19 Deposition FAQs to Avoid a Catastrophe

What is a Deposition or EBT?

EBT stands for Examination Before Trial. There is a technical difference between a deposition and an EBT but they are commonly used interchangeably by both personal injury plaintiffs and defense lawyers.

It is part of what is called the discovery process. Attorneys on both sides get to ask questions of the other side and witnesses if any. The questions and sworn answers are recorded and can be used at a trial.

Where Will My Deposition Be Held?

Your EBT or deposition may be done at any of the following places:

  • By video such as via Zoom
  • A room at a private company designed for depositions
  • A room in the courthouse
  • Defense lawyer’s office
  • Plaintiff’s lawyer’s office

When Will a Deposition Be Held in My Personal Injury Case?

When a personal injury case doesn’t settle within a few months, a lawsuit will be filed and continue through the court system towards trial.

Approximately 5-12 months after your lawsuit is filed (and usually 12-24 months before your trial), both you and the defendants will be required to appear at a deposition also called an EBT (Examination Before Trial).

What Happens at My Deposition?

The plaintiff’s deposition is usually held in the morning and the defendant’s deposition is usually held in the afternoon or the next day if your deposition is expected to take more than a few hours.

The lawyer for the people you are suing will ask you many questions, usually lasting approximately 2-4 hours.

You will swear to tell the truth before a court reporter. The question and your answers will be recorded by the court reporter, transcribed, and printed. Within a month after your testimony, you will later be given a copy of your deposition transcript to review, make any allowed changes, and sign.

Your answers can be read back at the trial and used to show or imply that you are lying. Even when you are not lying, but answer the wrong way, it’s easy for the defense attorney to make it look like you are!

The answers you give at your deposition are obviously an important part of your case. The lawyer for the defense is well-trained to try to trap you into giving answers they can use against you at trial.

What is the Most Important Thing to Know About My Deposition?

Your behavior at your deposition is even more important than the answers you give and is one of the most important parts of your case.

At the conclusion of your deposition, the defense lawyer will write a report to submit to the insurance company. The defense lawyer will write a lot about what you look like, how you behave, and whether you are likely to be believed and liked by a jury.

Even if your case is settled before trial, how you do at your deposition will greatly affect your settlement. What the insurance company thinks about you will determine if you can settle your case for what it is worth.

If you don’t do well at your deposition, you can ruin your case!

What Should I Never Do at My Deposition?

Never argue, be belligerent, or obnoxious. Act like you are on a job interview. Never interrupt the defense lawyer. Always listen to the entire question before attempting to answer.

Can I Be at the Defendant’s Deposition?

Yes, but we never have our client sit at the defendant’s deposition. It’s not a good idea.

Will the Defendant Be at My Deposition?

No. For the same reason, the defendants are never at our client’s deposition.

How Should I Dress at My Deposition?

You should dress nicely as if you were appearing in court. If you have a suit, that’s great but not necessary.

What to Wear at Your Deposition

A long-sleeved dress shirt, long pants/slacks, dress shoes, and a belt is the best choice. Do not dress too casually.

What Not Wear at Your Deposition

  • Jeans
  • Sneakers

What You Should Never Wear at Your Deposition

  • Shorts
  • Sandals or
  • Anything on your head like a bandana. Religious apparel is fine.

What Questions Will I Be Asked at My Deposition?

You will be asked:

  • How the accident happened;
  • What injuries you have;
  • If you had prior injuries or claims;
  • The doctors you saw;
  • The treatment you received;
  • How your injuries have affected your life at home and at work;
  • Your work history; and other questions.

How to Avoid Being Trapped Into Answering a Trick Question?

A common trick question is to ask for a numerical answer such as one involving time, distance, or speed. When you don’t know the answer, the defense attorney will follow up with questions designed to force you to answer.

Some example deposition questions:

  • How many feet from the intersection were you when you first saw the defendant’s car?
  • How many seconds passed from the time you first saw the defendant’s car and the impact?
  • When was the first time you went to see a doctor after you went to the hospital?

You should never answer questions about time, distance, or speed concerning your accident.

Answer a trick deposition question as follows:

Q: How many seconds passed from the time you first saw the defendant’s car and the impact? A: I do not know.

Q: Was it more than 30 seconds?
A: I really don’t know but if you would like, I can make a guess.

Neither your lawyer, nor the defense lawyer wants you to guess, so when you offer to make a guess, the defense lawyer will immediately say no, I do not want you to make a guess, and will move on to the next question.

Answer to questions about medical treatment:

Q: When did you first complain to a doctor about your TMJ pain?
A: I do not remember.

Q: Do you remember if you complained about TMJ pain when you saw Dr. X for your neck and back pain?
A: I do not remember but I am sure it is in my medical records. If you do not have a copy, I will be happy to provide you with an authorization to obtain a copy.

Can I Plead the Fifth in a Civil Case Deposition?

The Fifth Amendment is a privilege against self-incrimination and allows a person to refuse to answer a question to which an answer may incriminate the person answering.

Who may plead the Fifth?

  • A person who is under criminal investigation
  • A person who is not under criminal investigation but who may be subject to arrest if forced to answer the question

In a civil case like a personal injury trial, a jury may be instructed by the judge that they are entitled to draw an adverse inference against the person who takes the Fifth.

This is why someone injured in an accident should probably not claim loss of income from self-employment. People who are self-employed often take some liberties with their income tax returns.

