If you’re preparing to testify in a personal injury case, your deposition is one of the most important moments in the legal process.
A deposition is a formal, sworn, out-of-court testimony where attorneys ask you questions under oath before a case goes to trial. It can directly influence whether your case settles and how much compensation you receive.
“After almost 30 years of sitting through endless depositions, I have become very opinionated as to what makes a good and a bad witness,” said David Femminineo, founder and personal injury attorney at Femminineo Law in Michigan. “The better you testify, the better your outcome will be.”
Below, we explain how depositions work, the most common errors plaintiffs make, and practical strategies to help you testify with confidence.
How Witness Testimony Impacts a Personal Injury Case
When a personal injury lawsuit gets filed, plaintiffs are almost always required to testify in a deposition as part of the discovery process. Deposition testimony is often the most influential evidence that’s considered at this stage of a lawsuit. It acts sort of like an audition before trial. The better witness you make, the less willing the insurance company will be to take your case to court.
In addition to reducing the likelihood of a trial, deposition testimony can directly impact the defense’s perceived value of your case. A successful deposition strongly correlates with more money in the plaintiff’s pocket, especially in cases like car accidents, where the facts and your testimony play a major role in how your claim is valued.
What to Expect When Testifying in a Deposition
While the stakes are still high, depositions take place in a relatively controlled environment compared to a trial. The only people present for these formal, out-of-court, sworn testimonies are you, your attorney, the defendant’s attorney, and a court reporter.
Depositions typically follow a straightforward sequence:
- A court reporter will place you (the plaintiff) under oath. The court reporter is responsible for producing a written transcript of the entire conversation.
- The questioning attorney (the defendant’s attorney) will confirm your understanding of the oath you just took and give you some additional instructions, such as how to respond to their questions.
- Initial questions will cover basic background information like name, address, employment, and educational history.
- Following these initial questions, the defendant’s attorney will move on to substantive questioning. This includes questions about facts, events, and documents related to the accident.
- Your attorney can object to improper questioning, and you can also request breaks to collect your thoughts.
- Once all questions have been asked by opposing counsel, your attorney will have a chance to ask their own set of follow-up questions to clarify anything that may have been unclear.
The 3 Most Common Witness Mistakes When Testifying
Without adequate preparation, even a straightforward process like a deposition can feel like a complete whirlwind.
While you might be worried about exactly what to say, oftentimes what you don’t say is even more critical. Guessing or speculating, becoming defensive, or providing too much information frequently result in less-than-ideal outcomes for clients.
Mistake #1: Guessing or Speculating
In general, people tend to be very poor judges of time and distance. It’s not a skill many of us have to use on a daily basis.
“I can’t tell you how many times a witness has stated that they saw the other vehicle for 30 or 40 seconds prior to the accident taking place,” said David Femminineo. “If you saw an accident that was about to take place 30 or 40 seconds ahead of time, it would have been avoided.”
Unfortunately, defense attorneys are aware of this human shortcoming and often ask questions intended to do exactly this: make your accident seem avoidable.
People also struggle with estimating distance. Defense attorneys commonly ask witnesses how far they were from the other driver when they saw them. Just as with time, it’s important not to speculate if you aren’t positive. Simply admitting you aren’t sure is almost certainly a better answer than guessing and overestimating.
Mistake #2: Becoming Defensive or Emotional
Part of the job of the defendant’s attorney is to see how you’ll react to a little bit of argument. They’ll often start questions with “well couldn’t you have,” or “shouldn’t you have,” or “why didn’t you?” It’s important not to get flustered by these questions and not to take them personally in any way.
The defendant’s attorney is trying to see how you will react to these types of questions should the case go to trial. “It is perfectly okay to be impassioned about how your injury happened and the reasons why you believe the injury took place,” said David Femminineo. “However, don’t take offense when your beliefs are challenged. Give your side of the story without being argumentative.”
Mistake #3: Talking Too Much
Limit your responses strictly to what’s asked. Don’t volunteer information. If you are asked to explain how your accident happened, don’t start with what you had for breakfast.
“If someone asks you whether or not you have a watch, they are not asking you what time it is,” said Femminineo. “They are only asking you whether or not you have a watch. If they want to follow up with, ‘Well, what time is it?’ then you answer what time it is.”
Answer succinctly and avoid divulging information that isn’t directly related to the question. A long answer is not necessarily a good or thoughtful one.
How to Be a Good Witness: Tips for Testifying During a Deposition (or in Court)
While depositions aren’t something you should be nervous about, it’s important not to downplay their significance. As explained by David Femminineo, “The success or failure of your case may rest wholly or partially upon your ability to make a good witness.”
