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PREPARING FOR MY DEPOSITION - EBT (Examination before trial)
in a personal injury case.

 In the course of your personal injury lawsuit, (in the “discovery stage” of that lawsuit), you will likely be required to testify at a “deposition” or, as it is frequently referred to: an “EBT” (or an “Examination Before Trial”).  Most civil litigations have depositions of the parties to the lawsuit.

 Selecting the date for the deposition:

 Initially, you and I will pick some tentative dates on which you can be available to be deposed (to give your testimony), and we will agree on a specific date with the attorneys for the Defendant.  I will confirm the date with you in writing.
 I ask that you telephone my office on the morning before the scheduled date so that we can confirm your availability, and that everyone else is able to proceed.  
 Please understand that it is a common occurrence in all cases that depositions may be postponed.  If the Defendant's attorney is unavailable, or if you are unavailable, we will have to pick another mutually convenient date.  If the deposition is confirmed, and we are going to proceed, I will give you the time and place to meet.
 In all cases, I will personally meet with you before the deposition, to prepare and give you an opportunity to refresh you recollection about the facts of the case, and to answer any questions that you may have.

 What happens at a deposition (EBT)?

    At your deposition you will be questioned by the attorney(s) for the Defendant(s) in the case.  You will be testifying, under oath, as to the facts of the case, primarily in two basic areas: first, how the accident happened, and second, what are your injuries. 

 The deposition is often held in a small room belonging to the agency for the stenographer.  It will not usually be held in a Courtroom.  It will be attended by you, the attorney for the Defendant, the stenographer and of course, myself as your attorney.  Usually the Defendant will not be present at your deposition.  Also, the Judge will not be present at your deposition. (After your deposition is completed, I will have the opportunity, on a later date, to take the deposition of the Defendant.  You will not need to be present at Defendant's deposition.)

 Lately, because of the Covid-19 pandemic, the depositions have been held virtually/online, often by zoom conference.   If you have access to the internet and a video-camera enabled computer, you may able to be questioned while in the comfort of your own home, or if you prefer, you can use a computer at my office.  As Covid-19 recedes, we are likely to go back to in-person depositions, but virtual depositions may still continue to some degree.

 As I stated, you will be asked about the circumstances of the accident, and the extent of your injuries.  I will speak with you shortly before your deposition, in preparation for your testimony.  We will go over the facts of the case, and talk about a few “ground rules” for testifying, and I will answer whatever questions you may have. 

 How to dress for the deposition (EBT)-what to wear:

 Whether the deposition(EBT)is held in person, or even virtually, I believe that the best advice is to dress as if you were appearing in Court. You can wear casual clothing, and you do not have to wear business attire. But just pick something that is respectful to the importance of the proceeding. Remember that the Defendant's attorney will be getting a sense of you as a witness on trial, and you want to make a good first impression.  

 How to behave at the deposition (EBT):

 The deposition will likely be the first time that an attorney for the Defendant will have the opportunity to meet you in person.  They will, of course, be trying to establish how the accident happened, and the extent of your injuries.  But they will also be making an assessment (and a written report to their superiors and the insurance company) of you and your demeanor in an attempt to determine what kind of a witness you will make in front of a judge and jury, in the event that the case goes to trial.
 So my advice to you is to remain calm and generally friendly, and not to be argumentative.  Most depositions are conducted in a civil and cordial manner.  But even if the questioner becomes hostile or argumentative, do not take the bait: remain calm and courteous, and let me do the arguing, not you. Even if I appear to become angry, you stay calm! One of the worst things you could do is to show anger, or lose your temper.  If you are beginning to feel agitated or angry, ask for a break so that you can calm down and speak with me.

 If am nervous and worried about my deposition EBT:

 Many of my clients have never been questioned at a deposition before, and have never testified at any Court hearing or proceeding, and some clients are nervous about their upcoming deposition.  Let me put your mind at ease: you are only going to be talking about something that already happened to you. You are just telling the truth, and you are not making anything up. You are not being tested.  If you cannot remember something, or a specific detail of the case, that's fine; you can just say that you do not remember.

 The most important rule is to answer all questions truthfully.  I will never tell you to do otherwise. If you are worried about any information that you think might be hurtful to your case, let me know about it before the beginning of your deposition.  Although you will have to disclose the information if you are asked about it, we will both be prepared.  In any event, it is essential that you answer honestly. 

 Make all your responses verbal (the stenographer cannot take down or record a nod or a gesture with you hands)

 Wait for the questioner to finish his/her question.  It is very common for a witness to anticipate the full question and start to give an answer before the question is finished.  This presents two problems; first, that the stenographer cannot take down two people speaking at once, and second, that you may have anticipated the question to be something other than what is actually being asked and may therefore give the wrong response. 

 If you do not understand the question you must say so.  Ask the questioner to repeat the question, or to rephrase it. It is perfectly fine to tell the questioner that you do not understand the question.  I would not want you to say “yes” or “no” to something that you did not understand.

