"Everything you've been told about building
an injury law practice is wrong"

How to Educate Your Clients about their Deposition

What are the things you do repeatedly at your law firm? For trial lawyers, we prepare our clients for their depositions and each time, we do this almost exactly the same way. There’s a good chance you’ve met with clients to prepare them for their deposition hundreds (if not thousands) of times.

What if you educated your clients about the deposition in writing and video before the deposition? Your clients will know what to expect at their deposition and your pre-deposition meeting will simply reinforce concepts. Your clients will be better prepared and you’ll have less work.

We give our clients the form, “What to Expect at Your Deposition”, at the initial client meeting and again before their deposition:


“What to Expect at Your Deposition”

We prepared this document to help you prepare for your deposition. If you follow these instructions, you will do great at your deposition. If you do not read this document or ignore our instructions, your deposition will go very bad. It’s up to you!

I will meet with you about one week before your deposition in order to help you prepare, so you know what to expect. We strongly recommend that you read this document repeatedly before I meet with you.

What is a Deposition?

At your deposition, a defense lawyer will ask questions, under oath, about the claims made in the lawsuit and the questions and answers will be typed by a court reporter (a/k/a stenographer). Your deposition will be held at a lawyer’s conference room (not in a courthouse). You do not win your case at a deposition—you win your case at trial.

I will be present with you throughout the deposition, along with a court reporter (a/k/a stenographer) and the defendants’ lawyer(s). I will be present with you during the deposition in order to:

  • Protect your rights, and
  • Make sure the defense lawyer does not ask inappropriate questions.

The defense lawyer hopes you speak endlessly and volunteer as much information as possible. When you volunteer information and answer simple questions with lengthy answers, you are helping the defense lawyer.

Our goal is to get you in and out of the deposition as quickly as possible. If you follow these instructions, your deposition will likely be brief (less than 3 hours). If you ignore these instructions, your deposition could take an entire day (7 hours) or even 2-3 days.

Questions that Will Be Asked at Your Deposition

Your deposition will cover three main topics: (a) Your Background, (b) Events in Dispute; and (c) Your Injuries/Damages.

Your Background: The defense lawyer will begin by asking about your background, namely, where you live and work, your family, your income, etc. The background questions typically last one hour.

Events in Dispute/Medical Treatment: The defense lawyer will ask you about the medical treatment/events in dispute that is the basis for the lawsuit. By way of example, the questions about the medical treatment might include:

Question:   When did you arrive at the emergency room?

Question:   What were your symptoms when you arrived at the hospital?

Question:   What did you tell Dr. Jones about your symptoms?

Question:   What did Dr. Jones tell you about your diagnosis?

The questions about the medical treatment/events in dispute typically takes 2 hours.

Injuries & Damages: The defense lawyer will ask about your injuries and loss of income, and these questions typically take 1 hour.

What to Wear at Your Deposition

You want to dress your best. You should wear conservative clothing that would be appropriate for a job interview or a funeral. Do NOT wear jeans or T-shirts and if you have ear-rings (or nose rings), remove them and cover any tattoos (if possible).

Dress Attire for Men: Men should be clean-shaven, and wear a dress shirt and pants. There is no need to wear a suit and tie (unless that is how you normally dress for work).

Dress Attire for Women: Women do not have to wear a dress (unless that is what you prefer). At a minimum, women should wear formal dress pants.

If you have any questions, or do not have formal attire, call us and we will help.

Objections by the Attorneys During Your Deposition

Objection to the Form: During the deposition, there will be times that I will object to a question, but instruct you to answer the question, i.e., “Objection to the form of the question, but you may answer.” When I “object to the form” of the question, I am objecting to a technical error in the question, but you must still answer.

Instruction Not to Answer: There might be an occasion that I object to a question and give an instruction not to answer the question, i.e., “Objection. Do not answer the question.” When I object and instruct you not to answer the question, the defense lawyer asked a highly improper question that is either irrelevant to the issues in the lawsuit or violates a court order or privilege, such as attorney-client privilege.

Your Rights at the Deposition

Take a Break: You have the right to take a break during the deposition (as long as a question is not pending when you ask for a break). I prefer that you take a break at least once every hour in order to ensure that you are mentally sharp. To take a break, you only need to ask, “May I have a break?”

Speak Privately with Your Lawyer: You have the right to speak privately with me. If you have something that you’d like to discuss with me, or believe that your testimony is inaccurate, you only need to ask, “May I have a break?” You and I can speak privately in a separate room and our conversation will be protected by the attorney-client privilege.

If I ask you, “Would you like to take a break?”, you should always answer, “Yes”. When I ask whether you want to take a break, I want to speak with you in private.

