If you have been involved in an accident and made a personal injury claim, you may be called upon to give a deposition. But the thought of having to give sworn testimony and answer questions from the insurance company’s attorney can be overwhelming. Many Portlanders worry that the insurer’s attorney will “catch’” them making contradictory statements that could jeopardize their claim.
One of the best ways to feel confident going into a deposition is to educate yourself beforehand as to what will take place. This article serves as a guide to the different stages of deposition and what to expect so you can prepare yourself accordingly.
What Is a Deposition and Why Does It Matter
If you have filed a personal injury claim in Multnomah County, you may be called upon to give a deposition. A deposition is a formal, out-of-court proceeding, where you, as the plaintiff, give sworn testimony and provide answers to questions posed by the defendant’s insurance attorney.
Under Oregon Rules of Civil Procedure (ORCP 39), a deposition is a critical part of the discovery phase. A deposition is not the same as courtroom testimony. While both involve giving a sworn testimony, a deposition and testifying in court are quite different. A deposition occurs during the discovery (investigation) phase, and courtroom testimony is given during the trial phase.
Depositions are given in personal injury, medical malpractice, wrongful death, and other civil cases. Oregon law follows ORCP 39 for oral depositions and ORCP 40 for written depositions. Attorneys rely on depositions to uncover facts and lock in testimony. The statements given can also be used at trial, and any inconsistencies between deposition and courtroom testimony can damage credibility. Even so, depositions can prove invaluable as they help a plaintiff’s attorney evaluate the strength of the case and how to go about negotiating settlements. Conversely, the defendant’s attorney uses deposition testimony to assess the claim’s value.
Who Is Involved in a Deposition?
Several parties are often involved when a deposition takes place.
The Deponent (Person Being Deposed)
The deponent, or person being deposed, can be you if you are the plaintiff, a defendant, a witness, a medical expert, or a corporate representative.
The Attorneys
During the deposition, the attorneys for both sides are present. While your attorney will defend the deposition, the defendant’s legal representative will ask questions.
The Court Reporter
The duties of the court reporter include swearing in the deponent and creating a written transcript of the proceedings.
The Videographer (If Applicable)
In some cases, depositions may be video-recorded, especially if the witness may not be available to testify at trial.
What Happens During a Deposition and Common Questions Asked
Most individuals who are called to give depositions have questions about what will happen during the proceeding, and some of the common questions that are asked.
Before the Deposition Begins
Depositions are usually held in a law office or conference room, not the courtroom. Before the deposition begins, the court reporter administers the oath. When you are under oath, you swear to tell the truth under penalty of perjury. The opposing attorney then states preliminary instructions on the record.
The Questioning Phase
During the questioning phase, the opposing counsel will ask questions about the accident. Common questions include those regarding the accident, your injuries, medical treatment, and the impact on your daily personal and work life.
Objections and Breaks
During questioning, your attorney may object, but in most instances, you will still be required to answer. Under Oregon law (ORCP 39 C), objections are typically preserved for trial. While you are allowed to request a break, the proceedings are not paused until you have answered a pending question.
After the Deposition
As the deponent, you may request a review and signing of the transcript within 30 days after the deposition is completed (ORCP 39 C). The Oregon rules of civil procedure allow you to make corrections, but any substantive changes may be addressed at trial.
Some questions that opposing counsel may ask you include:
- “Can you state your full legal name and any other names or aliases you have used in the past twenty years?”
- “In the five minutes leading up to the accident, were you using your cell phone, GPS, or interacting with the vehicle’s entertainment system?”
- “Have you followed every treatment recommendation made by your doctors, including physical therapy, and if not, why did you miss those appointments?”
- “How has your ability to perform your job changed since the accident, and have you received any formal reprimands or changes in your pay because of these injuries?”
- “Before this incident, did you ever experience pain or receive treatment for the same body parts involved in this claim, such as your neck, back, or shoulders?”
You should also be aware that opposing counsel also has the right to ask questions about your social media posts.
How to Prepare and Common Mistakes to Avoid
To ensure that you feel confident and avoid common mistakes when it comes time to give your deposition, there are specific actions you can take to prepare yourself. The most important step is to meet with your attorney well in advance to review your case, medical records, accident reports, and prior statements. Your attorney can also advise on appropriate attire and conduct
It is also best to practice answering questions honestly and in simple terms.
Some key tips to keep in mind when giving a deposition include:
- You will be under oath, so you must tell the truth.
- Stay calm and composed, even if opposing counsel is asking aggressive questions
- Do not argue with opposing counsel.
- Answer a question only when asked, and do not ramble or volunteer extra information.
- Do not guess or speculate, say “I don’t know” or “I don’t remember.”
- If you do not understand a question ask for clarification.
- Avoid discussing the case with anyone other than your attorney during breaks.
How Deposition Testimony Affects Your Case
Insurers use depositions to uncover inconsistencies they can use at trial. Accordingly, providing strong and accurate testimony during deposition can increase your financial recovery. Conversely, a poor performance during deposition can lead to a reduction or dismissal of your claim. One of an insurance adjuster’s primary duties is to review deposition transcripts to evaluate the strength of claims.
If you have an upcoming deposition and need experienced legal representation, contact Tillmann Law today at (855) 503-5035 to schedule a free consultation.
