes, and know that the defense attorney will have all of these before your deposition. However, the three reasons I just listed above still apply, and nothing beats getting your answers directly from the source.

Your Deposition is Not Your Time to Tell Your Story

Most plaintiffs erroneously believe the deposition is their chance to tell their side of the story. Wrong! The deposition allows the defendant to find as much information about your case as possible. If the defense attorney fails to ask you about something that you consider essential, don’t worry about it. You can volunteer this information after the deposition or, depending on whether it doesn’t have to be disclosed, wait until the trial.

I am not advising you to withhold information in response to a question that has been asked. I advise you not to volunteer information if a question has not been asked. Your day to tell your story is at trial when your attorney will ask you questions, not at your deposition.

What Should I Review Before My Deposition?

At a minimum, you should review your Complaint (the document your attorney prepared to kick off the lawsuit), your interrogatory answers (written answers to questions submitted by the defense attorney you signed under oath), and the accident report, if there was one. Notice I said “review,” not “memorize.” A deposition is not a memory test. Mainly, you want to double-check and ensure that these documents have no errors that will require correcting or explaining during your deposition. If you find any errors, let your attorney know immediately. It is always better to correct these before the day of your deposition.

If everything you’ve reviewed is accurate to the best of your ability, great. It should be much easier to remember then, as the truth always is.

Your attorney should meet with you before the day of your deposition to prepare you and let you know of any areas of particular concern that may be specific to your case. For example, if you had a prior injury to your body before the accident in this lawsuit, be prepared to talk about that.

How Long Will My Deposition Take?How Long Will My Deposition Take?

This varies from case to case and most often depends upon the style of the defense attorney. Some are more long-winded than others and need to explore seemingly irrelevant areas of questioning at length. Expect it to last at least one hour, most lasting between 2-4 hours. People with more complicated medical issues or histories can expect it to be longer than that. This is a question even your attorney may not be able to answer unless he or she is familiar with opposing counsel. Another factor in the length of the deposition is how prepared the defense attorney is. Some insurance company attorneys have a large caseload and may not know your case’s ins and outs until your deposition. If this is the type of attorney on your case, expect the deposition to take longer as they won’t know which questions they’ll need to focus on until later on in the deposition.

The Worst Thing You Can Do in a Deposition: LieThe Worst Thing You Can Do in a Deposition is Lie

No matter how foolproof or elaborate you think a lie may be, the odds of you eventually getting caught — given all the tools available to opposing counsel during litigation — are higher than you think. The risk of being caught far outweighs any benefit you may receive from lying under oath. If you are caught lying under oath, you can expect your lawsuit to be dismissed, and you could incur monetary sanctions (like the other side’s attorney’s fees).

If you exaggerate your injuries, expect surveillance to catch you doing something you claimed you couldn’t do. Lawsuits can take years to resolve. It is complicated to consistently fake difficulty walking, lifting, etc., over such a long period. Aside from surveillance, what will your friends, neighbors, co-workers, etc., say about what you can and can’t do? There are far too many ways to get caught.

Most plaintiff’s attorneys can work with the truth about your physical condition to recover a fair settlement or judgment.

I want to distinguish between “lying” and “saying something that turns out not true.” If your memory is incorrect, like thinking that your accident happened on a Saturday when it happened on a Sunday, this is easily corrected. Of course, this brings me to my next topic.

The Second Worse Thing You Can Do in a Deposition: GuessThe Second Worse Thing You Can Do in a Deposition is to Guess

Guessing during a deposition should be avoided at all costs. Guessing most often happens when a plaintiff is asked a question, and he or she would feel embarrassed not to have an answer. For example, “How long were you at the red light before you were hit from behind?” “What color was the defendant’s car?” “What was the substance you slipped on at the grocery store?”

Get over your fear of feeling stupid for not having an answer to what seem like simple questions. It is far better for you to say “I don’t know” or “I don’t remember” than to guess and be wrong. If you were to say that the color of the defendant’s car was black when it was canary yellow, that inaccuracy would call into question your entire memory of the accident. When you admit to not knowing something, it improves your credibility regarding the facts you remember.

