Ep 152: Inside a Deposition – Preparation, Traps, and Telling the Truth

Clark: I’m Clark Speaks, the catastrophic injury lawyer. Welcome to the verdict. All right, welcome back to Catastrophic Comeback. I’d like to continue my conversation with Jeff Watson. Uh, Jeff, let’s talk about depositions. Uh, we’ve heard about depositions. Everybody’s seen depositions and heard about depositions in the movies and, uh, the news and all kinds of stuff. What’s a deposition and how does it relate to what we’re talking about?

Jeff Watson: So deposition is where you, uh, send notice to the other side that you want to interview one of the, one of their witnesses, one of their employees. Maybe it’s the defendant who was driving the car that hit our client. Maybe it’s the homeowner that owned the dog that attacked our client’s child. But, you know, whoever it is, and maybe it’s an expert witness on the other side, but whoever it is, we’re sending notice the other side, we want to depose this particular person. Uh, and we can send sometimes with that, if it’s a business, certain documents and things that they have to produce at that deposition. So what happens is, uh, we, we meet at, ah, an agreed to place at an agreed to date and time, and we have a court reporter who’s hired to come in there, and they’ll come in with their machine, and they’re typing up everything that said. Uh, you know, we go through a process of starting from the beginning and going all the way through until we’re satisfied that we’ve. They’ve answered all the questions that we want.

Clark: And it’s under oath.

Jeff Watson: It’s under oath. They’re sworn in the court. The court. The reason the court reporter is typing it all down is because they’re going to produce transcripts of that that we can then take to trial. And if that witness gets on the stand and says something different, we can pull out that deposition, say, well, right here, you said this today. You’re saying that that’s not the same thing, you know, and we can point that out to the jury and, you know, sometimes we can tie them down to their, their, their prior statement, um, and they’ll do the same with us. They’ll say, well, your clients filed a lawsuit against us. Like, we want to depose them. And they’ll start asking questions about their prior medical history and what do they do in the accident that day and what kind of treatment do they have, and, you know, about their lost wage claim and the different, the different elements of the claim, and they’ll try to get our client to be tripped up. Uh, so there’s a preparation process either to make sure we’re asking the right questions over the other side and asking the right people, make sure we’re getting the right people. Uh, but there’s also a defense side. We become almost like defense attorneys to some extent. We’re defending our client and making sure the other side doesn’t abuse them or trick them or, you know, get something out of them that’s helpful. So we’ve got to prepare our clients for those depositions.

Clark: So if I’m understanding you correctly, uh, a deposition. Let me. Let me. Let’s recap. So a deposition is going to be a chance for the lawyers to ask questions of the witnesses involved. And the different witnesses might be plaintiff, uh, a defendant, a fact witness, an expert witness, which may be a medical expert or a, uh. Or like a scientific expert, like an accident reconstructionist. But they’re going to, you know, during those, they’re going to ask, uh, a series of questions about, um, uh, all kinds of things. Give me an example. What are. What are. What. What’s the. The general flow of how these depositions work in terms of, uh, you know, how long might they take and. And, uh, what are some of the questions that might be asked?

Jeff Watson: Well, I mean, the length of depositions varies on who it is you’re opposing.

Clark: Um, you know, sometimes on the lawyer doing the deposition, right?

Jeff Watson: Sometimes, yeah. I mean, you know, I’ve had depositions that lasted an hour because they were deposing my client. My client was well prepared. They couldn’t get much out of them, and they just wrapped it up and went home. I’ve also had depositions that went all day where you’re deposing some medical expert on something very, uh, difficult to explain, difficult to understand. And so it just takes a long time to kind of flush out all of that information. Um, and, you know, so we’re asking questions about, like, who are you? Where do you live? You know, just basic questions, identification, uh, questions. What’s your experience with this? Uh, and then we’re going into what happened on, you know, the day of the accident. You know, here’s where you were. You were doing this, you were doing that. You know, and we’re trying to pull out the facts of what happened and what they were thinking, what they were seeing, how they reacted. Um, and then we’re going into other things. Uh, as you ask questions, other questions arise. Uh, they may make a statement that you want to come back to. So we’re taking notes, and we come back to that question later and ask Them. Um, so sometimes you have to sort of chase a trail this way and then come back to the main part and keep going. And then you get on something that’s helpful and you chase that down and then you come back and, you know, but you got. So you got to stay organized. You know, you’ve got to have an idea of what you’re trying to get out of that particular deposition. Sometimes we’re defending them, sometimes we’re taking them.

Clark: What are the ways in which plaintiffs can prepare for their deposition?

