3 Personal Injury Testimony Mistakes That Can Ruin Your Case

You’ve been preparing for your day in court for months now, and the day is finally here. You’ve been warned by your attorney to stay calm and respectful in court, and to repeat your testimony as accurately as you can. But you’re still nervous about what the opposing attorney will do in court to protect his client—and if he gets you off-balance, you could very likely help him destroy your case.

Three Major Personal Injury Testimony Mistakes to Avoid in Court

Unfortunately, your fears are well-founded. Plenty of witnesses trip over their words on the stand, allowing opposing attorneys to discredit them and deny them their rightful settlement. Here are three ways you can hurt your case on the stand:

  • Not answering the question you are asked. Do you know what time it is? If you answered “afternoon,” “3 p.m.,” or even looked at the clock, your case is at risk. Too many witnesses ruin their depositions by trying to be too helpful to the attorney asking questions. A seemingly simple question can reveal many different facts, so you should only give the specific information you are asked for. So if you are asked if you know the time—and you do—state “yes.” If the attorney wants to know more, he must ask for it.
  • Allowing yourself to be bullied. Witnesses are often encouraged to cooperate with opposing attorneys. While you should always be polite and respectful, you should not allow the attorney to pressure you into giving an answer that isn’t completely correct. If an attorney is pointing you toward the answer he or she wants, do not give in if the answer is inaccurate. If he repeats the question several times, stick to your answer; consistency will only strengthen your case.
  • Filling in the blanks for the opposition. Opposing attorneys ask questions that are designed to get information that will help their client. In a sense, they are trying to get one side of the story—and witnesses often object to this type of questioning. They think that the jury will base its decision on the facts presented by your opposition, so they offer additional information to fill in the blanks. When you are on the stand, do NOT attempt to argue your case or present your version of the facts. Anything you say becomes part of the record, and the attorney can ask follow-up questions about any facts you offer. For example, imagine you are asked whether an event took place on a particular day. You respond that you are sure because you went to a friend’s birthday party that same day. The attorney may follow up by pointing out your attendance at a party is inconsistent with your testimony that you were “unable to move” after an accident.
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When Should a Witness NOT Answer a Deposition Question?

You Don’t Have to Answer Every Deposition Question (And In Some Cases, You Shouldn’t)

Your attorney has prepped you for your deposition. You’re pretty clear on what will happen, who will be present, and what you should do if you are unable to answer a question. But what if you can answer a question, but you don’t think you should?

This is a typical occurrence at many depositions. While the deposing attorney will ask questions that are relevant to the case, they may also repeat questions to make sure your answers are consistent, or ask questions that are meant to embarrass or enrage you. Often, these questions will be damaging to your case if you answer them truthfully—and of course, you have sworn to do so. So what are your options?

Which Questions Shouldn’t I Answer in a Deposition?

You can object to any questions in a deposition, but you may be compelled to answer if a judge overrules the objection in court. In many cases, questions that do not have to be answered fall into three categories:

  • Private information. You have a right to refuse any questions about a person’s health, sexuality, or religious beliefs (including your own). The opposing attorney will have to explain how your answer has a direct bearing on the case in order to compel you to answer.
  • Privileged information. Confidential conversations that take place between a doctor and a patient, you and your psychiatrist, a lawyer and his clients, or a confession given to a priest are examples of privileged information.
  • Irrelevant information. Any question that you think is improper or does not have any bearing on the outcome of the case may be irrelevant. If one of these questions is answered, your attorney will likely stop you from answering and object on your behalf. If he does not, you may object to the question yourself.

How Can I Tell Which Questions Are Irrelevant?

If you aren’t sure what the point of a question is, stop and ask yourself if the answer could have a bearing on how a judge would decide your case. For example, you may not wish to answer questions about your living situation, but a judge may need the information to decide which home is best suited for child custody. Just because the answer could be unsettling or be used against you does not mean it is not relevant to the case.

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Expecting to “Win” a Child Custody Deposition Can Hurt You

Child custody is often the most difficult and emotionally taxing part of a separation. While you and your spouse have decided that a divorce is the best option for both of you, nothing will ever separate you from your children—but unfortunately, your spouse seems to share that opinion. Your ex may even have threatened to play up the negative aspects of your potential custody—long hours at work, an uncertain living situation, an unstable career choice. Unfortunately, these “playing dirty” tactics can have lifelong consequences for you and your children, and retaliating can make matters even worse.