How to Act at Your Deposition

Make Eye Contact: Sit up in the chair and make eye contact with the defense lawyer.

Do not look up at the ceiling or down at the conference table. The lack of eye contact is a non-verbal sign that you are not telling the truth.

Hands Away from Your Face: Keep your hands away from your face. Ideally, your hands should be on your knees and never go near your mouth, head or face. When you hand is covering your mouth or face, that is a non-verbal sign that you are hiding the truth.

No Small Talk or Jokes: Do not laugh or make small talk with the defense lawyer. The deposition might be the most important thing you do in your lawsuit, so it important to prepare and take it seriously.

How to Answer Questions at Your Deposition

Pause Before Answering: Let the defense lawyer finish the question before you answer and pause before you answer the question. The court reporter does not record how long it takes for you to answer. By pausing before you answer the question, this gives me time to object to the question, if necessary.

Listen Carefully to the Question: Make sure you understand the question. If you do not understand a question, tell the defense lawyer, i.e., “Can you rephrase your question?” or “I do not understand your question.” Never answer a question that you do not understand.

Answer with “Yes” or “No”: If you can answer with a “Yes” or “No, that is always the best answer and the next best answer is “I don’t know”. Do not volunteer information or answer in more than a single sentence, if possible.

Question:   Were you at the hospital when your daughter arrived?

Answer:     I was working until 6 that night and had dinner with my husband after work, so I got to the hospital at 8:15 p.m. about an hour after my daughter was admitted.

No, no, no! This question calls for a “yes” or “no” and the witness should have answered this question, “No.” The defense lawyer did not ask whether the witness went to dinner with her husband after work or when she arrived at the hospital.

The witness volunteered a ton of information that will lead to more questions and make the deposition much longer. You are not helping yourself by volunteering information.

The BIGGEST Mistake that You Can Make

The most common mistake made at a deposition is GUESSING. When you are not certain of an answer you should respond, “I don’t know” or “I don’t remember”.

Question:   What time did you arrive at the hospital?

Answer:     It was probably midnight.

The use of “probably” in the answer indicates that you really don’t know. Furthermore, “midnight” is a precise time and if you are not absolutely certain of the time, you should not testify as to a specific time. Remember, if you don’t know, don’t guess.

The medical records indicate the time that the patient arrived at the hospital, so there is no need to guess. When you are unsure of the answer, it is better to testify, “I am not sure” or give an estimate, such as: “I estimate sometime between approximately 11 p.m. and 1 a.m.”

Do not give any answer unless you are sure that it is correct. GUESSING IS THE WORST THING YOU CAN DO!

What Documents to Review to Prepare for Your Deposition

You should only review ONE document for your deposition: the plaintiff’s Bill of Particulars. The Bill of Particulars will be provided to you before the deposition for your review and lists your injuries and the allegations of the defendants’ negligence.

Question:   Did you review any documents to prepare for this deposition?

Answer:     Yes.

Question:   What documents did you review?

Answer:     The Bill of Particulars.

Question:   Did you review any other documents?

Answer:     No.

It is important for you to review the Bill of Particulars, as it might re-freshen your memory and you may notice inaccuracies in the list of your injuries or dates of medical treatment. Do NOT review any other documents to prepare for your deposition, such as your handwritten notes.

Most Common Questions at a Deposition

At almost every deposition, you can expect the defense lawyer to ask the following questions:

  • Did you keep a journal or diary about your medical care?
  • Did you review any documents in preparation for the deposition?
  • Have you ever been convicted of a crime?
  • Have you ever filed for bankruptcy?
  • Have you spoken with anyone about your deposition, other than your lawyer?
  • Was any doctor critical of the care provided by Dr. Smith?

If you prepared a journal or diary or have been convicted of a crime or filed a bankruptcy petition, please make sure you tell me at our meeting before the deposition. Remember, answer every question with a “yes” or “no” if you can.

Be Brutally Honest with Me

The defense lawyer will possess all of your prior employment, medical and insurance records and will know more about your than you know about yourself. Never underestimate the defense lawyer!

If you have anything in your background that might be damaging, i.e., criminal convictions, bankruptcies, etc., it is crucial that you tell me about them BEFORE your deposition. I can help you prepare to answer questions about the “skeletons” in your closet only if you tell me about them.

Confirm that You Will Follow Our Instructions

To confirm that you’ve read this document, please sign where indicated and initial the lower right corner of every page. I will do the same.

Please bring the signed agreement to our pre-deposition meeting (one week before your deposition) and review it as frequently as you can.

We look forward to helping you!



John H. Fisher


photo credit: m.gifford Stenographer via photopin (license)

Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.