Here’s a collection of tips to increase your chances of a successful deposition, provided by the seasoned team of personal injury attorneys here at Femminineo Law:
Take Your Time Before Answering
Remember that you may have given a previous answer in which you relayed particular details about your accident or injury. Being consistent with your previous statements is absolutely imperative to your credibility. Be sure to take time before answering and think about what you have already shared.
Changing your story or constantly coming up with new information is a problem. Even if it was an honest mistake, contradicting yourself can seriously call your credibility into question.
Be Honest, Even If You Don’t Know or Remember
Lying and exaggerating are strictly off limits during a deposition. You’re under oath to tell the truth, and lying can lead to serious legal consequences.
Additionally, it’s safe to assume that the defendant’s insurance company has had a close eye on you since the date of your accident. Therefore, according to David Femminineo, “If you are asked whether or not you mow your lawn, tell the truth. The opposing insurance company may very well have you on video doing just that two weeks earlier.” The most minute details are documented thoroughly after an accident. It’s crucial not to be caught in a lie, even a small one.
In a similar vein, it’s important not to speculate or estimate. If you’re unsure about something, express that uncertainty.
Avoid Beginning Your Answers With Certain Phrases
Do not begin your answers with “In all honesty…”, “truthfully…”, or “honestly…”. You’ve already sworn to tell the truth. When you answer questions in this manner, the representative from the insurance company or the jury will just assume that what you are about to say is a lie. Don’t give the impression that you’re lying.
Stay Respectful and Professional
Maintaining a respectful, professional appearance is key when giving a deposition testimony. This starts with what you wear. You should wear conservative clothing that you would normally wear to an event like a religious service. Avoid name-brand clothes, name-brand purses, expensive or large jewelry or revealing clothes. The less memorable your outfit is, the better.
Turn off your cellphone during a deposition.
If you smoke or vape, it’s also best to leave these habits at home for the day of your deposition. Non-smokers tend to judge smokers. It’s best not to draw any negative attention to yourself or partake in any controversial activities like smoking.
Preparing to Testify for Deposition (or a Trial)
Consulting with a Michigan personal injury attorney is the most crucial step you can take to prepare for a deposition. Despite the abundance of helpful tips online, nothing can match the experience of a seasoned accident lawyer, including:
- The ability to review the facts of your case with someone closely familiar with Michigan injury law
- Getting a professional opinion regarding what to say and what to completely avoid
- Clarifying the strength of your case, expected outcomes, and reasonable settlement amounts
- The chance to practice answering questions with someone who thoroughly understands the deposition process
Our injury attorneys will prepare you to testify in a trial.
FAQs About Testifying in a Personal Injury Case
What should I say during a deposition?
Keep your answers succinct and factual. Avoid speculating or guessing about time or distance. Only answer what’s asked and don’t divulge extra information.
What are the most common mistakes when testifying?
Three of the most common deposition mistakes are estimating time and distance, becoming argumentative, and sharing information unrelated to the question.
Can I say “I don’t know” during testimony?
Absolutely. A truthful admission of “I don’t know” or “I’m not sure” is always preferable to guessing or making something up.
How can I prepare for testifying in court?
Prepare for testifying in court the same way as you would approach testifying in a deposition. While the setting and audience are different, the same general preparation guidelines apply.
Can my testimony affect my settlement?
Your testimony can and most likely will affect your settlement. Unsuccessful depositions usually result in lower settlements and can sometimes lead to trials. A strong deposition correlates with higher settlement amounts and better outcomes for clients.
Do I need a lawyer before giving a deposition?
It is legally possible for a plaintiff to give a deposition without an attorney, but this practice is highly discouraged. Without the expertise of an experienced Michigan personal injury attorney, it’s unlikely that you’ll fully understand your rights.
Why are witnesses important in a car accident case?
Witness testimony directly influences your settlement amount and the likelihood that your case makes it to trial. Think of it as foundational evidence that all other evidence builds on.
Talk to a Michigan Personal Injury Lawyer Before You Testify
If you’re preparing to testify in a deposition and haven’t spoken to an attorney, call us now.
The team at Femminineo Law has been serving the Metro Detroit community for over 30 years and has guided clients through thousands of depositions. Our experience allows us to thoroughly prepare our clients for every stage of the deposition process.
Give us a call at 855-65-CRASH or visit our website for a free consultation. From the moment you reach out, your case is in motion, and you’ll have a team helping you prepare for every step, including your deposition.
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