The Plaintiff’s deposition in a personal injury law suit is the single most important event in a claim. This is usually the defense attorney’s (insurance company) only chance to directly question the Plaintiff. During a deposition the defense attorney is trying to accomplish three main goals: find back ground information in order to find information to destroy your claim, elicit inconsistencies in your testimony in order to destroy your claim, and/or to destroy your credibility in order to destroy your claim. Below is my top ten list of fatal mistakes that a Plaintiff must avoid in their personal injury deposition.
1. On a scale of 1 to 10 how bad is or was your pain?
This is a trick question that is designed to get you to respond with a 9 or 10. Many times it is set up with questions about your injuries and comments like “That really must have hurt” or “I can’t imagine how bad that must have hurt”. Without a definition of what level of pain a 1, 2, 3 ect is, it is impossible to accurately answer this questions. A skilled insurance defense attorney will turn a 9 or 10 pain level answer into the Plaintiff is exaggerating, malingering and trying to “win the personal injury lottery”. In answering this question always start with a 10 being the worst imaginable pain (having gasoline dumped on your and set a fire) and work backwards from there. Then most common injuries from an accident will be in the 5 to 7 range, something that is much more reasonable.
2. Are you in pain 24 hours a day 7 days a week?
No. No. No. No one is ever in pain 24 hours a day seven days a week. While I have had individuals grievously injured who were in some level of pain every waking moment, everyone has to sleep at some point in time. When you are asleep you are not registering that you are in pain. Therefore the answer is always NO. A YES answer to this question is devastating for the Plaintiff’s case, because the defense attorney will again show that the Plaintiff is exaggerating, malingering and trying to “win the personal injury lottery”. A much better response to the 24/7 pain question is, No, but, I do have pain most days when I …, or I have pain every day when I … or some other accurate explanation.
3. Is your pain level always the same?
Of the vast majority of injuries that a person can sustain in their lifetime, few would result in the exact same level of pain every day. Normally pain levels will fluctuate according to activity levels, pain medication, and other variables. Therefore it is important to accurately testify about differing pain levels. Sometimes a person will have no pain at all, until they begin to perform certain activities. It is ok to say there are times when you are not in pain.
4. Is there anything you cannot do as a result of your injuries?
This is a very dangerous question that is intentionally vague in order to elicit a long list of activities that an individual cannot do. Most injured parties would give a long list of daily activities that have been affected by their injuries. However, the question asks for activities that “cannot” be done, not activities that are affected. When a person says “I cannot run anymore” a skilled defense attorney will present it as the Plaintiff claims they cannot, absolutely, positively under any circumstances run anymore. If the plaintiff is caught on tape running just one time, regardless of the circumstances, the distance, the speed or the resulting pain, they are a liar. If a doctor does not confirm that they cannot run under any circumstances they are a liar. A much better answer to this trick question is “of course I could run, but” I cannot run as fast, or as long, or as far or as frequent, ect. In essence the injury has affected my ability to run not preventing me from running.
5. Tell me every injury, accident, doctor you have ever had or seen?
This question literally asks for every injury, accident or doctor. Not just trauma related, or recently related, but everything. If you tell the defense attorney about 15 doctors and forget about 1, then you can argue you simply forgot. If you tell the defense attorney about 5 doctors and forget about 10, you’re a liar, even if you forgot. So it is important to disclose every doctor, including hearing doctors, eye doctors, dentist, obgyn’s, family doctors, ER visits for any reasons ect. It is also important to disclose all these doctors, injuries and accidents when asked. I have seen some defense attorneys ask this question and then change the subject after one or two responses so that it looks like the plaintiff willfully did not disclose “all”. If the defense attorney does this you must say “wait” I have more injuries, accidents or doctors to disclose.
6. Time, distance and speed.
It is impossible for anyone to give accurate statements regarding the speed of their vehicle, the distance between events or the time between observations. No one who is driving down the road has a stop watch, a tape measure or is looking constantly at their speedometer in order to gauge events of an accident that may never happen in their life time. The best someone can do is give an educated guess. However, if you have any two of the variables of time, distance or speed, you can figure out the other variable. Therefore, guesses about time, speed and distance will never match up and will negatively affect your credibility. The best answer is to always be clear that you are giving estimates and then give ranges. I was traveling “about” “35 to 40 miles per hour”, it took “around 3 or 4 seconds to …”, “I traveled roughly 3 to 4 car lengths after …”. These answers will be much more accurate and factor in the uncertainties associated with guesstimates.
7. Avoid absolutes.
When talking about most things in life, absolutes are troublesome. I have “never” said …, I “always” do … When asked a question like have you “ever” had neck pain before this accident, an answer of “never” is very troublesome. Most people will have had neck pain some point in their life from sleeping wrong, working out, having a cold ect. When you say never, it means never. If a single incident is found where you complained of neck pain, you will be portrayed as being a liar. So always avoid absolute terms unless you really, truly, positively mean never or always.
8. Trying to hide bad stuff that you think will never come up.
In today’s computer age, it is not difficult to do exhaustive back ground searches on someone. Therefore, never try to hide bad information by thinking that it is not important, relevant or will be discovered. Many things like why you were fired from McDonald’s when you were 17 are not relevant. They will never be brought up in trial, but they are discoverable. When you lie about an event that is not relevant, you make it relevant because you put your credibility at issue. So always tell the truth.
9. Body movements during an accident.
The movement of a person’s body during an accident is very difficult to judge by the individual, because so many different factors come into play. I cannot begin to tell you the number of clients who have been in a car and rear ended by another vehicle who swear that they went forward immediately after an accident. In general, a person’s body is stationary in space in relationship to their car. When the car is hit, the body does not respond to the impact, it is the car that is being pushed by the impact in relationship to the body. Therefore, when a vehicle is hit from behind, the person’s first movement is backward in the seat as the car is being pushed forward from underneath them. When a vehicle hits another vehicle with is front end, the car abruptly slows causing the person to initially go forward.
10. Trying to out think the defense attorney.
The most common error by any person giving a deposition is trying to out think the attorney asking the questions. This is very difficult to do and commonly just distracts you from truthfully answering questions. When a deposition occurs, an attorney is not only looking for answers to questions, but is gauging your credibility, forthrightness, and your intelligence, all things that a jury will eventually do. If you come across as hesitant, combative or evasive, this will affect your credibility. So always simply tell the truth.
This list of the top ten traps to avoid in a personal injury deposition is designed to help educate victims of automobile, motorcycle or truck accidents. There are many other issues that may come into play depending on the circumstances of your case. Always discuss your case with your attorney in order to properly prepare for your deposition. If you don’t have an attorney, contact the lawyers at Rue & Ziffra, P.A.