Sample Deposition Questions In Personal Injury Cases

This week’s litigation tip expands on my article, “The Top Ten Killer Deposition Questions,” to provide ideas for basic deposition questions in a personal injury matter.

The most popular articles on this website have to do with depositions, which shows how important this discovery procedure is in today’s civil litigation practice.  Based on the most recent California court statistics,  between 8 and 12 percent of civil cases filed go to trial.  For the other roughly 90 percent of cases that settle or resolve through a dismissal or motion, the deposition might as well be considered the trial.

Defense lawyers typically ask these questions (at least I do when defending a case involving personal injuries), so plaintiff’s lawyers should review this list with their clients during preparation for deposition.  Also check out my article on “Preparing Your Client For Deposition.”

• “When did you first realize there was going to be an accident?  Tell me how you knew an accident was about to happen.”  This is a good opening question to set the stage.
• For trip-and-falls:
• “How did the accident happen?  What happened with your foot?  Did you trip?  Did you slip?  Did your foot catch?  Did some part of your body twist?”
• “Was there any foreign substance or article on the surface where you fell?  Was there anything unusual about the surface where you fell?”
• “How did you land?  On what part of your body?  Were you face up or face down?  Which direction was  your head pointed?  Which direction were your feet pointed?”
• For motor vehicle accidents:
• “What did you hear right before the accident?”  If the police report, photos or accident reconstruction report shows skid marks left by any vehicle, that would produce a loud, shrill noise that could be heard for blocks around.
• “Describe how your body moved during the accident.”  A detailed verbal description and/or the videotape of the deposition (if used) will be useful to a retained medical doctor, chiropractor, biomechanics expert or accident reconstructionist.  Sometimes the plaintiff’s description may contradict the laws of physics (such as when plaintiff says he fell backwards following a sudden bus stop) or be inconsistent with other evidence.
• “What parts of your body made contact with what parts of the interior of the vehicle (or sidewalk or floor)?”  You want to compare the purported points of impact with the medical evidence of the location of cuts or bruises.
• “When did you start to hurt?”
• “Did you have any swelling?  Where?  When did that occur?”
• “Did you have any cuts, bruises or scrapes?  Where? When did those become visible?”
• “Did anyone take any photographs at the location of the accident?  Who?  When?  When did you see these photographs?” 
• “Did anyone take photographs of your injuries?”  Ideally, you should have obtained these photos in response to document demands before the deposition.  Sometimes the plaintiff’s lawyer hasn’t done his or her job in gathering responsive documents, so you should always ask the plaintiff.
• “When did you first seek any medical treatment?  How did you get there?”  I’m always amazed how many accident victims call a lawyer before a doctor.  And there was the bus fall-on-board case I defended once where the plaintiff stood up, announced he had changed his mind and “wanted to get paid,” and laid back down on the floor to wait for the paramedics.  Meanwhile, he got out his cell phone and started calling law firms.
• “How did you find your doctor?”  Often the lawyer has referred the client to a favored treater, who will take a lien on the case instead of payment up front.  Many plaintiffs’ attorneys, however, frown on this practice.
• “How long were you at the doctor’s office for treatment?”
• “Describe your treatment.”
• “When did you last see your doctor?” 
• “Did your doctor prescribe any medication?”
• “Are you currently taking any medication as a result of this accident?”
• “How are you feeling today?”

Preparing Your Client For Deposition

Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience.  At the end of the day, a weak performance or just one poor answer can sink a case.  But even with stakes this high, most lawyers do not spend enough time preparing the client to testify.  While the demands of your practice, your client’s calendar, or the legal budget for the case may not allow it, ideally you should spend at least two hours of  preparation with the client for each anticipated hour of deposition.  And sending your client home with a stack of documents to review is no substitute for the face-to-face prep session.

Here is a basic outline and some tips for your deposition preparation session with your client.

