Guidelines for Depositions

An Introduction for Giving Testimony in a Personal Injury Lawsuit

At the Law Offices of Kevin McConnell, we fight for each injured client to recover the highest possible recovery for their injuries and damages. Some case settle for satisfactory amount before a formal lawsuit if filed, others need to be prosecuted in the Courts. Once the case is filed, each party to the lawsuit has the opportunity to conduct “discovery” to learn facts and information, and to obtain documents, helpful to their case. Discovery may include written questions (“interrogatories”), requests that the other side provide certain documents (“document production), and testimony under oath, called a “deposition.”

This article is to familiarize the reader with the deposition process and reduce any unnecessary anxiety created by the prospect of answering  a bunch of questions for the other side’s lawyer. Unlike courtroom testimony that we all see on TV, the deposition process is usually pretty tame and the lawyers fairly well behaved and respectful. There are two key components for a successful deposition experience: (1) prepare thoroughly with your lawyer, and (2) have an experienced personal injury attorney at your side during the deposition.

What is a Deposition?

Under California law when you bring a legal action for personal injuries, the defense attorney has a right to take your testimony at a deposition. You will take an oath (the same as in a Court of law) to tell the truth and, under the supervision of your lawyer, answer questions posed by the other side.

The deposition process is relatively informal; there is no judge or jury present. However, the proceeding is formal to the extent that all the questions and answer are taken down by a Court reporter and are “on the record” and available for later use, including use in Court. Once the deposition is complete, the Court Reporter will type up all the questions and answers and you will be provided with a copy of the deposition transcript to review.

You are allowed to make any changes, corrections, additions or deletions to your deposition answers. However, if your case goes to trial the attorney for the other side may comment on the reason why you made changes to your answers and try to suggest that you have been dishonest. The best practice is to prepare thoroughly with your attorney, give complete and accurate responses at the deposition, and avoid the need to “change” your testimony afterward.

During your deposition, the other attorney can ask you questions that are admissible in Court under the rules of evidence. In addition, she can ask you questions that may seem to be none of her business!  However, the Courts allow a wide latitude in “discovery” questions and the attorney may inquire about things that are not directly or immediately relevant so long as the answers may lead to other discoverable evidence.

Objection! (This is NOT Like Lawyers on Television)

Because the attorney asking questions at a deposition is allowed a wide latitude, it is possible that your attorney will not object to questions that seem irrelevant or inappropriate. Again, the deposition experience will be quite different from anything you may have seen on TV and is quite different than what takes place in a California courtroom. For this reason, do not be surprised if there are not a lot of fiery objections and arguments at the deposition. These are usually unnecessary. If the defense attorney questions you on any subject that is not proper, your attorney will object to the question. If your attorney objects to the question and instructs you not to answer it, then you should refuse to give any answer to the question. Sometimes your attorney will object “for the record” so as to preserve the objection for some later discussion with the Court. The attorney will often permit you to answer after making the objection for the record. You should answer all questions until or unless your attorney instructs you not to answer.

The deposition will assist the opposition in evaluating this case for settlement purposes. This is often the first and only opportunity for the other attorney to see you before the case comes to trial. Therefore, you should be neatly dressed, courteous, and respectful to the other attorney and all others in the room. Be prepared to exhibit any injuries that might be visible, so wear the right clothes. Discuss what to wear with your attorney prior to the deposition if you are unsure.

The other attorney will have complete information from his investigation as to all past injuries that you have sustained while on the job, in an automobile accident, or from any other incident, including the names of witnesses and doctors. It is common for the other side to check on medical treatments you have had. Insurance companies have indexes where they can get information on all prior injuries.

Before the trial, perhaps before the deposition, the other side may have investigated what you do at work, at home, in your neighborhood, and any other place you go. It is not uncommon for the insurance companies to hire investigators to watch your movements and take videos or photos of your activities while you are working around the house or yard, at your place of employment, or any outdoor activities or sports.

Participating in activities while you are injured — mowing the lawn, working, or doing anything else you feel able to do (and that the doctor allows you to do) — will not hurt your case. However, if you testify that your injuries have prevented you from doing these things, the defense attorney can seriously damage your case with photos or videos or witnesses directly contradicting your testimony.