If you are asked to guess, estimate, or “ballpark” something during a deposition, make sure your answer includes the fact that this is what you are doing: “I’m not 100% sure, but I’d estimate that I was sitting at the light 5 seconds before the defendant hit me.”

Dealing with Inaccurate Records

More often than one would think, inaccuracies find their way into accident reports, medical records, or other written records. These can be as benign as getting a date wrong to as severe as stating that you weren’t wearing a seat belt (when you were) or that you have a prior injury, which you don’t. Do not be intimidated by inaccurate records.

The defense attorney will frequently stick one of these records under your nose during the deposition and ask you to explain it. “Now, why would Dr. Jones say you were an unrestrained driver? Where would he have gotten that information if not from you?” The easiest way to deal with these records is to stick to your guns as to the facts and not try to explain records that you didn’t create: “I told Dr. Jones that I was wearing my seat belt because I was. I have no idea why the doctor would write, ‘unrestrained.’ It must be an error.”

Unfortunately, with medical records, errors that occur early in the treatment are repeated in later records, as the doctor takes facts from earlier patient histories and includes them in later ones. So if the doctor writes “unrestrained” on your first patient visit, it will probably be repeated (and maybe even by other doctors who took their histories from the first doctor’s records). Don’t let this dissuade you from telling the truth in your deposition.

Videotaped DepositionsVideotaped Depositions

If you are told that your deposition will be videotaped, don’t worry. There are many reasons for a defense attorney to do this, which may be entirely unrelated to your case. Some firms videotape all plaintiffs’ depositions. Some insurance adjusters want to be able to watch your videotape so that they can personally size you up as a witness.

The video deposition can be your friend. A defense attorney is much less likely to behave like a jerk on videotape.

Defense Attorney Tricks

One of the most common defense attorney tactics is to play “The Silence Game.” After a Plaintiff answers a question, the defense attorney will wait 10-15 seconds to see if the Plaintiff spontaneously starts talking again. This trick preys on people’s natural aversion to awkward silences. Silence has pressure, and it makes plaintiffs want to fill it. Don’t fall for this. If you’re done answering the question, and the defense attorney is silent, let him or her sit there until the awkwardness makes him or her uncomfortable enough to ask another question. If your deposition is not videotaped, there will be no record of the silence. The written transcript will make it appear that you just gave one long answer without any break. Don’t play the silence game.

You will be nervous before your deposition starts. Even attorneys get nervous when they get deposed. You should calm down quickly when it starts and get into the groove of answering questions. Keep in mind that the deposition is not an endurance contest. You can ask for breaks at reasonable times (1 10-minute break per hour is not unreasonable) to use the bathroom, smoke, stretch, get refreshments, or whatever. Let the other attorney know if you have an injury causing lower back pain or anything that makes you uncomfortable during the deposition. Tell him or her that you will need to shift/stand or whatever makes you feel comfortable during the deposition and that he or she can keep going as long as you don’t ask for a break. No rule says you must sit for your whole deposition (though it is courteous to do this if it doesn’t cause discomfort).

Final Note – Always Read and Sign Your Deposition!

At the end of the deposition, the court reporter will ask your attorney if you want to read and sign your deposition or waive that right. Let your attorney know you want to read and sign! This means that after the written deposition transcript is prepared, you can read it and correct errors. Many people (and some lawyers) believe this only applies to errors made by the court reporter. Not true. You can change any answer which you later realize is incorrect or incomplete. Note, however, that changes to your errors will appear on a page at the end of the deposition, known as an “errata sheet.” The original answers will remain, but you are much better off correcting your deposition early than waiting for this error to surface at trial. If you change something important, like adding an injury never discussed due to the accident, the defense attorney may want to depose you again on that subject alone, as he or she was not afforded the opportunity to do so at the first deposition.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Clayton T. Hasbrook who has years of legal experience as a personal injury lawyer. Our last modified date shows when this page was last reviewed.