Jeff Watson: Well, I mean, uh, so, you know, when I’m trying to prepare our client for deposition, I’m trying to anticipate what I think the other lawyer is going to ask, you know, so you go through with your client, you know, about their medical treatment, what doctors they saw, uh, what the injuries were. You’re trying to look in those medical records and find things that might be harmful. Like on this day, you went to the doctor and you said your pain level was 1 out of 10. They’re going to see that. They’re going to make a big deal and try to say you weren’t hurt. So here’s, you know, how would you respond to that? You know, here’s a way you could respond to that. We’re trying to work with them to make sure the, you know, that they’re prepared for. When the attorney brings that up, they’ve got a good response to that. Um, you know, we’re going through the facts of the accident, what happened, what do they see, you know, trying to make sure that they know how to answer it. Lawyers are crafty. I mean, they. That’s why they are lawyers. That’s why insurance companies hire them, because they, they’re smart and they want to come in and they’re going to ask questions. They’re going to try to get our client tripped up so that it hurts their case or hurts their credibility. So I have to anticipate everything I think that lawyer is going to ask that could hurt my client and make sure my client is ready. So when that question’s asked, they got a good response.

Clark: My experience is a lot of times that the lawyers, defense lawyers, will start off asking really sort of easy questions, right? Uh, where’d you grow up? You know, uh, where’d you go to school? Where’d you go off school after that? Where’d you go off school after that, Where’d you go to school after that? Then, um, they’ll ask, uh, you know, what kind of jobs have you had? Uh, what was your first job? Your Second job, your third job. And, um, you know, and they can go into such detail, you know, if I’m the person who’s, uh. The plaintiffs sometimes are just like, what does this have to do with my. What’s the limit on what they can ask you?

Jeff Watson: Well, it has to be something that is either going to be relevant or something that could lead to relevant evidence. Um, so there’s a pretty wide latitude there to ask questions. Ah. About people. You never know when they answer something. They might, you know, they might say in their work history that they did this particular job and that job gave them an expertise. And that expertise might. Can be applied to the accident. You know, like, if you’ve done that for 20 years in a factory, why did you not know to do that here in this factory? You know, and so you never know. Some of those innocent facts, so to speak, aren’t so innocent. Sometimes they can come back and bite people. And defense lawyers will try to be nice. They’re generally cordial and friendly. They want to disarm our clients, make them relax. Sometimes they’ll use silence. Like that. Silence that was a little awkward and uncomfortable. Sure.

Clark: Yeah.

Jeff Watson: And it makes you want to talk, right? Because you don’t want to hear the silence, you know, so there’s strange.

Clark: You just want to keep going and just hammer on about whatever.

Jeff Watson: Yeah. And the more our client talks and thinks they’re saying things that are innocent, the more information they’re giving the other side to come after them.

Clark: So. And. And so, uh, some of this. Sometimes people lie, right? Defendants lie. I’m sure there’s plaintiffs that have lied. Um, uh, uh, sometimes people lie, but sometimes it’s a matter of, hey, this thing happened two years ago. I don’t necessarily remember every detail, or I might have a, you know, have something turned around. Um, like, for example, I just went, uh, somewhere with my wife. I came. Uh, we had been there a few years before, and I was like, you remember, this is the place where this happened. And she’s like, uh, well, I wasn’t with you when you were here. I was like, yeah, you were. And I was like, remember this? And this. And this happened? And. And she was like, yeah. I mean, this happened. But I wasn’t with you, you know, because we were talking on the phone, and I’m like, listen, I can appreciate, you know, we all make mistakes. But it turns out she was 100. Right? We went back, and I looked at the pictures. I’m like, man, you weren’t here. And I wasn’t lying. I Just, it was two years ago and I forgot. So some of these are innocent, you know, uh, um, sort of, you know. And so in, in terms of preparation, what my experience is, the best way to prepare a plaintiff for a deposition or any expert is to take every statement that that person has ever said about that, you know, for whether it was the accident report, whether it was a recorded statement, whether it was a victim impact video, whether it was interrogatories, uh, whether it was the pleadings, uh, whether it’s request for admission, production documents or whatever, and make that available to them and then say, and then go through it with them and say, these are the things that we’ve, uh, said in the past. So, so I’m not going to ever say anything but say the truth. But if the truth is different from something here, be able to explain why that is. Because, you know, you know, most people are going to, you know, uh, for example, in our fee, uh, agreement, it says to them, representation agreement, it says that if, if we feel like you’re faking it or you’re not really hurt or you’re, you know, saying something’s not true, then we’ll get out of your case immediately. So that’s not. There’s never going to be a time when we’re, uh, uh, participating in somebody that’s, that’s trying to say something’s not true or.