 Please also keep in mind that: “I don't remember” is an appropriate response.  Even a “yes-no” question has more than two answers; If you don't remember, just say so.  Also, a related answer is: “I don't know”.   

 Note taking and document production:  

 Do not use or refer to any notes or documents at your deposition (unless you are shown something by one of the lawyers).  Testify only to the best of your recollection. Also, do not take any notes at your deposition.  Names and addresses of doctors and medical providers, and copies of documents, can be provided at a later date, and it is perfectly fine if you do not know all of those details at the deposition.

Questions about measurements:

 If you are asked a question about time, distance or speed, you will rarely be able to be precise, so the best response (unless you really are absolutely sure) is to make an approximation.  And you can use whatever measurement is comfortable such as “feet” “inches” “car lengths” “miles per hour”.  Often, you would begin your answer with: “approximately...”. 

 Objections at the deposition:  

 Usually, I will not object to questions that are being asked, even if they would not be admissible at trial.  This is because, at trial, my right to object to those questions is preserved in most instances.  So, for example, even if a question might be completely irrelevant (such as, “where did you go to high school?” or “how many children do you have?”) it will not be objected to at the deposition and you can answer it. Nevertheless, at the time of trial, I may still object to those questions on the grounds that they are  “irrelevant” to your case. 

 Nevertheless, I may still object at the time of deposition: for example, if the form of a question is improper, or would be privileged, or if the question is clearly harassing or out of line, or if it is something repetitive that you have already answered. 

 So, if I do object, stop speaking and wait for my instructions as to whether you can answer.  Many times I may make a statement, for the record to the effect of: “Please note my objection for the record, but you may answer the question”.   Essentially that is my way of noting a question that I may object to at trial.  In that case, you can just proceed and answer the question.

 Be pleasant, but cautious

 The vast majority of depositions are conducted in a civilized, and often friendly manner.  Rarely are they angry or acrimonious. Most Defendant's attorneys are pleasant and polite at the deposition.  Nevertheless, remember that the attorney for the Defendant is working for the other side; and looking for things that can help their case, and not yours.  So, it's alright for you to be pleasant, but you should remain cautious.

 Volunteering information (answering more than the question asks):

 Just answer the question and try not to volunteer information that has not been asked about.   This is especially so regarding how the accident happened.  Remember, we don't have to prove our case at the deposition; We do that at the time of trial. And you don't have to prove to the questioner that you have a good case.  We prove that to the jury or judge if the case goes to trial.  
 The reason for not volunteering is that, sometimes, when you volunteer information, it gives the questioner other issues to explore that could bring out unknown facts that could, from their point of view, be a basis to weaken your case.
   Sometimes you might volunteer information that is not responsive and hurts the Defendant's case. In such event the opposing (questioning) attorney may state; “I move to strike that which is not responsive”.  That is just his/her way of also making a “note” for the record, so that they might object at the time of trial to your response being used. Don't worry about that- your answer was fine (even though you generally should not volunteer information). 

 As to the questions about the nature of your injuries, volunteering is not quite as much of an issue, and remember to give a full answer as to the extent of those injuries, and your pain and suffering resulting from the accident.  Do not minimize.  Make it very clear how often you experience pain. But also remember not to exaggerate.  As I have noted above, be truthful. You will be asked about the things you used to do, but can no longer do since the accident and because of the accident.  In your mind, make a list of those things.  This includes household chores, work, and recreational activities. But by the same token please do not include injuries or physical ailments, or any limitations that have nothing to do with your accident, unless specifically asked about them. 

 Breaks in the proceedings: 

 You can ask for a break any time you wish and for any reason, as long as an unanswered question is not pending.   So, the point is, if you are asked a question and you aren't sure how to answer, give your best answer, and then you can ask to take a break immediately.

 What happens after my deposition is finished:

 After you testify, several weeks later, I will receive from the stenographer a transcript of your testimony.  I will send it to you for you to review it for accuracy, and for your signature. Very frequently, you will also be asked to provide further information such as names and addresses of medical providers that you might have forgotten at the time of your deposition.
 Meanwhile, at some time after your deposition is finished, I will usually take the opportunity to depose the Defendant(s) in your case.  The Defendant will be deposed in the same manner as you were.  You do not have to be, and generally will not be, present at the Defendant's deposition.

     A final note about your deposition:  

 As I have stated, you and I will meet just before your deposition to go over the facts of the case, to review some of the above pointers, and to answer any questions or concerns that you may have. 
 All you have to do is to answer questions to the best of your recollection.  If you don't remember something, that's fine.  You are just telling the truth about your accident and injuries.
 Keep in mind that the vast majority of depositions go very smoothly and without any difficulty, and I am sure that your deposition will be the same.

                                                                Barry  M. Goldstein

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