Presenting Clients for Depositions in Personal Injury Litigation
Presenting Clients for Depositions in Personal Injury Litigation
An oral deposition is a process in which a witness gives sworn testimony while a certified court reporter transcribes the attorney questions and witness testimony. The sworn testimony may be used as evidence to be presented to the court, so it’s best to devote significant efforts to prepare the client and focus on protecting the client during the deposition.
The Lawyer Preparation
A good injury lawyer will obtain a comprehensive understanding of the injured client’s medical history which includes any significant prior injury, diagnoses of current injuries, and expected (future) medical condition/outcome. Next the injury lawyer should review any prior statements from the client and review all client discovery answers. At this point in litigation, the trial lawyer should also have developed and refined the provable damages so this to must be reviewed for the upcoming deposition.
How to Prepare the Client for Oral Deposition
The first thing we discuss with our client is the general process as most have never experienced a deposition. We explain to the client who will attend the deposition and the attendees’ roles—i.e. stenographer, videographer, and defense lawyer. We explain the importance of sworn testimony and how it may be used against the client at trial. We then explain to the client that she should never answer a question if she does not know the correct answer—we emphasize that answering “I don’t recall” is ok when the client does not remember. Lastly, we communicate to the client that we are in control of the deposition so if she needs a break during the deposition, we will take a break. We also explain that we will not tolerate abusive questions from the insurance defense lawyer.
Now we begin to review the liability facts of the case. The level of detail to prepare for liability type questions depends on whether liability is disputed—this article assumes liability is not disputed. Next, we move to medical testimony. We generally have the client review her current medical records and medical bills to refresh her memory. After that we discuss prior medical injuries to help the client distinguish between the accident-related injuries and any prior injuries. Here we ask the client to give a practice answer incorporating the phases “before the accident” and “after the accident.” These two phrases help clients and listeners distinguish between prior injuries and current injuries caused by the accident.
Another topic we prepare clients for is the questioning from defense lawyers about physical impairments or limitations. Most defense lawyers attempt to elicit an exhaustive list of impairments caused by the accident. They seek this testimony so that when additional impairments come to light the defense lawyer can reference the sworn testimony that did not include the additional impairment. Here we encourage the client to give story examples instead of an exhaustive list. If a list is provided, we prepare the client to end the list by stating she reserves the right to include additional items in the future.
The Deposition
Before the deposition starts, the plaintiff lawyer should assess whether there are any unauthorized persons attending the deposition. This has been complicated with the rise of Zoom depositions. During a Zoom deposition the plaintiff lawyer should request the attendees to announce if folks are off screen. If it is discovered that unauthorized folks are attending the deposition the plaintiff lawyer should not allow the deposition to start until only authorized personnel are attending. See Tex. R. Civ. P. 199.
There are three categories of deposition objections: objections to a leading question; objections to the form of the questions; and objecting to non-responsiveness of the answer.
Objections to a leading question only apply when under direct examination—e.g. when the plaintiff lawyer is asking questions to the client. Objections to the form of the question include:
- Question assumes facts that are in dispute or not in the evidence;
- Question is argumentative;
- Question misquotes the deponent;
- Question calls for speculation;
- Question is vague, ambiguous, or confusing;
- Question is compound;
- Question is too general;
- Question calls for a narrative answer;
- Question has been asked and answered;
- Question is harassing or abusive; and
- Question is an incomplete hypothetical.
Under Texas law, attorneys are not allowed to explain the objection during the deposition unless an opposing attorney requests the basis of the deposition. This is to limit suggestive answers to deponents. If an attorney continues to elaborate the basis of the objection without being requested the deposition may be terminated.
Instructions Not to Answer
An attorney may instruct the witness not to answer the deposition question when necessary to preserve a privilege, comply with a court protective order, or protect a witness from abusive questioning. Preserving a privilege and complying with a protective order are somewhat straight forward. If a privilege has been asserted the party is protected unless the judge overrules the privilege. Same with a protective order, the judge may need to make specific rulings on individual questions and the information should remain private until further court intervention.
Instructing not to answer because the questioning is abusive is more difficult to ascertain during a contentious deposition. And if you needlessly instruct the witness not to answer the opposing attorney may request court ordered sanctions. At DeKeyzer Law, we generally allow the opposing attorney to ask tough questions, but when an attorney continues to ask abusive questions we will instruct the witness not to answer and will terminate the deposition if needed. Attorneys that engage in abusive question also engage in abusive side-bar comments, and these abusive side-bar comments also require instructions not to answer and potentially terminating the deposition.
Conclusion
Personal injury lawyers Meagan and Holland have been focused on personal injury litigation for over ten years and have extensive experience in conducting and presenting their clients for depositions. Contact DeKeyzer Law at (713) 904-4004 for a FREE consultation on your Personal Injury or Wrongful Death case.