If you claim loss of income from self-employment, the insurance defense lawyer will be entitled to a copy of your tax returns going back two years before your accident. The defense lawyer will give those tax returns to a forensic account to look for anything inaccurate, improper, or illegal. There is a good chance you will find yourself having to take the Fifth at your deposition and/or trial.

This research article by a white-collar criminal law firm discusses questions relating to the use of the Fifth Amendment in civil litigation.

How Will I Be Prepared for My Deposition?

The common method many lawyers used to prepare you for your deposition is to meet with you an hour or even less on the morning of your deposition! This is almost always disastrous for you.

Some lawyers will have their clients come to their office a day or two before the deposition to prepare. Some will spend several hours preparing you but some still only spend an hour or two. Even if a lawyer prepares you for three or four hours, it won’t help much.

The reason can be seen in the OSHA US Dept. of Labor chart “Percent Effective Presentations with Visual Aids” below, which shows that when you listen to instructions, there is a 10% effectiveness when only listening. Obviously, this would be even less when you’re listening to legal instructions familiar to lawyers.

Chart showing the effectiveness of audio-visual aids

Because clients almost always substantially harm their case when testifying at a deposition, we looked for a way to change that.

You will watch our video showing you how an accident occurred and showing you every facet of the deposition. You will see how to behave at your deposition, how to answer questions in a way that will damage your case, and how to answer the same questions in a way that will substantially improve the value of your case.

As can be seen in the above chart, the effectiveness of the presentation increases from 10% to approximately 70% when both listening and seeing.  With our video, your effectiveness will be closer to 90-100% because, in addition to just listening and seeing, you will be engaged in the presentation.

Since preparing our clients this way, we have experienced the best deposition testimony we have ever seen!  Our clients have testified as well as if they had had a lawyer.

Sit on a comfortable couch while watching our deposition video on a large screen TV and we review the facts of your case with you
Our deposition video on a large screen TV

What Happens After My Deposition?

We’ll prepare you like a lawyer for your deposition, but we’re not done. After your deposition, you will have to appear at one or more physical exams by the defense doctors.

Most lawyers let their clients go to these exams alone! Not us. We go with you and bring our own doctor! Of course, you’ll be very well prepared.

Justin Bieber’s Deposition Testimony – How NOT to Testify!

Justin Bieber sets the all-time best example of how not to act at a deposition in this video (below). The deposition was being conducted by the attorney for a photographer who was injured.

Even Justin’s lawyer handles the deposition poorly. In fact, I can’t believe how bad his lawyer is.  He acts like Justin’s yes man rather than his lawyer.

Justin’s behavior and answers show that he wasn’t prepared properly, if at all. His testimony looks like he received the too often typical 20-60 minute prep for his deposition. Don’t let this happen to you! And if you’re a celebrity, read about our confidentiality for celebrities.

Note the following colossal blunders Justin Bieber made during this 6:24 minute video (TMZ edited clips out of time order).

If anyone acts like this at a deposition, they can kill their case but if you’re a celebrity, you can hurt your career at the same time, especially if your case becomes a disaster. If you’re a celebrity injured in an accident in New York, take a look at how we can protect celebrity confidentiality.

What Justin Bieber Did Wrong at His Deposition

  • Sways back and forth in his chair indicating nervousness and arrogance simultaneously.
  • Is obnoxious with statements like, “I don’t have to listen to anything you have to say”.
  • Obviously lies many times, like saying, “I don’t know if I’ve been to Australia”.
  • Leans back, fakes being tired, and appears uninterested.
  • Shakes his head constantly.
  • Makes faces and smiles inappropriately.
  • Is argumentative.
  • Comments on the questions.
  • Gives answers before questions are asked.
  • Asks his attorney questions.
  • Objected to a question.
  • Refused to answer questions, often rudely.
  • Doesn’t look at the lawyer asking questions.
  • Instructs the plaintiff’s attorney and says “I think my lawyer’s asking a question”.
  • Makes fun of questions.
  • Ruins his best answer “I don’t recall” by holding up his hands and smiling, making the answer appear to be a lie.
  • Winks at the video camera (not film!), he also raises his eyebrow.
  • Ridicules the plaintiff’s attorney when the attorney doesn’t seem to know the difference between video and film.
  • Instructs the plaintiff’s attorney “Don’t ask me about that again”.
  • Waves his finger at the plaintiff’s attorney.
  • Calls the plaintiff’s attorney Katie Couric.
  • Criticizes the plaintiff’s attorney.
  • Denies knowing Raymond Usher IV but then admits knowing Usher stating that Usher sounds familiar obviously lying because he then testified that he knows Usher very well.

If you want to be well prepared for your deposition, call the 1-800-HURT-911® Personal Injury Dream Team!

Mr. Franckel is a personal injury lawyer, since 1989. He is a Founding Partner of 1-800-HURT-911® New York and a former Member of the Board of Directors of the New York State Trial Lawyers Association. He has a 10 Top Avvo Rating, Avvo Client’s Choice Award with all 5-star reviews, Avvo Top Contributor Award, and Multi-Million Dollar Trial Lawyers Award. See Mr. Franckel’s bio.

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Philip L. Franckel, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association.

1-800-HURT-911® Founding Partner and Personal Injury Lawyer Rob Plevy, Esq.

Founding Partner Rob Plevy, Esq.

Robert Plevy, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York. Rob began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.

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