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Personal injury deposition preparation

Most cases handled by a personal injury attorney settle before trial. Some injury claims settle after a demand letter is sent from the personal injury attorney to the insurance adjuster for the defendant. However, to get a full value settlement for a personal injury, it is often necessary for the personal injury attorney to file a lawsuit and go through the discovery process. A personal injury attorney will take the necessary steps using the rules of procedure.

Personal injury attorney approach

In my office, we are always preparing to take personal injury cases to trial. This keeps the defendant offers reasonable, and sets up a potential trial victory.

Document discovery by your personal injury attorney

Discovery is the process of getting evidence before trial from the opponent or from other people or organizations. Document discovery is getting papers and photographs. The client is kept informed as this is done. In many cases the client gets a copy of everything. However, for a serious injury case this can be over 10,000 pages, more paper than some clients want to see.

Depositions are done in a conference room of the attorney's office

After document discovery, there are depositions. A deposition is when a person comes to a conference room and gives sworn testimony.

Client testifies

The client tells his or her personal injury lawyer the facts, cooperates as we go along, but only has two personal tasks in the presence of the opponent: to testify at deposition, and to testify at trial. This post is about testifying at deposition.

Much of the time and energy by defendant’s counsel is invested in the depositions, of the injured party and of other witnesses.

Deposition rules

The formal rules say

Federal Rules of Civil Procedure, Rule 30. Deposition by Oral Examination
(a) …
(1) … A party may, by oral questions, depose any person, including a party …

(b) Notice of the Deposition; Other Formal Requirements.
(1) Notice in General.
A party who wants to depose a person by oral questions must give reasonable written notice to every other party. …

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.
(1) Examination and Cross-Examination.
The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence…

(d) Duration…
(1) Duration.
Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time … if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. … If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(e) Review by the Witness; Changes.
(1) Review; Statement of Changes.
On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

State Court deposition rules are generally similar.

Lawyers call their job of representing the person being deposed “defending a deposition”. Your personal injury lawyer is there at all times, ready to object and if necessary to call a halt to any abusive conduct.

Specific steps to prepare for deposition

The client’s job is to avoid losing ground. The personal injury attorney will help the client by preparation:

  1. You are not asked to memorize a bunch of stuff, instead you just need to get clear on the main points. Clarity about the main points, plus telling the truth, makes it go well.
  2. You will get a tour of what happens in a deposition, well before your deposition happens. You will review a program that explains the process. I often use a product called DepPrep. It is a slide show on a computer, with explanations, so you can go back if you did not understand. Then, you and I talk over any concerns, in private, before the deposition.
  3. Some time before the actual deposition, you are asked questions, to experience being questioned and giving answers. Sometimes I have another lawyer act as my co-counsel and assist me by questioning the client. A practice session is work, but it makes you, the client, much better prepared and less emotional.
  4. All clients eventually start babbling during their deposition. I have never in 30 years had a client that can continue to (a) just answer the question and (b) then shut up. Every client eventually starts talking and adding comments and explaining, as if the deposition were a social event. Perfection is not required, just do your best to answer the question and then stop talking.
  5. Only a few clients are self-destructive, but if so it is better to know sooner than later.
  6. Long questions can contain a shading of the truth, so you have to listen carefully to the entire question. If your attention wanders, for you are human, you can ask to have the question repeated.

Preparation for your deposition is one of the steps that makes it possible for your personal injury attorney to get you a good settlement offer.

This post was written by E. J. Simmons, a personal injury attorney in Portland who represents injured clients in settlement negotiations, in depositions and in trial.