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How to prepare for your deposition? Part 1


Your discovery deposition is an important part of your case, because it gives opposing counsel the opportunity to evaluate how effective you will be as a witness at trial if the case doesn’t settle prior to trial.

Opposing counsel is going to assess whether you come across evasive, combative or whether you will generate empathy with a jury. Defense counsel is given the charge by the defendant’s insurance carrier to defend their insured against your claim and lawsuit. Defense counsel’s job is to ascertain whether the defense can have your lawsuit dismissed or diminished through the use of pre-trial discovery if possible. More to the point, defense counsel’s job is to evaluate how effective your testimony and evidence will be presented in your case by your witnesses and you if the matter were to proceed to trial to help the defendant’s insurance company determine what your case is worth and to negotiate with your attorney to see if a reasonable settlement can be reached rather than both sides having to incur the costs associated with trial and/or the risk of loss associated with a lawsuit generally speaking.

Hence, your testimony rendered in a discovery deposition is very important to you, and like anything else in life, the secret to your success is how your counsel and you prepare for your deposition.

As such, this blog is rendered in two parts. Part I deals with suggestions you may wish to consider in preparation with your deposition with your attorney to prepare you in advance of your deposition including, but not limited to going to the scene of the collision with your attorney as well as your review of the key documents exchanged during the course of discovery including, but not limited to, your responses and that of the Defendant’s to any and all discovery requests served and answer prior to the deposition including any and all interrogatories, requests for production of documents and requests for admissions. In Part II, to be provided to you next week, I will talk about how you should conduct yourself during the deposition to better prepare you for the deposition.


At a deposition, opposing counsel is going to ask you a number of questions regarding the facts leading up to and concerning the events causing your injury with the intent on soliciting testimony from you determine whether you come across as a credible witness or not or whether defense counsel will be able to use your own words to demonstrate that you were partially at fault for the cause of your injuries.

For example, Defense Counsel will ask a myriad of questions regarding your recollection of the events leading up and subsequent to the car wreck to determine if defense counsel will be able to establish that you violated any laws while driving or otherwise "failed to maintain proper lookout" just prior to the crash. This is done with the intent to establish whether you were comparatively negligent at the time of the collision - a fact which could assist the Defense counsel in having the jury conclude that you shouldn’t receive any or full compensation for the injuries you allegedly incurred as a result of the collision.

In Idaho, if a plaintiff is comparatively negligent at the time of a crash, and that comparative negligence is equal to or greater than the negligence of the Defendant, the judge is required to dismiss your case without defendant paying you any compensation for your injuries. Where a plaintiff is comparatively negligent but the Plaintiff’s percent (%) of comparative negligence is less than that of the Defendant, then the Court is required to reduce the verdict of the jury by reducing the verdict by the percent (%) the jury finds that you as a driver were comparatively negligent. Hence in Idaho for example, if a jury awards you a verdict of $100,000.00 for your injuries at the conclusion of the trial, but finds that your negligence was equal or greater than the defendant’s negligence, the Judge is required to render a defense verdict rendering a judgment of $0.00 to you. However, if a jury finds in that same hypothetical that your negligence was 40% comparatively negligent, the judgment would be reduced to the sum of $60,000.00 (not counting whether there were any attorney fees awarded or court costs).

In that regard, the defense counsel is likely to ask questions to determine if you violated the law in some degree or failed to maintain proper lookout. With that objective in mind, the defense attorney will be asking you at your own deposition questions in one form or another to determine what your testimony is regarding the speed the vehicles were traveling prior to and at the moment of impact of the collision and whether you had an opportunity to avoid the collision but failed to maintain proper lookout which resulted in the collision occurring.

Those questions a defense attorney might ask you during your deposition could include but not be limited to:

How close your vehicle was in relationship to the other driver’s vehicle when you first observed it?

How fast was the other driver traveling when you first observed it (and/or when the collision occurred)?

How fast were you traveling when you first observed defendant’s car (and/or when the collision occurred)?

What was the speed limit for both vehicles traveling on the day of the collision?

How much time elapsed between the time you first observed the defendant’s vehicle until the collision occurred?

In order to determine how fast a vehicle is traveling in miles per hour, the high school physics teacher would tell you that the mathematical equation for the calculation is as follows:

Speed equals distance divided by time or S = D/T (S denotes speed in miles per hour; D denotes Distance traveled and T equals time measured in seconds, minutes or hours). As an example, if a vehicle is traveling 100 miles in the space of 2 hours, how fast is the vehicle traveling in miles per hour? Since S = D/T, if a car travels 100 miles continuously over a 2 hour period, the vehicle would be traveling 50 miles per hour (100/2 = 50).

