How Personal Injury Attorneys Prepare For Depositions

A deposition involved in a personal injury lawsuit provides an attorney with the opportunity to question individuals/witnesses about matters relevant to a legal case. A deposition is a formal process in which a personal injury attorney can develop the lawsuit’s factual record. Accomplishing the essential objectives of any deposition requires appropriate preparation.

The primary goals of a disposition for a personal injury attorney include the following –

  • A deposition must ultimately be useful during the trial with regard to cross-examination.
  • A deposition must act to convince the opposing side’s decision-maker of the very real risks of choosing to take the lawsuit to the trial phase.
  • A deposition must assist a personal injury attorney in prevailing over a summary judgment.

As a personal injury lawyer prepares for a deposition, it is vital to remember that the attorney, being the individual in the proverbial ‘driver’s seat,’ has a cognitive advantage in this situation. This cognitive advantage exists because attorneys have control during the deposition process. Their authority and management of the deposition process include the framing of an outline and the choice of the order of the deposed questions, among other options.

To meet the deposition’s objectives, there are a few essential techniques that personal injury attorneys can decide to use when preparing for depositions. These are noted below –

  • Because preparation can be the great equalizer, a personal injury attorney must be sure to know the facts stone cold. An attorney must be familiar with –
    • The details that define the deposition’s lawsuit, including the potential dangers caused by the defendant’s behavioral choices. It is crucial NOT to skimp on understanding the lawsuit’s basics and to consider how your questions may be answered before asking them.
    • The applicable court order, rules laws, prior rulings, or precedents that may impact the lawsuit.
  • An attorney should perform as much investigation as possible about potential witnesses and testimonies.
  • An attorney should organize all documents and relevant exhibits that, for easy reference. These include fact sheets, case docs, and responses from discovery, to name a few.
  • An attorney should prepare a comprehensive and resilient deposition outline that still functions despite unanticipated testimony. Note – chatty witnesses typically fall to an opposing attorney’s advantage.
    • Walk each deposed individual through the complaint or any relevant asserted facts.
  • An attorney should question the individual being deposed using simple language, similar to language that would be chosen when speaking in front of a jury.
  • An attorney should determine when the deposition’s questions are investigating case facts or designed to pin an answer down to the witness or interested party.
  • An attorney must be a purposeful and active listener.
    • An attorney should ensure their questions are pointed and unambiguous. The questions that are being asked should be phrased in such a way that the deposed will find it challenging (if not nearly impossible) to dodge the answer the attorney seeks.
    • Has the deposed answered the question the attorney has asked?
      • Was something new revealed in their answer?
      • Did the answer seem incomplete?
  • An attorney should know the rules that have been set forth for the deposition. Before taking a deposition, an attorney should have a full understanding of the rules regarding these issues-
    • Are there time limits imposed for witnesses during this deposition?
    • Can witnesses and their attorneys confer prior to answering a question during a deposition?
    • What are the defined stipulations for this deposition?

Although it may seem obvious to most, it is vital to avoid bickering with a deposed witness or a member of the opposing legal team. Some deposition gurus suggest that it is best to simply conduct the deposition as if the opposing counsel was not even a part of the process. Again, it is critical to re-emphasize this point – avoid debating anyone if the debate will happen on the record.

Personal injury attorneys must ensure their preparation allows them to own the deposition. Owning the deposition refers to the attorney’s approach and state of mind regarding the deposition and should, if you are the noticing attorney, include –

  • Deciding where and when the deposition should take place.
  • Managing where the court report and other parties sit during the deposition.
  • Deciding when you are ready to begin.
  • Staying focused and not allowing others to disrupt your thinking or compromise your fiduciary duty to your client.

One of the most impactful lessons an attorney receives is watching the video and/or reading the deposition’s transcript. Aside from what may be a bruised ego, personal injury attorneys gain great insight by watching themselves from the outside in – as others see and hear them. Experienced litigators, like the attorneys at Stephenson Rife, are ready to handle any size personal injury lawsuit.

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