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10 Tips for Testifying at your Deposition

Posted by Brian C. Zuanich | May 02, 2018 | 0 Comments

The most important reason to hire a personal injury attorney is to avoid dealing with the insurance company. We deal with the legal stuff; you focus on your recovery.

But that changes if you have to file a lawsuit. In a civil case (i.e. a personal injury case), the insurance company has a right to ask you questions about your injury under oath. This is called a deposition. Testifying at a deposition is different than testifying at an actual trial. There is no judge, and no jury. The only people there are you, your attorney, the insurance attorney, maybe an insurance representative, and a court reporter (the person who is typing everything that's said).

But like testifying at trial, depositions can be challenging and nerve-racking, especially if you've never testified under oath before (which is most of us, me included). Technically, under the law, depositions are optional, but trust me, the insurance company will depose you in a personal injury case. There are very sure things in a lawsuit, but this is one of them. 

Here are 10 tips for knocking your deposition out of the park: 

1. Tell the Truth

This seems so obvious, so why bother mentioning it, right? But people have a tendency to minimize, downplay, or lie about uncomfortable facts (“this may hurt my case, I can't let the insurance company know this.”). Don't do it. If you were speeding just before the accident, and you're asked about it, ADMIT it. Lie, and the insurance company will make sure the jury never forgets it.

2.  Understand the question

Lawyers have one great skill: we can make easy things look extremely difficult and confusing, and we do it almost effortlessly. So if the insurance lawyer asks you a question that doesn't make sense, it probably doesn't.

Don't answer a confusing question. Don't guess at what you think the lawyer wants. Simply state: “I don't understand the question. Please repeat it.” Even if you do understand the question, repeat it to yourself before you answer. This will force you to make sure you absolutely understand every word before answering.

3.  Only answer the question

Your job is to be truthful, not helpful. Don't give the insurance attorney more information than she asked for. If the question is: “Have you had any pre-existing back injuries before?” and the answer is “no,” then you answer “No.” Avoid answering like this: “No, but I've been injured before in other car accidents.” The insurance company's goal is to drag every last detail out of you—don't make its job easier.

4.  Silence is OK 

People are uncomfortable with silence, especially in close proximities. Think about when you're riding an elevator with several people and no one's talking. It's a little unnerving, right? Attorneys use this to their advantage in depositions.

As an insurance attorney, I regularly asked questions like: “Is there anything else,” and if the witness answered “no,” I just waited, maybe for an entire minute, and many times the witness would start talking. Don't do it. If it turns into an extremely uncomfortable starting conference between you and the insurance attorney, then you've already won.

5.  This is not your day in Court

Your job is not to convince the insurance company why you're right, why your injuries are serious, and why the other driver was completely at fault. You have one job, and one job only: to answer questions asked of you—nothing more, nothing less. It will not be emotionally satisfying, and you won't feel like you got to say everything you wanted. Don't go for home runs. Just hit singles, and don't make errors.

6.  Don't get mad 

Easier said than done, right? Absolutely. But maybe this will help you. The insurance company's attorney is an easy target to hate—some unfeeling, cold robot in a suit whose job is to poke holes in your story and downplay your injuries so the big bad insurance company can justify paying you as little as possible.

But remember this: many of the best personal injury lawyers have worked for insurance companies. Why? Because they understand how insurance companies work and use this to your advantage. The moral of this story: insurance lawyers are just doing their job, and they probably won't do it forever (or even that long). They didn't cause your injuries. If you think of them like the enemy, you will let emotion overcome you, and you will make mistakes. And speaking from experience: this is just what insurance attorneys want.

7.  Beware the phrases “always” or “never"

The two dreaded phrases at a deposition. “I have NEVER sped before.” “I always wear my seat belt.” Think long and hard before this phrase comes out, and make sure won't regret saying this later.

8.  Correct Mistakes

Mistakes will happen. You will forget something. You will say something wrong. Don't try to hide it. Tell your attorney and correct it—during the deposition, not 5 months from now, when it will just look you're changing your answer to win your case.

9.  Do not refuse to answer a question (unless your attorney tells you to)

This is not trial. At trial, the insurance lawyer can only ask you relevant questions about the accident, your injuries, and your treatment.

But at a deposition, pretty much everything is on the table—prior accidents, prior arrests, prior lawsuits, prior medical history—in other words, uncomfortable topics that many of us don't want to talk about. In all likelihood, the jury will not hear anything about most of this information.

But if you refuse to answer, the insurance attorney is going to assume that you're trying to hide something (even if you're not) and just kept hammering away until you answer. Even worse, the Court could get involved and force you to answer, at the risk of imposing sanctions.

10.  Study

By the time of the deposition, the insurance attorney will have read everything you've written or said about the case—it may seem like the insurance company knows more about your injuries than you do. The best way to help yourself is to prepare for everything that will come your way, because the defense attorney will pore through everything you said, looking for discrepancies. The worst thing is to be confronted with a document that you forgot your wrote or a statement you forgot you said

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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