Depositions 101: What you need to know
As every experienced trial auto accident lawyer New York, NY knows, the deposition a very important discovery device in the litigation process of a personal injury matter. A deposition can single handedly determine the outcome of a trial or the ultimate settlement value of a case. The attorney must not only be aware of deposition strategy and tactics, but must also have a full understanding of the rules governing depositions. The client must be adequately prepared as well, both mentally and substantively. In this article I will outline some basic rules and suggestions for getting the most out of your depositions in a personal injury case, for both the attorney and the client.
The Client
I have found that when preparing the client, the most important goal should be to alleviate as much of their anxiety as possible. Meet with the client well in advance of the deposition day and set aside time immediately prior to the deposition to review and answer any of the client’s last minute questions. Explain to the client exactly what will take place and who will be there. If the deposition will take place in your office, prepare the client in the conference room where the deposition will take place and seat them in the seat they will be sitting. Make sure they understand and can repeat the rules below.
1) Don’t try to answer a question that:
a. you don’t know the answer to;
b. you don’t remember (the answer) or
c. you don’t understand (ask the questioner to rephrase);
2) Only answer the question that is asked;
3) Take your time and proceed at your own pace;
4) Don’t guess or speculate;
5) Be Honest;
6) Dress appropriately and comfortably. The opposing attorney will be evaluating your appearance as well as your demeanor.
Do not underestimate the importance of putting in the time to properly and thoroughly prepare your client for the deposition. Remember, in most cases this will be their first deposition. Use example questions to get them used to answering consistent with the rules you have given them. You must get to know your client. Are they overly “chatty?” Do they have difficulty articulating or recalling facts? Soft spoken or out spoken? Does he or she have a short temper or tend to be impatient? Stress to the client not to think about the reason for the question, but just to think about the answerto the question. Also, remind the client that the deposition should not be a hostile or adversarial event. It is an opportunity for the other side to learn more about the claims the client has made and that we will have the same opportunity to ask their witnesses probing questions as well.
The Attorney
To get the most out of the deposition and put your client’s case in the best position possible, the lawyer must know two things: the rules and the case. First, the rules. Each state has rules governing the conduct of the deposition as do the federal courts. The lawyer must be familiar with these rules and be confident in citing them during the deposition if necessary. In New York, for example, CPLR 3115 provides that all objections, other than as to the form of the question, are preserved for trial, so there is no need for the attorney object to most questions at the deposition. This rule is generally incorporated into the “usual stipulations” which the parties enter in to prior to the deposition. However, the lawyer should know that proper objections under CPLR 3115(b) include:
1. Ambiguous questions
2. Argumentative questions
3. Questions which assume facts
4. The mischaracterization of prior testimony
5. Compound questions
6. Harassing or vexatious questions
7. Questions which have been asked and answered
Can an attorney direct the witness NOT to answer a question? Generally speaking, the answer is yes. It is permitted in four instances when: asserting an attorney-client privilege; asserting a physician-client privilege; asserting the Fifth Amendment privilege; or when a question is palpably irrelevant or unduly burdensome. These are but some of the deposition rules that the lawyer must know and be comfortable citing during a deposition.
Second, the lawyer must know the facts of the case cold. That means recognizing the issues in the case, whether they be factual or legal. This will not only help the lawyer prepare the client, but will also aid in the overall organization of the deposition, guide decisions regarding exhibits as well as formulating lines of questioning. You must know all prior statements made by all parties and non-parties. You must know the medical records and treatment history of your client. You must know the “good” and the “bad” facts of your case. Remember that the bad will not disappear if you simply ignore it. Is there a notation of alcohol on client’s breath in the emergency room record or crossing against the light in the police report? These issues must be attacked head on and honestly. What are the legal elements of our claim that must be met for us to be successful? What additional evidence do we need to prove them?
The deposition can make or break your case. Following some simple rules, and thinking through your theme of the case, can go a long way to making the deposition go smoothly for the client and for the case.
Thank to our friends and contributors from Okun, Oddo, and Babat P.C. for their insight into depositions.