Sometimes all the defendant has to do to demonstrate your lack of credibility as a witness is to show that the variables you testify about during your deposition simply don’t add up in the way you portray them. For example, if a witness testifies under oath that the witness was traveling only 40 mph continuously over a 2 hour period but in fact traveled the distance of 100 miles during the same period, the math does not support the witness’ claim since a vehicle traveling 100 miles continuously over a 2 hour would be traveling 50 mph. Sometimes, it is helpful to have your attorney hire a collision reconstructionist to establish the credibility or lack thereof concerning your testimony or that of the other party before incurring significant costs of discovery or trial to insure that your case has merit.



It’s important that you review the police report and all of the witness’ statements as starting points of documents you should review prior to your deposition. Then you should review both all of the parties’ responses to the discovery requests (interrogatories, requests for production and requests for admissions0 before your deposition.

Defense counsel will be pouring over those records and will be noting what your responses are pertaining to same to determine whether your sworn testimony is inconsistent between your answers sworn upon oath in your deposition with your prior written discovery responses with the objective to impeach or otherwise discredit your testimony - to show that your testimony is unreliable because on one occasion you testify to one story and then on another occasion you change your testimony on another day.

If your injury occurred in Idaho, either your attorney or you should have obtained a copy of the Idaho Vehicle Collision Report and any and all witness statements, photographs, video or audio recordings from the police investigating the accident. You should also find out if the police issued a citation or otherwise arrested the defendant and whether the defendant entered into a plea bargain agreement of guilty to the charges rendered and paid a fine If so, such evidence may be admissible as evidence in your case against the other party.

Once you have the police report and any and all witness statements, recordings (video and audio) photographs and/or collision reconstruction and any and all citations and court records regarding same, you should go over the facts with your trial lawyer to help you prepare for your deposition testimony.

If the collision occurred in your local city, take the time to visit the scene of the collision with your attorney so that your attorney understands how the collision occurred.


It’s likely that defense counsel will proceed with the scheduling of your deposition once the defendant has received and reviewed a copy of your medical records for the treatment you received both prior and after the accident.

Defense attorneys are notorious for asking questions about your injuries and treatment after going thoroughly over your records to see if you are giving any testimony inconsistent with your medical records.

Remember, some medical records aren’t always accurate. I have seen where doctors may see dozens of patients during a morning or afternoon and defer dictating their reports until hours after an examination. This can lead to mistakes in the medical chart, but some defense attorneys refer to medical records as if they were written by the finger of God on stone tablets. It’s of tremendous value to your preparation that you review thoroughly your medical records to avoid appearing evasive regarding your recollection of the events associated with your treatment and therapy. Know them inside and out. After all, you lived the drama associated with the accident and the treatment you received. The defense attorney is merely reviewing them from a passive position. He wasn’t there when you were dealing with the pain and suffering and talking with your healthcare providers. But he is eager to try to point out the discrepancies if any that exist between your medical records and your testimony rendered during a deposition.

By studying thoroughly your medical records, you establish credibility with the defense attorney. He may not (because of his bias) ever believe you regarding what you say, but he’s charged is to assess how a jury may perceive you as a credible witness or not. The more thorough you are in your preparation, the more likely the attorney will advise his true client, the Defendant’s insurance company, how credible you come across or may likely come across to a jury. By investing the time in reviewing your medical records, the easier it will be for you to answer defense counsel’s questions regarding your treatment and therapy.


If you or a loved one have incurred injuries or damages as a result of an accident or wrongful death, you should schedule a free consultation with an experienced trial lawyer. Boise Trial Lawyer Alan Morton has over 32 years of experience in helping victims of injury and wrongful death seek compensation for the injuries and damages they have incurred as a result of the negligence or fault of another. You can reach Mr. Morton at 208.344.5555, toll free at 888.716.8021 or by way of an online contact form to schedule an initial free consultation. Mr. Morton is available to meet with you at his office or at your home, workplace, hospital or any other convenient location to help provide you with information regarding our legal rights and remedies. You may also wish to review his client’s testimonial section regarding the services that Mr. Morton provided to them.

Alan Morton
Advocate for Justice/Trial Lawyer