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Rick Shapiro
Rick Shapiro
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Demystifying Injury Litigation: What Is a Deposition and How Do I Get Ready for It?

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This article explains depositions and how they work, and is not limited to Virginia or Carolina where I primarily practice. It is part of a continuing series of articles where Injuryboard injury attorneys explain the basics of the injury law legal system (see the end of the article where I provide links to all of the prior injury case legal issue blog posts).

In one of the last posts of my Injuryboard colleagues, Steve Lombardi discussed how insurance adjusters can use recorded statements against injured persons, and distilled the reasons insurance adjusters take statements to two simple truths:

Insurance adjusters talk to those filing claims for two reasons and only two reasons.

Reason 1. See if they can get you to say something that gives them a reason to deny your claim.

Reason 2. See if they can get you to say something that allows them to pay you less than the law reasonably requires.

The adjuster get’s bragging rights at the office if he does.

Like Lombardi’s advice above, when the insurance lawyer/defense lawyer takes an injured person’s deposition the single, paramount purpose is to use that deposition against you at any trial. Here are some key points:

What is a court deposition?

A legal deposition in an injury lawsuit is a formal process where the injured person testifies under oath, which usually means one of the parties–either the injured person’s attorney or the defense or insurance attorney, assures that a licensed court reporter/stenographer is present to record the injured person’s testimony, which then can be used in certain ways in the injury case. Every state and federal court specifies a written court procedure on exactly how a deposition can be conducted, and other provisions specify how it can later be used once it is typed up by a court reporter. Also, these written court rules specify that such a deposition can be videotaped and some court rules even provide that a deposition may in fact be videotaped and without a court stenographer present. Court reporters are highly trained and most states require licensure.

Is the court reporter from the court?

This is not a stupid question that I have been asked by clients. Some are surprised to learn almost always the "court reporter" is an independent licensed stenographer that is not an employee of the court system (some courts do employ court reporters, but those court reporters transcribe court hearings or trials. Depositions are normally not held at the courthouse but rather at any suitable conference room or an attorney’s office conference room). In every city there are court reporting firms that have licensed court reporter stenographers on staff who are essentially independent contractors. An attorney simply calls up a court reporter for the area and asks that the court reporter cover a deposition and that court reporter is paid through a bill provided to the injured person’s attorney or if the deposition is requested by the insurance lawyer or the defense lawyer, that lawyer is obligated to pay the appearance costs and fees for typing up each page of the deposition they order. Ultimately, no matter who wants a copy of the deposition transcribed, the court reporting company bills per page for the deposition transcript, and these days attorneys often receive both a hard copy and an e-mail copy of the deposition testimony of the witness. The longer the deposition, the more pages, which translates to more cost billed by the court reporter.

In my injury case deposition who can be present when I am deposed?

Normally, the parties to the case, their attorneys, a party’s claims adjuster or corporate representative, and a court reporter are the persons present at a deposition. Other persons can be present if everyone consents. They are often done in a conference room at a law firm.

What is so important about my deposition?

A lot. Okay, it’s not a serious as being interrogated by the FBI for a criminal matter. But, for your injury case your testimony under oath that can be used at trial or any hearing just like if you were sitting in the witness chair testifying at a trial (some states do have a limitation on whether a deposition can be used or filed as part of a hearing in advance of a trial and those complicated rules are beyond the scope of this outline). So, the insurance lawyer or defense lawyer is keenly interested in whether your testimony holds water, is believable, and the biggest mission of the lawyer on the other side of the case is to try to show that you are not a good witness, are a liar, or are not sure about facts that you say support your case. The deposition process is extremely important and valuable to the court system because not only must you as the injured person be believable, but we will take the deposition of the person that caused your injuries or corporate representative of a company that caused your injuries and we are also entitled to show that the “defendant” driver, or company officials cannot be believed or that their conduct was careless. It’s an equal opportunity truth seeking device for both the injured person and that person or company being sued for careless or negligent conduct.

How can they use my deposition against me?

Here’s how: every word you say is typed up into a transcript. Each word can and may be used against you in a civil injury trial. If the case cannot be settled, and we imagine that the case finally gets before a jury, the injured person puts on all of their witnesses and evidence prior to the party being sued. When the time arrives for the defense lawyer to present evidence and witnesses, that defense/insurance lawyer can stand up in front of the jury at one time they choose and read passages or individual questions and answers from your prior court deposition–even if you are not actually on the witness stand testifying! In other words, that lawyer can simply pick parts of your deposition out and read them to the jury, even if you’re not testifying at that time. That’s pretty powerful use of the deposition but it’s only any good if the insurance lawyer catches you in some unbelievable testimony. Defense attorneys don’t stand up and read parts of your deposition that reinforces how honest you are and how serious your injuries are! They only want to read something that makes fun of you or seeks to paint you as a liar. Here I should note that if the company’s representative makes unbelievable statements or bald-faced lies, your injury attorney has the same rights to read parts of that company representative’s testimony to a jury during the presentation of all of the evidence supporting your injury case.

What deposition advice can you give me in general?