• Start with the basic procedure.  Let the client know the who, what, when and where of the deposition.  Who will be present?  Explain the role of the court reporter.  Tell the client whether the deposition will be videotaped.  Explain the oath.  Go over the Q & A format.  Explain that you may be stating objections for the record, but that the client will have to answer the question except in the rare cases when you instruct him or her not to answer.  If this is the witness’s first depo, he or she will appreciate learning about the basics.  The client will likely have some anxiety and letting hime or her know what to expect will lessen the unease.
• Give a sample admonishment.  Come deposition day, it is likely that the lawyer who noticed the depo will start with a standard list of “ground rules.”  Explain these and let your client hear a sample admonishment during the prep session.  When the client hears these same standard instructions from the opposing lawyer at the beginning of the actual deposition, she or he will think “I’m prepared for this.”  That will calm any jitters and allow the client to focus on what’s important.  Don’t forget to ask your client during prep about medication he or she takes.  Medical conditions can be a sensitive issue, and if your client is taking prescription medication, you don’t want to the client to be surprised and embarrassed by this common question.
• Explain how the deposition fits into the end goal of “winning.”  Remember:  the deposition is opposing counsel’s opportunity to learn about your case.  If he doesn’t do a good job, is that our problem?  Of course not.  At the deposition of our clients, our strategy is defensive.  I often use the analogy that the depo is like a game of “20 Questions.”  If the questioner doesn’t ask the right questions, he loses.  But the first instinct of the client — especially if this is her first encounter with the other side — may be to attempt to:  (1) persuade the other side; (2) charm the other side; (3) argue with the other side; or (4) tell her entire story.  It is your job in prepping the client to get her to resist any of these common traps.  Cases are not won at the client’s depo, but they can be lost.  Let the client know that this isn’t the time to “tell her story.”  There will be other opportunities — including arbitration, mediation or trial.
• Keep answers short.  The best deposition answers — from the point-of-view of the defending side of the table — are the shortest, truthful answers.  Tell your client:  Don’t explain.  Don’t speculate.  Don’t help the opposing counsel.  Explain the difference between a “guess” and an “estimate.”  I use the example of the conference table:  “You may not know the exact dimensions of the table in this room, but you could give an estimate.  But if I asked you ‘How big is the conference table on the floor below?’ — your answer would be a guess because you’ve never been in that conference room.”  (If anyone one has another favorite example, let me know.  I’m always looking for fresh material.)
• The best deposition answers are the ones that answer the question directly and briefly.  For example, the proper answer to the question:  “Do you know what time it is?” is either “Yes” or “No” — but not “10 a.m.”  Why?  Because the latter answer volunteered information that was not called for by the question — a basic depo mistake.  Your client may protest that the deposition will take longer that way.  No one wants to spend any longer than necessary in a depo, and your client may think:  “I have nothing to hide. If I just tell the lawyer everything I know, we can all get out of here sooner.”  Wrong!  Every volunteered tid-bit will be written down by the opposing counsel and lead to another line of questioning.  Though counter intuitive to most clients, you must emphasize that shorter answers lead to shorter, better depos. 
• The “perfect” answers.  I tell clients that the only “perfect” depo answers (if they are truthful ones) are the following:

“Yes.”

“No.”

“I don’t know.”

“I don’t recall.”

“Can you rephrase your question?”

As for the last answer — “please rephrase” — tell the client to never answer a question he doesn’t understand. It’s the questioner’s job to ask understandable questions, and it’s dangerous to answer a question if one doesn’t know what it means. Explain the difference between “I don’t know” and “I don’t recall.” Some witnesses will overuse these two answers because they are easy. That mistake will come come back to haunt you at trial when the client’s memory and knowledge has been miraculously restored.

