Preparing for a deposition in an Arizona injury or wrongful death case
By Jamal F. Allen, Allen Law Firm, Arizona’s Big Crash Lawyers*
Start here because everything else follows from it.
You cannot win your case at your deposition. You can only lose it.
Nobody is going to hear your testimony that day and hand you a check. The defense lawyer is not going to be persuaded. There is no argument you can make that ends the case in your favor.
What can happen is that you say something that costs you. That is the entire risk, and it is the only thing worth preparing for.
I spent years taking these depositions for insurance companies before I ever represented an injured person. What follows is what I was actually watching for.
A companion article, What Happens at Your Deposition, covers the room, the timing, and the questions you should expect. This one covers how to answer them.
Preparing is not memorizing
If you try to memorize answers you will sound rehearsed, and you will come apart the first time a question arrives sideways.
What works is three disciplines, practiced until they run on their own. Truth. Precision. Restraint.
One. Truth, especially when the truth is inconvenient
Every case has bad facts. You were going a little fast. You waited eleven days to see a doctor. Your back has bothered you before. You had two beers with dinner.
Bad facts by themselves rarely decide a case. Getting caught shading one often does. Juries tend to forgive an injured person who was going five over. They tend not to forgive a witness they believe is shading, and once they doubt one answer they start doubting all of them.
So tell your own lawyer the bad facts early, long before the deposition, so they can be handled instead of discovered.
One more thing, and I mean it literally. No lawyer worth having will tell you what to say. I will tell you what to expect, and how to answer carefully, and where the traps are. I will never tell you what your answer is. If a lawyer ever does that, find another lawyer.
Two. Precision, which mostly means refusing to guess
This is the discipline that matters most and the one people fail.
“I do not know” is a complete answer. “I do not remember” is a complete answer. Neither makes you look evasive. Both beat a guess that a photograph contradicts six months later.
The trap is estimating. You will be asked how many feet away the other car was, how fast it was going, how many seconds went by. Almost nobody can do that reliably. But a polite person feels rude saying so and offers a number to be helpful.
Then an accident reconstructionist runs the arithmetic on your number, and your generous guess becomes the proof that your own account is impossible. I have seen honest witnesses destroyed this way, and every time it happened they were trying to be cooperative.
If you cannot estimate reliably, say so. If you can describe it another way, do that instead. “About the length of this room” is honest. “About as long as it takes to say a sentence” is honest. A number you invented to be accommodating is not.
Two smaller versions of the same trap.
Watch for “fair to say.” Defense lawyers use it to get you to adopt their wording. If it is not quite fair to say, do not agree just to keep things moving.
And be careful with “always” and “never” about your own habits. Very few of us always do anything, and a single exception turns an absolute answer into an inconsistency.
Three. Restraint, which is mostly about pace
Let the silence sit. You finish an answer. The lawyer says nothing, looks down at his notes, lets the quiet stretch. It becomes unbearable, so you keep talking. Everything you add in that moment is testimony nobody asked for. The silence is his tool, and the discomfort is the point. Let it sit.
Pause before every answer. Two or three seconds, every single time, including easy ones. It gives you a beat to actually hear the question. It gives your lawyer room to object. And a steady rhythm keeps you from pausing only on the tough questions, which is its own kind of signal. A transcript records words, never pauses. Nobody will ever see you thinking.
Answer the question asked, then stop. Not the question you expected, not the one you wish had been asked, and not the follow-up you can see coming.
Make sure you understand it first. If it’s two questions stuck together, or it uses a word you are unsure of, ask for it to be rephrased. Every lawyer in that room knows that’s a fair request.
Ask for breaks. The usual practice, and most lawyers will say so on the record, is that you may break at any time except while a question is pending. Take them. Hour four is what fatigue is for.
What your lawyer is doing
People walk into a deposition feeling like they have no protection. Not so. But the protections work differently than television has taught you and knowing that in advance keeps you from panicking.
Objections are not rulings. Under Rule 30, your lawyer states the objection for the record and then you usually answer anyway. The testimony is taken subject to the objection, and a judge sorts it out later if it ever matters. When your lawyer objects and then tells you that you may answer, nothing has gone wrong.
Being told not to answer is rare, and narrow. The Arizona Court of Appeals has confirmed that a lawyer may instruct a deponent not to answer only to preserve a privilege, to enforce a limit the court has ordered, or to present a motion to terminate or limit the deposition. Your lawyer is not being passive by letting you answer most things. The rule requires it.
Your conversations with your lawyer stay private. They may ask whether you met with your lawyer to prepare. Say yes, because you did, and there is nothing improper about it. They may not ask what the two of you discussed. Denying that you prepared is a needless lie about something entirely proper, and it is exactly the kind of answer that costs a witness her credibility over nothing.
A deposition can be stopped. If questioning is conducted in bad faith, or in a way that unreasonably annoys, embarrasses, or oppresses you, Rule 30 provides a way to suspend it and take the problem to a judge. It is uncommon. It exists.
The night before
Sleep if you can. Eat something in the morning. Know where you are parking.
Bring nothing you have not discussed with your lawyer. Notes you write to prepare yourself can sometimes be asked about, so ask first.
Do not review your own medical records looking for answers to give. Review them, if at all, to refresh your memory about what happened to you, which is a different thing and an honest one.
And remember what the assignment is. Not to persuade anybody. Not to win. Just to be an honest person who tells the truth carefully, takes her time, and does not guess.
That is a low bar in principle and a hard one in practice, which is why we spend hours on it.
How we prepare clients
We take a limited number of cases, and deposition preparation is one of the reasons why. Done properly it takes hours, sometimes more than one sitting, and it cannot be handed to somebody who has never read the file.
That is the part of this work that does not scale. It is also, often, what decides how a case ends.
If your deposition is on the calendar and you do not feel ready, that is worth a phone call. Whether or not the call is to us.
Allen Law Firm, Arizona’s Big Crash Lawyers
1660 S. Alma School Rd., Suite 207, Mesa, AZ 85210 480-899-1025
Bad crash. Good lawyers. goodazlawyers.com
Rules referenced: Ariz. R. Civ. P. 30 (depositions by oral examination, including objections and instructions not to answer). Rules are amended from time to time. Confirm current text at azcourts.gov.
General information about Arizona civil procedure, not legal advice. Reading it does not create an attorney-client relationship. Prepare for any scheduled deposition with the lawyer who represents you rather than relying on any article, including this one.