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There are many areas where a Plaintiff [the person who is hurt] can destroy his/her personal injury lawsuit. However, the two easiest areas are their deposition and in their live trial testimony. Since most cases settle and forego a trial, the practical importance of making through your deposition becomes paramount. This article is devoted to fundamental concepts that should be followed at a bare minimum to achieve a successful deposition experience. The answer to the above question is not just yes ……but heck yes! The deposition preparation of the plaintiff is essential. In Texas, we call that "woodshedding" the plaintiff. The deposition of the plaintiff has three basic components: (a) history; (b) liability and (c) damages. I will try to explain hot deal with each in this article. It is also important to point out that, though cases vary greatly from a factual and legal analysis, in a personal injury case the three (3) principals of a deposition discussed herein remain the same. Finally, there are no guarantees in what order the defense counsel will ask the types of questions. He/she may start with “damage” questions, then go to “history” questions and end with “liability” questions. Usually, they start with “history”, then “liability” and then “damages” as their final type of inquiry.

However, the properly


plaintiff should be astute enough to be able to detect what type of question is being asked and then apply the correct Rule of Thumb that will be discussed below.

(a) "History"


By history, I do not mean who was the 23rd president? I mean anything and everything about you, e.g., work history, education history, lawsuit history, criminal history, medical history, marital history, etc. Whenever a plaintiff sues for monetary damages alleging, among

other things, monetary damages for elements of recovery such as mental anguish, economic loss, physical pain and suffering, etc., he/she places those issues

in what the law calls "in issue". As a result of placing those matters in issue, the defense counsel has the right to inquire into matters which might tend to prove that you are not as deserving as your lawyer is trying to show (I hope anyway!). For instance, if you are taking the position that your injury has caused you to be unemployable in your field, the defense lawyer might obtain records from your pre-injury employers and then question you about them if they show you were fired numerous times for being a trouble maker in the workplace. The argument would go "this man's work history is such that he constantly gets fired and you should not award him/her money for economic loss because he/she can't hold a job anyway..." So, it is essential that the plaintiff's lawyer go through all the records that have been obtained by the defense counsel with you to flush out any "hickeys" (and believe me there are always hickeys!) to figure out how to truthfully best handle them. This is especially true with prior medical history, criminal history and claims history. Always be truthful and never argumentative.

(b) "Liability"

A liability question is a question to basically find out who did what wrong. The adage "diarrhea of the mouth" is not what you need to happen here. The defense counsel trial attorney is a finely honed knife that uses words to try to prove the following: (1) His client did not run the stop sign; (2) if his client ran the stop sign, he did not hit anyone; (3) if his client ran the stop sign and hit someone there was no one in the car; and (4) if his client ran the stop sign and if there was someone that he hit and if there was someone in the car well, then...they were already dead! As you can see, it is defense counsel's job to do anything and everything, within the bounds of zealous ethical representation, to avoid liability for his client. This is where you come in. One of the arrows in the defense attorney’s "avoidance" quiver is the arrow called, "contributory [or comparative] negligence". If the defense lawyer can show that you put the oil on the deck that you slipped on and that you knew it was there and you just "forgot", then the jury/judge may hold you at fault and that your actions or omissions were the "proximate cause" of your injuries.


This would be bad. So,

Rule of Thumb # 1

is: never volunteer anything! (No diarrhea of the mouth). Just answer the question asked and that's it (Zip the Lip). If the defense counsel is stupid and knows nothing about what you were doing, it is definitely not your job to educate him to ask quality, intelligent cogent questions. For instance, there was once a lady that was a plaintiff and she was being deposed in a rear-end situation. The defense lawyer asked, "And you stopped at the stop sign applying your brakes, correct?" The answer should have been "Yes". However, the answer was "Yes...I had to stop there to take a left as I was going up to Midas Brakes on the corner to replace my left rear brake light that had been out for a while."

Well, I guess I don't have to tell you what the next 15 minutes of questioning was about! Lesson Learned: JUST ANSWER THE QUESTION ASKED!!!!

(c) "Damages"

When answering “damage” questions, the Rule of Thumb # 2 is: You must have diarrhea of the mouth!! This is your chance to fully explain how this injury has affected your life and your family's life. Do not stop. You should have been instructed by your lawyer early on to keep a diary or journal about everyday things that have changed, or everyday pains that you have or how you could not go fishing, or how you and your spouse have been fighting because money is tight due to your injury and on and on. Look at that journal to refresh your recollection of these times and lay it on. Because after the deposition, the defense lawyer is going back to his/her office and they are going to type (in my day we dictated into tapes) the insurance adjuster (or insurer) about the kind of person you are and the story you told. This is called a carrier update letter and you want it to be as favorable to you as possible.

YES!!! A lawyer should ALWAYS woodshed the plaintiff.

Here are some other general rules to follow while in a deposition:


quickly you get an answer back to the defense counsel. In fact, it is advisable to intentionally slow your response time down from your normal answering time of a question. In conversation, there is a cadence that is present and, if the defense counsel can establish a cadence with you, he/she can lead you like the Pied Piper down a path until you realize

that you have been lead into a trap. Therefore, it is highly advisable to try your best to relax and truly listen to the question posed and then methodically answer just the question. This is

unnatural as we just like to converse but a deposition is not a conversation and is an unnatural interrogational process. I call this deliberative thought, given prior to uttering your answers, “cadence disruption” and, if you are successful, you can actually disrupt a novice defense counsel’s line of questioning. This is especially important, as discussed above, in the “liability” area.

(e) Rule of Thumb # 4: Be kind and polite. Answer with "Yes Sir", "No Sir", “I don’ know Sir”, et


I am sure you have heard of the old adage:"You get more with honey than you do with [poop]". Well it definitely applies in your deposition and, as you know, in life generally;

(f) Rule of Thumb # 5: If you are unclear what the defense counsel is asking, ask them to clarify what they are asking;

(g) Rule of Thumb # 6: It's OK to say "I don't know" as an answer to a question. People think they have to know everything. Well, simply put, no one knows everything! Remember another old good Texas saying: "There's never a horse that's never been rode and never a man that's never been throwed";

(h) Rule of Thumb # 7: It's OK to take a break and talk to your lawyer in confidence in another room. This is especially true if you get flustered;

(i) Rule of Thumb # 8: DO NOT ARGUE WITH OPPOSING COUNSEL. Remember the "honed knife" discussion above? The defense lawyer is not on your side and I can assure you that you will ultimately lose any argument and you may say something that will hurt your case.


The best defense counsel will attempt to befriend you in the deposition so you feel like you can actually trust him/her. Think again!;

(j) Rule of Thumb # 9: Listen to your lawyer. Your lawyer may be speaking to defense counsel or lodging an objection in the deposition; if so, listen to what he/she is saying as it may help you get back on track.

(k) Rule of Thumb # 10: Never lie. Remember everything has a way in working out if you don't lie. Written by R. Todd Elias April 14, 2009





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