Not a lot because this article is too generic. Nonetheless, a highly competent injury attorney takes the time to review all of the main issues that are likely to come up in a deposition with their client, listens carefully to the client’s version of events and explains how an attorney may try to twist their words against them. Depending upon how serious the issues are in the case I may spend hours meeting with a client to prepare them for a deposition. Words of wisdom include never lie, never think you can cover-up an issue that you personally believe is irrelevant to your present injuries, as it is up to your experienced injury attorney to learn what you think is irrelevant and then advise you of the law that applies or whether some legal privilege applies that can protect you from disclosing that information. This type of thing is exactly why you decided to hire an attorney so full disclosure is important in confidence as the attorney-client privilege protects certain kinds of disclosures that the law deems inadmissible in an injury case. Just don’t make that decision in your mind without disclosing it to your attorney. Do not think that the other attorney may never find out about some pre-existing medical care that you kind of decided is not relevant. Real bad idea-you must cover with your personal injury attorney. We handle some high-stakes litigation involving serious and catastrophic injuries as well as the routine injury case. In some serious/catastrophic litigation it is not unusual for private investigators to stake out injured persons and we explain this to our clients, as the ramifications can be serious.

Yes, I have certain ways I explain this process to a client after sitting through 100′s of depositions but only my actual clients will get that specific advice. I trust you understand.

Any injured person should never attempt physical activities inconsistent with their doctors restrictions but all sorts of issues relating to your physical condition like whether you suffered any pre-existing condition of relevance can arise in a deposition. If you are out of work from a serious injury, there will likely be an inquiry about all of your prior jobs and employment and you must disclose to your lawyer if you were fired for many prior position and why, and you must disclose any and all prior injury related claims that you have ever filed whether you believe they are relevant or not. We deal with lawyers that subpoena high school transcripts, division of motor vehicle driving records, other background checks etc.

Because the deposition process is part of actual litigation, I cannot go far beyond the very generic in this blog post. It is not exaggeration to say that your own deposition as an injured person is probably the most important thing in your case prior to trial.

Here are a number of good injury law blog posts from my Injuryboard colleagues:

I was in an automobile accident. What should I do? Ten Tips For Hawaii Drivers, Wayne Parsons on September 14, 2009 – 3:59 AM EST.

What would a caveman bring to meet with the lawyer?, Steve Lombardi , September 15, 2009 11:00 AM

Solving Legal Problems, Being a Client, Back to the Basics, Steve Lombardi , September 15, 2009 8:48 AM

Car Accident Injury Client: What Makes the Case Good or Bad? (The Collision & Medical Care) , Rick Shapiro September 16, 2009 9:38 AM

Being a Client: More Tips To Help Improve Your Case If You’ve Been In An Car Accident , Devon Glass , September 17, 2009 8:39 AM

Presumed Guilty: How to Avoid Having Insult Added to Injury When You’ve Been Hurt in a Car Crash, Pierce Egerton , September 18, 2009 4:28 PM

What To Do After An Accident When The Adjuster Is There First, Mike Bryant, September 19, 2009 6:26 PM

What Questions Is The Lawyer Going To Ask Me At The Initial Interview For My Injury Or Death Case?, Wayne Parsons , 20 September 2009 12:01

What makes a case good or bad?, Steve Lombardi, 21 September 2009 12:57 PM

What To Do After An Accident When The Adjuster Has A Tape Recorder, Mike Bryant , September 23, 2009 10:01 PM

Do I have a good or a bad case?, Devon Glass, September 24, 2009

What are interrogatories and how do I answer them?, Steve Lombardi, September 29, 2009

Interrogatories: A Written Deposition , Devon Glass, September 30, 2009

How Do You Value Your Case? Mike Bryant October 03, 2009 9:29 AM

Demystifying Injury Litigation for Clients: What Are Interrogatories?, Rick Shapiro ,October 3, 2009

Do only dishonest people refuse to give a recorded statement? Steve Lombardi | October 06, 2009 10:47 AM

About the Editors: Shapiro, Cooper Lewis & Appleton is a law firm which focuses on injury and accident law, and we have experience handling serious injury cases. Check out our case results to see for yourself. Our primary office is in Virginia Beach, Virginia (VA). Our lawyers hold licenses in NC, SC, WV, KY and DC. Our injury attorneys also host an extensive injury law video library on Youtube. Further, our lawyers proudly edit this blog and the Norfolk Injuryboard as pro bono public information services.

RNS

2 Comments

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  1. Mike Bryant says:
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    These are really good all encompassing pieces of advice. I especially like the comparison to the statement and the way they use it. The whole key is always to remember that you are under oath and it really is testimony. I have watched so many people just be themselves and truly strike a cord with their humanity.

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    I am going to give my clients this article and tell them that this is all they need to know. You show that the most important part of testifying inan injury case is to tell the truth and work hard to get your facts straight so you don’t end up saying different things each time you talk to someone. I wonder what an insurance company attorney tells her or his client.? That attorney is paid by an insurance company (inusrance companies care ONLY about saving money) and not the actual defendant driver. Do they ever tell their witnesses what to say at depositions? Do they ever hire doctors to testify that the plaintiff isn’t really hurt or is malingering? I think so. I hate to say it but I do. Does AIG care about the truth in an injury case. And what kind of doctor would take a big fee from an insurance company to say that the injured plaintiff is a liar and a fake. As I watch the health care debate and read about all of the poor doctors being sued I think about the doctors who make over $1 million per year to write what are called IME reports for insurance companies. The reports are whatever AIG or State Farm or Liberty Mutual wants to hear.

    Anyway, Rick, I love the article and will give it to my clients in Honolulu.