What Should I Consider Before I Attend My Divorce Deposition?

You and your spouse may have attempted to work out a custody deal on your own, but weren’t able to reach an agreement. These arguments can turn bitter, even hostile, to the end that nobody is happy with the outcome—least of all, your children. Before you enter your child custody deposition, consider what “winning” may mean:

  • To you. You must look past your own needs when deciding custody. If you want your children to live with you merely because you want to make your ex unhappy, don’t do it. If you want partial custody, but cannot realistically make time for your children, reconsider. Evaluate not just what you want, but why you want it.
  • To your children. Your children will likely be torn in different directions during a custody battle, so you should make the transition as easy as possible. You and your spouse will have to get along after the divorce, at least at a cordial level, in order to ease the stress on your kids. Avoid making comments about your ex in their presence, and let them know that you will always be available to them, no matter with whom they live.
  • To your spouse. Children are a lifelong commitment, and like it or not, your spouse shares half of that commitment. You will have to see, call, visit, and endure your ex-spouse as long as your children are living, so avoid burning your bridges. A little courtesy can go a long way.
  • To your partner. If you have entered into a serious relationship with a new partner, you should have an open and honest conversation about children before agreeing to a custody arrangement.
  • To the family. The people involved in this separation are your family. You need to come out with workable arrangement that holds up for the foreseeable future, with room for improvement if your situations change. If it is in some way beneficial to everyone, you have “won.”
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The Documents You Bring to a Deposition Can Hurt Your Case

You may have learned the old Boy Scouts maxim: Be Prepared. It’s helped you a lot throughout your life, and while your attorney does a fine job of protecting your interests, you figured it couldn’t hurt to give him a hand by backing up all of your arguments with paperwork. After all, this is a great way to show opposing counsel that your case is airtight.

Sometimes, Too Many Documents May Actually Hurt Your Deposition

Or so you thought. What you may not know is that bringing too many documents to a deposition can actually be detrimental to your case. Here are a few examples of common types of documents, and how they can play out in the course of your deposition:

  • Documents to be produced. These are any documents that you have been instructed by your attorney to bring with you. You should always bring three copies of each document: one copy for opposing counsel, one for your attorney, and the last for your reference. You should also bring the original document in case the copy is of poor quality or the accuracy of the document is called into question.
  • Unauthorized documents. You should not bring any notes, diaries, or other records to help you state your case during a deposition unless they have been thoroughly reviewed by your attorney. This is because any document you produce may be examined by the opposing counsel, and can potentially be used against you. For example, if you use your personal schedule as evidence that an accident occurred on a specific date, opposing counsel may note that you attended a meeting in D.C. days later, calling the severity of your injury into question.
  • Documents not produced. If an attorney asks you to confirm something based on evidence, you should ask him to produce the document for confirmation. Do not offer to supply the information yourself; you should not even produce your driver’s license, ID, or other personal items without your attorney’s consent. If you are asked to respond to the information presented in a document, examine it carefully. If you have never seen the document before, do not vouch for the accuracy of the information listed. If you don’t understand what it says, don’t try to guess at its meaning.

Was your case derailed by a paperwork error or by misinterpretation of the evidence?

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What Is the Point of a Deposition? It Depends Whom You Ask

Getting Your Story Straight Is Just One Goal in a D.C. Deposition

You’ve been told what to wear, how to act, and actions to avoid in order to prepare for your deposition. But now that you’ve got the basics down, you find yourself wondering: why do you need to go through a deposition at all? Wouldn’t it just be easier to stand in front of a judge and have him make the decision in your case?

What Is the Point of a Deposition?

The fact is that depositions are the most efficient way to gather fact in a case, allowing the judge to make a more informed decision and reducing the time that all parties spend in court. While that may be the overall point of a deposition, each person involved in the process will have different goals. The opposing counsel (the person who will be asking you questions) will aim to answer these questions at a deposition:

  • What happened? An opposing attorney will want to know which facts you have in your possession, and which you will be able to present at trial.
  • What is your story? Counsel will ask questions to establish your version of events, and may try to ask similar questions multiple times to make sure your story is consistent. Knowing each person’s version of events in advance will allow counsel to prepare questions during trial to find out what really happened.
  • Is your story credible? After you sign your deposition, you are attesting that everything you said is true. If you use language that can be misinterpreted, opposing counsel may attempt to catch you in a lie to attack your credibility. If you are seen as untrustworthy, the jury may rule against you.