• Review important documents and all prior statements.  During prep, you and your client should go over all of the witness’s own prior taped or written statements on the subject of the lawsuit.  Deposition testimony that is inconsistent with prior statements can lead to uncomfortable cross-examination at trial.  And in prepping for the depo, don’t just give your client a stack of documents to review in his office or at home.  Having the client read them on his own — if he actually does it — is better than nothing, but not much.  You need to read and discuss the important documents with your client.
• Practice Q & A.  This is useful and should be done.  But if you anticipate that your client will be vigorously cross-examined at depo, get another lawyer to deliver the tough practice grilling.  For example, O.J. Simpson’s dream team — not lacking in cross-examination skills — brought in Berkeley criminal defense maven Cris Arguedas to do the deed.  Why?  Because being subjected to cross-examination isn’t fun.  Even knowing that this is “practice” and you’re really on his side, your client could easily resent getting the third-degree from his own lawyer.
• Don’t forget to review the “Top 10 Killer Deposition Questions” with your client.  Read my list of “killer” deposition questions in last week’s Lit Tip Of The Week.  And prepare for other expected tough questions.
• Videotaped depositions.  If you know the deposition will be videotaped, tell your client.  Instruct your client to dress in trial attire.  For men, that usually means suit or jacket and tie.  For women, a dress suit.  If your client has any distracting mannerisms (such as resting chin on hand or not looking at the questioner), tell her what they are and to resist them while on camera.  Also, if the depo will be videotaped, warn your client not to turn and look at you before answering.  This gesture makes the witness look like she is looking to her lawyer to tell her what to say.

Every case is different, so consider these rules as guidelines.  If you have a good reason to deviate from these suggestions — go ahead.  But you should at least know and understand the conventional wisdom before altering it.

The Top 10 Killer Deposition Questions

One of the prime reasons to spend the time and money to depose an adverse witness is to gather impeachment material.  Other than hiring a private investigator to delve into the witness’s past, the deposition is the most effective tool in the lawyer’s arsenal for uncovering dirt and chipping away at credibility.  That includes attacking an eye-witness account, challenging an unfavorable opinion, exposing bias, and undermining believability.

Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals.  In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim.  But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case.  Many times you will strike out.  That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam.  The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client.  And isn’t that the goal?

So here they are – the Top 10 Killer Deposition Questions:

• “Have you ever been arrested?”  (And the follow-up:  “Have you ever been convicted?”)  Opposing counsel may go ballistic on this one, but it is a proper question.  Remember, felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
• “Have you ever been deposed before?”  I ask this at the beginning of the deposition, as part of the standard admonition, when it sounds like an innocent inquiry related to the ground rules for the depo.  But if the answer is ”yes,” I always follow up later with questions about the prior deposition(s).  I also ask the related questions, “Have you ever testified in court?” and “Have you ever been a plaintiff or a defendant in another lawsuit?”  Prior testimony and lawsuits can be a treasure trove of accusations and impeachment.
• “Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?”  This question may uncover connections between a supposedly independent witness and the other side.
• “Did you meet with the other side’s counsel before this deposition?”  Pin down the number of meetings, where they occurred and how long they lasted.  This information can help dismantle the claim of independence.
• “Have you signed any written statements/made any recorded statements/spoken to any reporters about the events related to this lawsuit?”  To this list, you might add:  “Have you posted any statements about these events on any internet site?”  Of course, you will have conducted a search engine and, perhaps, database query on the witness as part of your preparation for the deposition, so you’ll know if he or she is lying.
• “Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?”  Okay, this is more than one question, but I had to combined them here to meet the 10-question quota imposed by the title of this article.
• “Tell me everything you did to get ready for this deposition.”  The answer can lead you to what the witness or opponent perceives as his or her weak spots, including areas of which you were unaware.  After all, it is only natural to prepare for the hardest questions or topics.  Remember to find out the specific documents reviewed, places visited and persons met with by the witness.
• “Was anyone else present when you met with your lawyer?”  If a third-party was present during the meeting, the witness may have waived the attorney-client privilege.
• “How did you find your attorney [doctor/chiropractor/therapist/expert]?”  This can lead to interesting prior legal issues, lawsuits or self-interest/improper involvement on the part of opposing counsel.
• “Do you have your driver’s license with you?”  If so, ask to see it.  Take down the personal information and, if appropriate, read it into the record.

That’s my “top 10″ — or so — general questions designed to uncover dirt.  Remember, there’s more to taking a deposition than impeachment.  For more depo tips, read Preparing Your Client For Deposition in Lit Tip Of The Week.

For honing overall deposition skills, I recommend two courses: the National Institute for Trial Advocacy “Deposition Skills” Training (17+ hours) and Robert Musante’s “Take A Killer Deposition” (full-day course).  I’ve taken both courses and received nothing in return for these recommendations.