Listen to the Question; Answer Just That Question

It is important that you do not testify to something that is inaccurate. For this reason, LISTEN TO EACH QUESTION CAREFULLY AND BE SURE THAT YOU UNDERSTAND IT BEFORE ANSWERING. If you do not understand it, ask the other attorney to repeat it or to rephrase it so you do understand it. When you understand the question, then answer it honestly and in a straightforward manner. If you do not know the answer, do not be afraid to say you don’t know or don’t recall. No one can remember every small detail; however, you will remember the important things.

You will have to answer, under oath, about all of the facts concerning the cause of the injury, the nature, and extent of the injuries. You cannot say anything different at trial without being subject to impeachment or contradiction with this deposition on cross-examination. Many cases are lost because the witness tries to hide something.

The other attorney will probably be friendly and will not “bully” you in any manner. His theory will probably be that the more he can get you to say the more likely your are to “put your foot in your mouth”. Therefore:

UNDERSTAND THE QUESTION before you offer an answer. You don’t have to hurry in answering.


STOP AFTER YOU HAVE ANSWERED THE QUESTION — Do not volunteer anything that has not been asked. Give a full and complete answer to the questions asked, but do not anticipate any other question or attempt to answer it. If the other attorney overlooks any relevant or important questions, that is his worry, not yours.

DO NOT LOSE YOUR TEMPER — If the other attorney should be rough or discourteous in any manner, your attorney will take action to bring the other attorney into line or discontinue the deposition.

Speak loudly and clearly so that everyone can hear and understand you. You must answer out loud, as a nod of your head, or an ”uh-uh” or ‘uh-huh” cannot be recorded by the court reporter transcribing your testimony.

Summary of Deposition DOs and DON’Ts

  1. Dress conservatively (no jeans), as if you were going to a job interview.
  2. Treat all persons in the deposition room with respect.
  3. Come prepared to exhibit any and all injuries which you have suffered.
  4. Have with you facts and figures with respect to your time lost from work, amount of wages lost, doctor bills, and all other facts with respect to the damages caused as a result of your injury.
  5. Consider this an important and solemn occasion and avoid “getting chummy” with opposing counsel or his client.
  6. Tell the truth.
  7. Never lose your temper.
  8. Don’t be afraid of the lawyers.
  9. Speak slowly and clearly.
  10. Answer all questions directly, giving concise answers to the questions, then STOP TALKING and wait for the next question.
  11. NEVER VOLUNTEER any information. Wait until the question is asked–answer it and STOP. If you can answer “yes” or “no”, do so and STOP.
  12. Stick to the facts and testify only to that which you personally know.
  13. If you don’t know, admit it. Some witnesses think they should have an answer for every questions asked. You cannot know all the facts, and you do yourself a disservice if you attempt to testify to facts with which you are not acquainted. You cannot change your testimony later. It is IMPERATIVE that you be ACCURATE, HONEST and STRAIGHTFORWARD in your testimony.
  14. Don’t try to memorize your story. Justice requires only that a witness tell his story to the best of his ability.
  15. It is not our purpose to give the opposing party any more information than we have to. Therefore, only answer the questions asked and answer them with as few words as possible.
  16. Do not answer a question unless you have heard it and clearly understand it. If you have to, ask that it be explained.
  17. Do not guess or estimate time, speed, or distance unless you are sure that the estimate is correct, and then make certain you state that this is your estimate. Go over these estimates with us before your deposition.
  18. If we object to a question, stop talking, and we will then instruct you, after we object, to either answer the question or not to answer it.
  19. After the deposition is over, do not discuss anything in the presence of the opposing lawyers or the reporter. Anything you say may then reopen the deposition. If you want to discuss something after the deposition, wait until we are alone.

REMEMBER, perhaps the most important aspect of your lawsuit is YOU and the impression you make. If you give the impression of earnestness, fairness, and honesty, and, if in giving your discovery deposition you keep in mind the suggestions we have made, you will be taking a great stride toward successful completion of the litigation with which you are involved.