Whether you love depositions or hate them, they are a quintessential part of the trial attorney experience. I used to think of depositions as simple fact-finding investigations. I spent almost a decade working in-house for insurance carriers, and during that time, my goal for depositions was to gather enough information for an adjuster to evaluate a case and assign a value to it. Private practice has changed my perspective. My new goal is to drive home facts that will allow us to defend our case. I now view depositions as an opportunity to focus on factfinding to support my discussion of the Core Four at trial.

When we talk about depositions, most people think of the plaintiff’s deposition. However, insurance defense usually involves a business, and most of my cases involve a client who has built a business worth defending. The time spent preparing your client for their deposition is an excellent opportunity to gain insight into their story. Ask them about how they started their business. What was their motivation? What do they love about their business? What hurdles did they have to overcome to build their business? Learn about their struggle so that you can convey it to a jury. Knowing the personal story of the corporate defendant will help us if the case eventually goes to trial. Remember, our goal is to establish that a human being is sitting in the defendant’s chair. In addition, this is a good time to learn about policies and procedures the business has in place to prevent similar incidents.

If you are going to accept responsibility at trial, you need to understand what you can accept responsibility for. Does the business have a scheduled training for employees? Is there an existing procedure that helps guide employees in the best immediate response after something happens? Knowing things like this can build a better case for you down the road by showing jurors you are not just paying lip service to responsibility.

Depositions are all about getting to know your plaintiff. Part of that is understanding what money means to them. How much does your plaintiff earn per year? Do they rent or own their home? Ask questions about the plaintiff’s hobbies to understand how much money they spend on entertainment.

At some point, you should ask the plaintiff what they believe is fair compensation for their injury. Many plaintiff’s attorneys will object to this question, but many will also instruct their clients to answer it. I am always amazed when I ask a plaintiff about compensation for their injuries, and they stare at me like a deer in headlights. It’s as if they never thought about this question before.

Again, depositions are about getting to know your plaintiff. Pain and suffering doesn’t just describe their current status. At the end of the day, many of our cases involve accidents and soft tissue injuries in the back. It’s essential to ask about pain immediately after the accident or directly thereafter. Many doctors will tell you that trauma-induced herniations are excruciating. Lack of pain at the time of the supposed injury may indicate that herniations are degenerative rather than trauma-induced.

Additionally, it’s important to ask about limitations a plaintiff may have. Again, this is an opportunity to discuss hobbies. What did your plaintiff enjoy doing before the accident? Can they still participate in this activity? How has the accident limited their ability to enjoy their life?

Always discuss pain and suffering in terms of general limitations. Some plaintiffs recover from their injuries and return to their preinjury status. Others make substantial claims related to how their injuries have affected their lives. Depositions provide an opportunity to gather information about these claims and serve additional discovery requests tailored to your investigation. Plaintiffs frequently tell me that their ability to exercise has been impeded due to their injuries. You can often serve discovery tailored to these claims. For example, some plaintiffs testify that their ability to run or go to the gym has been impeded by the accident. People use apps to track their runs, like Nike Run Club or Strava. Gyms frequently allow you to “check in” when you arrive. If a plaintiff claims their injuries have affected their ability to exercise, request records from their fitness apps, or obtain authorizations for their gym records. This allows you to verify their claims.

Conclusion

Whether it’s a fact-finding mission or an opportunity to drive home your position, depositions are an integral part of the litigation process. They’re also an opportunity to develop the Core Four and lay critical groundwork to avoid Nuclear Verdicts®. By ensuring I know how I will accept responsibility, give a number, personalize the corporate defendant, and argue pain and suffering, I’m setting myself up for success at trial. It’s important to develop your defense strategy beginning on day one.

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