The assumption that a deposition is only a fact-finding mission is not necessarily true; it is every attorney’s job to do the best he can for his client. If opposing counsel can prompt you to give an emotional response to a question that will make his case stronger, he will likely do so. However, your attorney may do the same for the opposing client in order to protect your interests.

The number one goal you should have during a deposition is to remain calm. This will allow you to think carefully about your answers and give only the facts.

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Avoid These Four Common Mistakes in Your Deposition Answers

What, When, and How You Answer Can Affect Your Deposition Testimony

One of the worst mistakes people can make in a deposition is forgetting that how and when they answer a question can be just as important as the words they use. If you want to make sure that your testimony is the best possible representation of your side of a case, remember these four tips as you enter the deposition area:

  • Hold the conversation. If you arrive a few minutes early to your deposition, you may be tempted to chat with the receptionist or opposing attorney. However, just answering a simple “How are you?” with an automatic “I’m fine” could hurt your case if the attorney asks how you described your condition to the person at the front desk this morning. This is why you should never discuss any aspect of your case with anyone until the deposition has started (and refrain from doing so after the deposition is complete).
  • Wait to respond. You should always wait until a question has been asked completely before attempting an answer. If you interrupt the opposing attorney, you may give a responsive that is not completely accurate. The best way to make sure that your answer matches the question being posed, repeat the question word-for-word in your head before answering. Don’t be afraid of taking the extra time to respond; it is more important to be accurate in your answers then to leave the deposition early.
  • Say it if you mean it. Giving non-verbal answers can be a hard habit to break, but you must always respond verbally in a deposition. First, the court reporter can only record what is spoken, and a non-verbal response will almost always need clarification (requiring a pause in the deposition). In addition, a nod, head shake, or shrug may easily be misconstrued by members of the court.
  • Remember body language. In addition to what you say with your mouth, you should be constantly aware of the messages you are giving with your body. Slumping in your chair gives the impression that you don’t care; leaning on the table because you are tired can make you seem disinterested. If you are unable to get comfortable because you need a break, tell your attorney and he or she will pause the proceedings.
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How should I answer questions about my injury on the stand?

Many witnesses are often worried about the questions they will be asked in their personal injury cases, particularly questions about the injury itself. In most cases, attorneys are limited to asking questions about the accident, your injuries and diagnoses, your treatment plan, and your abilities as a result of the injury. However, the way these questions are asked can have a significant impact on the outcome of your case.

How to Answer Questions About Your Injury on the Stand

Here are some things to remember as you respond to injury questions in court:

  • Stick to facts. Don’t try to give an answer that can’t be measured. The question “how much pain were you in?” is hard to place a value on since all people perceive pain differently, so any answer you give will be vague at best. However, describing which activities you could and could not do is a factual answer and gives the jury a better picture of your limitations.
  • Don’t “sell” your case. When you are asked about your injury and treatment, it is important that you answer each question one at a time. Don’t give a long-winded answer about the doctors you saw, the visits you made to hospitals, or how your treatment has affected you. Give yes or no answers whenever possible.
  • Don’t exaggerate. Avoid trying to convey to the jury how tired or in pain you were after the injury. Remember: any answer you give can be backed up with facts. If you attest that working after surgery was extremely difficult, but you were able to complete tasks from home, the jury may not believe that you were as limited as you say.
  • Don’t try to outwit the opposing attorney. Too many witnesses try to “head off” an attorney who is asking a particular line of questioning. For example, if you injured your right hand in a car accident, the opposing lawyer may make a point of confirming that you are left-handed. Don’t attempt to defend your injury by explaining how you use your right hand; your attorney’s questioning should make your limitations clear.

Your attorney should thoroughly prepare you for questions before you take the stand, but it never hurts to get as much information as possible before your D.C. court date arrives. Find out which mistakes can ruin your case by reading the related links on this page.

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What is a deposition?

You may have been told that you will have to attend a deposition before your case goes to trial, but what is a deposition? Simply put, a deposition is a question and answer session led by the opposing attorney in your lawsuit. Your answers will be given under oath and recorded by a court reporter.

