8 Principles of Deposition

If you’ve been injured in a car accident and sought the help of a personal injury attorney, you may at some point have to provide sworn testimony during what is called a deposition. Cornell Law School’s Legal Information Insitute states that a deposition is a witness’ sworn, out-of-court testimony. It is used to gather information as part of the discovery process and may be used at trial, most likely against you unless you are adequately prepared.

Knowing this is likely your first experience giving sworn testimony or being deposed, our team wants to share Kenneth Hancock’s 8 principles of deposition to ensure that your deposition works in your favor.

1. Don’t guess or estimate.

It’s natural that you will want to provide helpful answers. This is something we do in everyday conversation, but you have to remember that this is not an everyday conversation. The person sitting across from you asking questions is an insurance attorney whose sole job is to poke holes in your case. It is of the utmost importance to never guess or estimate anything at your deposition. In car accident cases, this usually comes up with speed, distance, and time. A car accident is a traumatic event, and this trauma distorts your recollection of all three of these factors.

2. “I don’t know” is a perfectly acceptable answer.

It is perfectly acceptable to not remember aspects of the accident. It is often a traumatic event. It’s better for you to pause and to really think about what was just said to you or think about your own words before responding out of habit or wanting to help. Kenneth shares that it is better to say “I don’t know” or “I don’t remember” than to be locked into a wrong answer.

Example:

Counsel: “How fast were you going at the moment of impact?”

Don’t Say: “Hmmm [looking to the ceiling]…I don’t know, maybe 45.” [Note: the speed limit where the accident happened is 35, but you forgot.]

Do Say: “I’m not sure.” Or “I was going with the flow of traffic.”

3. Stay away from absolutes, such as “never” or “always”.

Kenneth always recommends avoiding the use of words such as “never” or “always”. This can happen overtly in your answers or it can be implied by the way the insurance attorney asks you a question. Overtly, avoid saying things like, “I never speed” or “I always wear my seatbelt.” As far as implied absolutes by the insurance attorney go, look out for questions like “Is that all?” or “Is there anything else?”. Better to say, “That’s all I can recall at the moment” than be stuck with “yes” in response to such questions.

4. Don’t fence or argue with the other attorney.

Arguing with the other attorney never ends well and impacts the value of your case. Remember that you are being questioned by a “trained” arguer. This is not to say the insurance attorney asking you questions is smarter than you, but they argue for a living. Fencing tells opposing counsel that you can be easily aggravated at trial. Jurors tend to view witnesses negatively when they fence and argue. Insurance companies know this, so if they know you can lose your cool when being questioned, they will assign a lower value to your case during settlement discussions later.

Kenneth recommends a tactic from fellow attorney and author Bob Goff in his book Love Does. Sit with your palms up in your lap. Body language subconsciously influences demeanor and perception. For example, crossed arms show a defensive person to the jury and will also lead the witness to act more defensively. Open palms — even if not seen by a jury — connote patience, openness, and honesty. This will translate into the witness’ demeanor and makes them less likely to get defensive with opposing counsel.

5. Give simple, concise answers.

Don’t offer any additional or unnecessary information. Opposing counsel is not your friend and will seek to use any information possible against you. If you can provide a simple yes-no answer, do so. Additional information can lead to additional questions, which may in turn provide opposing counsel with more information to use against you. The insurance attorney will make mountains out of molehills at trial, so every extra bit of information is extra ammunition to use against you. Volunteering information also lengthens the deposition unnecessarily. What should be a two- to four-hour deposition can quickly turn into a two-day deposition.

Example:

Counsel: “Where do you live?”

Do Say: “Port Charlotte.”

Don’t Say: “I lived in Arcadia about 5 years ago, but I moved to Port Charlotte because I got into trouble with work. I actually moved to Punta Gorda first, then moved to Port Charlotte a few months later. I remember because it was right around the time my car was getting fixed.”

6. Avoid beginning your answers with “honestly” or “To tell you the truth.”

Often, these types of terms are filler words that we say to provide ourselves with more time to think. Starting any answer with “honestly” can often connote that answers where you did not start with “honestly” or “to be honest” were not, in fact, honest.

7. The questioning attorney is not your friend: they are working for the insurance company.

The rules of discovery are extremely broad and vary greatly from the rules of admissibility at trial. Something can be discoverable without being admissible: an attorney might be able to find out about something during discovery at a deposition, they will not necessarily be able to get into evidence at trial. This means the insurance attorney is trying to get as much information out of you as possible.

Depositions are not usually the tough cross-examinations you see on Law & Order. There’s a saying that you catch more flies with honey than you do with vinegar: the opposing attorney knows he will get less information if he is rude and aggressive. There is danger in being lulled into a pleasant chit-chat with the insurance lawyer. Do not let the conversational nature of depositions fool you. Unlike Kenneth and the relationships he develops with his clients, opposing counsel doesn’t care about you and is not your advocate — no matter how nice they seem. They are paid to pry and ensure you do not get the settlement you rightfully deserve.

8. Tell the truth.

Last, but certainly not least, tell the truth. It’s more than likely that you will break one of these eight rules, but this is the rule to not break. You are providing sworn testimony: lying while under oath is a crime of perjury. Do your best to follow the other seven rules, but above all else be truthful. Remember that Kenneth Hancock only represents parties not at fault in car accidents. Thus, as his client, you are not at fault. You did nothing wrong and the truth will only support that.

If you’ve been in an accident, are injured, and are looking for personalized representation, contact us. We’ll set up an intake meeting for you as soon as possible so that you can focus on healing, while we focus on your settlement.

DISCLAIMER: Please note that the information provided in this blog is general in nature and should not be construed as legal advice nor as creating an attorney-client relationship. Every case is different and legal advice cannot be provided by Hancock Law unless/until we meet to discuss the particulars of your case. Whether an attorney-client relationship exists can differ on a case-by-case basis, but at Hancock Law we consider such a relationship to exist only upon a potential client’s request and our agreement to accept that representation.