Prepping The Client For The Emotions Of Litigation And Trial

Clients rely on their lawyers for many things beyond traditional legal advice and representation.  On top of the skills needed to engage the court and opposing counsel, lawyers must understand — and more importantly, prepare their clients for — the emotional side of litigation.  This part of the job is rarely covered in trial advocacy training, but the importance of this role was brought home to me at the end of a trial a couple of years ago.  I thought I had delivered an effective argument that defused our opponent’s case.  Instead of the praise I had hoped for, the client expressed her emotional upset at hearing opposing counsel’s relentless attack on her character and conduct.  This was an entirely natural reaction, but not what I had expected.  

Experience had taught me to anticipate and mentally prepare for the gist and force of the other side’s arguments.  I had failed to see things from my client’s perspective and therefore had not helped her to prepare emotionally for this phase of trial.  I haven’t made that mistake since.

The lawyer must take similar care at every stage of litigation.  Clients must be prepped to handle many things that may seem obvious or be second-nature to the trial advocate.  This list includes: 

• The mental exhaustion of testifying at a lengthy deposition.  It is more tiring than most people understand to maintain the mental focus needed during deposition.  Explain the importance of hourly breaks, even when the witness does not feel it is necessary.  The witness may not realize how much the depo took out of him or her until after the depo or later that evening.
• The often slow progress of a case during discovery and the pre-trial phase.  If a case is headed for trial, it can take two years or longer.  This is a marathon compared to the timeline for many business transactions that occur at a sprinter’s pace.  As every marathoner will tell you, pacing and mental preparation are as important to success as physical conditioning.
• The emotional roller-coaster ride of trial, as fortunes appear to shift dramatically from day to day.  As a defendant during trial, you need to tell the client that things will likely appear worse at the outset because plaintiff gets to put his case on first.  For plaintiffs, the client needs to understand the reverse:  defendant is going to have a chance to put on its best evidence after plaintiff rests.

The list goes on and on.  The key is to put yourself in the client’s position so that you can assist him or her to be mentally and emotionally prepared for the task at hand. 

As for the client who opened my eyes to this?  Well, she was vindicated when the jury came back unanimously for her, which compensated for the emotional ups and downs of the trial.  

Begin Your Trial Prep At The End

Where does one start when preparing for trial?  The best advice I ever received on this point came from Judge Charles A. Legge, for whom I was a law clerk in the federal courthouse in San Francisco.  He suggested beginning at the end, that is, the closing argument.

The reason for this is compelling.  In order to argue a point in the closing, the evidence on which the argument is based must be admitted during the trial.  Thus, the logical sequence for trial preparation is to start with one’s anticipated closing argument and from there develop the list of trial themes and evidence (testimony and documents) you will need to introduce at trial.  This list dictates the identity of the witnesses necessary to support your trial themes, provide your testimony and lay an evidentiary foundation for your documents.

The corollary, of course, is that if you don’t need the evidence to support your closing argument, it should not be introduced at trial.  Unnecessary evidence lengthens the trial and, worse, risks confusing the jury.  Extraneous evidence that you don’t mention in your closing could become the seed for a free-lance theory that germinates in the jury room and grows out of your control.

Pick The Best Day Of The Week For Your Motion Hearing

Do yourself a favor. Don’t set your big state court motion for hearing on a Friday. It’s not that judges are itching to get out the door (though that may be true). Fridays are always the heaviest motion day of the week in state court. The calendars are jammed with summary judgement motions because the code requires them to be heard no later than 30 days before trial (which ends up being a Friday).

Try Monday, Tuesday or Wednesday for your motion. On summary judgment, these days also give you up to two extra days to prepare your reply brief. That’s because you have to file your reply brief five calendar days before the hearing. If the hearing is on a Thursday or Friday, the fifth day before hearing falls on Saturday or Sunday (when the court is closed), meaning you have to get it on file by Friday. That short-changes you by one or two days. The same calendar math does not work for other motions, but Friday is still a bad day over-all.