It is common for witnesses to have had no contact with attorneys other than their own counsel. This leaves them unprepared for the nature of questioning that takes place in a deposition. It is important to remember that opposing counsel is not on your side. His job is to learn any information in your case that he can use to discredit you or make you seem like an unreliable witness.

An opposing attorney will typically have three goals when deposing a witness:

  • To find out what you know. The attorney will ask questions designed to find out how much you know about your own story, without giving away any valuable information in his possession that could be helpful to you.
  • To shape the story. Attorneys can repeat your answers back in a way that minimizes damage or benefits his client, which you may have to challenge and restate.
  • To find an inconsistency. Opposing attorneys will often highlight problems or errors in your story as evidence that none of your testimony can be trusted.

The best thing you can do to protect your case in a deposition is to keep calm and stick to short, truthful answers. Remember, the attorney will give his client a recommendation on whether to settle or fight the case based not just on your answers, but also on his impression of you as a witness.

To find out more about what happens in a deposition, click the related links on this page or call to inquire about our video deposition services.

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What questions will I be asked in my divorce deposition?

An opposing attorney could ask any number of questions in your divorce deposition. Some are relevant to the facts of your case, and some are not—but if you choose to answer them, all of them can be used in court. Here are a few topics that may be brought up during your deposition.

  • Children. If your case includes a custody dispute, you should be prepared for questions about your children’s friends, interests, doctors, schools, needs, and health.
  • Personal details. You may be asked about any personal relationships, clubs, or memberships that you belong to and the roles they play in your child’s life.
  • Marriage finances. Your spouse’s attorney may attempt to discover if his client is entitled to your earnings. These questions may include whose money was used for different expenses during the marriage, how much your expected income will be in the future, if you supported your spouse in the past, what you were each making at the start of the marriage, and if you ever told your spouse that you did not want him or her to work.
  • Employment. What kind of hours do you work? This may seem like a simple question about your job, but it could influence your suitability as a full-time parent.
  • Health records. You may be asked questions about your mental and physical health. This includes any insurance you may hold (life, disability, home/rental, etc.) and who is named as your beneficiary.
  • Property. If you are splitting the furnishings of your home, you may be asked to read through your asset list and explain how you arrived at the estimated values.

Remember: an opposing attorney is looking for answers, but the way you respond to a question can give him more than just the facts.

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What to Do (and NOT to Do) & Say In Your Virginia Divorce Deposition

It was a difficult decision to end your marriage, but at least you thought it would be smooth sailing after the divorce papers were filed. Unfortunately, what should have been the end of your relationship was only the beginning. You and your spouse seem to disagree on almost everything, and you’ve both hired lawyers to help you separate—but you’re wary about what has been said to the opposing attorney.

As you prepare for your divorce deposition, the most important thing you can do is be aware of the motives and tactics used by the opposing counsel. You may be asked questions about your finances, children, living arrangements, and property, all of which can be points of contention in a divorce. Here are a few “do’s and don’ts” on giving an effective testimony in your divorce deposition:

DO:

  • Stay calm. Take each question one at a time and give honest answers.
  • Be brief. Keep your answers short and to the point.
  • Stick to the facts. Avoid giving your opinion or using words that describe your feelings about the question.
  • Heed your attorney’s advice. If he says not to reply, don’t give an answer.

DO NOT:

  • Answer more than the question requires. Avoid telling a story or giving information that wasn’t asked for in your answer.
  • Offer additional information. Opposing counsel may ask a question that you can verify with witness testimony or documentation. However, you should not volunteer your sources—it’s his job to find proof of your answers.
  • Make guesses. If you do not know the answer to a question, tell the attorney you don’t know rather than make a guess.
  • Say anything you don’t want heard. Some witnesses may ramble if they’re nervous, or think out loud while attempting to answer opposing counsel’s question. You must be aware that everything you say is being recorded, whether it is relevant to the conversation or not.
  • Argue with opposing counsel. The attorney asking questions needs information, but he may also try to rattle you in an attempt to start an argument. This can result in your giving away additional facts that can be useful to his client.
  • Lose your temper. If you become angry, frustrated, or overwhelmed, you are more likely to reveal information that can be used against you. If you feel like your emotions are getting the better for you, ask for a break.

While these tips can help your appointment go smoothly, they are by no means the only things you can do to prepare for a divorce deposition. Click the related links on this page to find out what else the opposing counsel will be looking for during your testimony.

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