9 Tips – Prepare Your Plaintiff for a Personal Injury Deposition

Hopefully your deposition will go better than this one

In today’s world, the deposition may be the only time a personal injury plaintiff gets to tell his/her story. Many cases settle shortly after depositions, and a good one can show attorneys and insurance adjusters just how good your case is.

The flip side is that a bad deposition can turn a great case into a loser, or at least into an uphill battle.

Here are some tips to avoid screwing up this process. It’s not an exhaustive list, but it should get your mind on the right track. If there are other tips or suggestions, let me know in the comments.

9. Explain the deposition process. Do not assume your client has any idea what a “deposition” is. I didn’t before law school. Explain that the defense attorney will ask him/her questions about the case, past medical history, work history, etc. Explain that you’ll be there with him. Explain that it will be in a conference room – possibly the same one you’re sitting in right now, and that there will be a court reporter taking everything down. You can be as detailed as you want, but try to make it a brief overview. 

8. Explain the purposes of a deposition. Your client needs to know that this is not just an informal Q&A. There are several purposes, including learning about the case (although the defense attorney will likely know the answers to most of her questions – and you might want to explain the significance of that fact), pinning down testimony, and creating possible impeachment at trial (but don’t say “impeachment” – real people don’t know what that means). I also explain that the defense attorney will write a report to the insurance company about the deposition and how you did, and that the report will go a long ways in deciding whether the case will settle and for how much. For that reason, it’s important to do well and dress well. I typically say no jeans (although I make exceptions from time to time). One of my rules of thumb is to dress like the client is going to church – people usually understand that. Sometimes you even have to tell a client to bathe and show up sober. It sucks, but it beats the alternative.

7. Go over the client’s medical records with them and learn their explanations for certain things. You HAVE to do this. I wanted to make a 10 point list and list this for each point – it’s that important! To do this right, YOU have to know what’s in the records. Start with the first doctor’s visit – usually the ER. What were the client’s complaints? How did the client say the injury happened? Was the client given followup instructions? Did they follow the instructions? If the complaints the client has now don’t match the ER complaints, when did they first arise in the records? Why did it take so long? Are there gaps in treatment? Why? Are there conflicting notes as to how the injury happened? Talk to the client about that. Make sure your client is aware of these things and has a plausible explanation for them. (Note that I’m not suggesting you make up an explanation if they don’t have a good one). This should also include prior records. I tend to explain to clients that they shouldn’t say they never had a back or neck injury before, even if that’s what they believe. I think it’s better to say that they can’t remember one (assuming that they don’t – if they do, they need to be up front about it) because somewhere deep down in their past medical records they probably made an offhand comment to a doctor about a pulled muscle or something in the past, or went to a chiro, or something. You do not want them to hide anything, and just as importantly you do not want them to make an honest mistake that looks like they are hiding something.

6. Talk to them about pain scales. There’s a good chance they will be asked how they would rate their pain on a 1-10 scale. Make sure they know what the records say. Some clients will say “11.” Stop them from doing this before they open their mouths and sound stupid/dishonest. Seriously. I mean this. Break them down – “11? How did you get to the ER? Oh, you called your doctor’s office? So you were in pain greater than you could ever imagine and you were able to make a phone call? And wait for an appointment? You drove yourself to the appointment the next day? And the doctor prescribed over the counter ibuprofen?… etc” Make them realize how stupid this sounds. After you’ve made them feel bad, explain that they would set themselves up for a similar cross examination at trial if they said “11” and you want to prevent that. My wife is an ICU nurse and she tells me that patients in full cardiac arrest typically rate their pain as a 7.

5. While on this point – no exaggeration. NONE! People exaggerate in real life with little consequence. If you want to tell the story about the tall guy who sat next to you on the bus, he goes from 6-6 to 7 feet tall. “I’ll be there in 10 minutes” becomes “I’ll be there in a minute.” Just make sure your client knows that their credibility is the most important thing in the case, and even a minor exaggeration can destroy it.

4. No guesses as to time/distance. Well-meaning people screw this up all of the time. No one guesses distance accurately. No one guesses time accurately. Explain this to them with examples. One I use a lot involves someone saying that they hit their brakes and then another car hit them about five seconds later. Then I point to the clock and show five seconds slowly and painfully ticking off. Guessing on these two things will get your client in trouble.

3. Ask them about their injuries. I have them go from the top of their head to the bottom of their toes and tell me everything that they feel is wrong with them and was caused by this accident. They’ll have to do this in the deposition, so they need practice now. Often they will forget things, especially in serious cases.

2. Ask them typical questions and critique their answers. Some questions that come up more often than not are: How did your body move upon impact? Did any part of you hit any hard part of the car? Who did you talk to? What did they say? Etc. If their answers aren’t any good, try to critique them without telling them what to say.

1. Go to the scene of the accident with the client. Have them show you where everything happened. Ask where the cars ended up. You’ll see things that may be important – landmarks, blocked views, stop lights, etc. Make sure you have a good understanding about things before you leave. This is not just true for car accidents, but also dram shop, premises liability and many other cases.

The good news – if you do this, your client is less likely to screw up and ruin your case. The bad news is that there’s nothing you can do to prevent all client mistakes. The important thing is to ensure your client has all important information and has thought out his/her answers to important questions, while remaining honest and forthright above all.

(Howard Zimmerle is a personal injury attorney in the Illinois and Iowa Quad Cities).