Jeff Watson: Yeah, definitely, or whatever. So we, we always want people to tell the truth. Sometimes telling the truth means that you have to admit to something that’s harmful, um, but it’s worse if you don’t, and then they prove that fact later because now your credibility shot, you know, is. Juries are just made up of people, right? They’re made up of people in this particular locality. And, you know, they themselves know that they’re not perfect people. Everybody makes mistakes, you know, so people are willing to forgive a mistake they’re not willing to forgive. If you lie to them now, you really lost the trust, you know, so we got to have people tell the truth, just maybe explain that truth, uh, in a good way and it’s okay. Also, you mentioned, you know, you can’t remember stuff and it’s okay to say, I don’t remember. Uh, that’s better than trying to say something that’s wrong, you know, uh, you know, sometimes when I’m deposing another witness and they’ll say, I don’t remember, you know, then I’ll, I’ll try to find a document or something that’s been in the past that I can refresh their recollection with it. Well, take a look at this photograph right here of the scene, you know? You know, look at that. And does that refresh your recollection of what the scene looked like? You know, know. So sometimes you can tie people down that way. But with our clients, we always make sure they’re telling the truth, because at the end of the day, if they’re not, it will almost always come out.

Clark: And really what we’re wanting is justice, right? We’re not looking to try to take advantage of somebody else and get something that doesn’t belong to us or we’re not entitled to. We’re looking for justice. So if that means, you know, hey, we have to admit that you were not working, uh, and you hadn’t been employed for a period of time and that’s the truth, then so be it. You know, uh, if. If that means that you could go back to work in the future, but now you can’t, then we need to be able to tell. So, so, so it’s not so much a matter of, uh, obscuring or withholding the truth. That’s important. It’s a matter of telling the whole truth and telling the whole story for our client and making sure we do that in a way that is honest, uh, and credible and effective. Um, let me ask you this. One of the ways, one of the things that happens during, during, ah, a deposition is we have to m. Uh, as lawyers, make objections to some of the questions that are being asked, right? And some of the things that occur to me are, um, you know, questions that sort of, uh. Well, there’s two things that happen. You alluded to it earlier. Um, clients will, I mean, plaintiffs will volunteer all kinds of, uh, extraneous information that just wasn’t asked. You know, and so my instruction is always, hey, like, if I’m, um. If I’m in the deposition and I say, do you know what time it is? Then the answer to that question is either yes or it’s no. It’s not two o’. Clock. You know, that’s a different question. So answer only the question that’s being asked, you know, and then. And then the other thing is, they’ll say, um, they’ll ask a question that assumes an answer, right? So they’ll say, well, you know, uh, for illustrative purposes. Illustrative purposes, they’ll say, you know, does your wife know you’re a jerk? Um, that’s really two questions, right? Because it assumes that you’re a jerk and it assumes that you’re, you know, you’re asking, does your wife know about it? And so those are compound questions where I, as a lawyer need to get in there and say, uh, um, uh, objection. That’s a compound question, you know, and then, uh, what, what are the other kinds of pitfalls or what are the kinds of pitfalls that you see that cl. Clients can get in, get, can make mistakes when they’re in these depositions?

Jeff Watson: Well, you know, sometimes lawyers will ask things, uh, and, you know, the client will give a good response. The lawyer’s not satisfied with that. They think that there’s something more there, and so they start asking the question the same question about ten different ways. Uh, so a lot of times I’ll object and say, that’s asking. You’ve already asked it and they’ve already answered. Uh, we’re not answering that. Again, like, move on. Um, generally, if, if, if I’ve studied my case well, which I, I, I like to think I always do, I know where the other screen is going to go. I know where the pain points are for my client and, and I can hear the question asked and know when it’s going to be a problem, what they’re getting at, what they’re getting at. So a lot of times I can object and, and you know, uh, and sometimes in my objection, I can, you know, let the client know what’s going on. You know, I can say, you know, objection, you’re asking about this. And you know, they only know about this. And so now the client, when they re ask the question, the client’s like, well, I don’t know about this. You know, I mean, I’m right, I’m helping them with their response by my objection.

Clark: Right? Get. So give them the, the time and the space and the, in the, uh, heads up to know, hey, this is what this guy is trying to, to say. So answer your question completely so that, so that we can cover, uh, the topic that is being asked. Yeah. So. Okay, well, great. Uh, well, Jeff, thank you for talking to me about depositions. I appreciate it. We’ll be back. Thanks for joining us. Don’t forget to subscribe and follow us to stay up to date with our weekly episodes. We’ll see you next time.

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