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| Wooten Kimbrough Damaso & Dennis, P.A.

The will to win is not nearly as important as the will to prepare.” This is a quote and philosophy used by some of the greatest coaches in sports history to motivate athletes. In trial practice, that line of thinking should be no different. This is true especially when it comes to preparing for and giving a deposition and trial testimony.

We practice civil trial law related to personal injury, wrongful death, medical negligence and defective products. We help people and their families when they have been harmed by the careless or reckless choices of another. Mostly, we fight insurance companies and huge corporations to get them to take responsibility for, and balance the harms and losses resulting from, their bad choices.

We are very successful. The only way we are able to do this is through the rigors of case preparation. If we get a fair result without exposing our client to the risks of a trial, then that might be in the client’s best interest. But, if the defense chooses to add insult to injury, throwing salt into the wounds, by choosing not to accept responsibility, we take the responsible party to court and let the conscience of the community – the jury – decide what is fair.

In any type of legal case, and speaking primarily from the point of view of an injury and wrongful death attorney, it is amazing at how many lawyers do not adequately prepare their clients for deposition and trial. In fact, the preparation is so deficient they might as well have not done anything at all. Telling your client nothing more than, “go in there and tell the truth” is frankly malpractice in my opinion. Lawyers not willing to take the time to review with the client the intricacies of the case as well as every conceivable topic that might be covered are not worthy members of the bar and should choose another profession. I am sorry for being harsh, but if your attorney is not preparing you for your upcoming deposition and trial consider choosing another attorney.

Meeting on the day of the deposition is not sufficient. Based on my experience and judgment, merely one meeting before the deposition is not enough. Several meetings, over several days, each for several hours and spread out over the course of several weeks may – at a minimum – be adequate depending on the case. And, for trial, you probably need more.

Why meet with your attorney so much? The opposing attorney’s entire purpose is to bait you into saying something wrong. The opposing attorney wants to make you: 1.) say something that is inconsistent with a record or other piece of evidence; OR, 2.) make you “guess” at something where your assumption is incorrect. They will tell you otherwise at the outset of the deposition. “I don’t want you to guess; only tell me what you know.” Yet, usually in every case, more than half of the defense is based on these inconsistencies (For example, not remembering a headache you had 25 years ago, but they found it in your prior employment records that showed you left work a little early for a headache).

How do they trick you? How does the defense attorney trap you? You know the truth, right? After all, this incident and injury happened to you so no one knows this case better than you, right? Nothing will go wrong as long as you just tell the truth, right? Wrong!!!

With the power of the subpoena, the insurance company attorneys dig up boxes and boxes of your medical records, getting your medical history from decades ago. The insurance attorney tries to get every record from every doctor you have ever seen in your life. They have their staff outline every similar complaint in your entire medical history and then in deposition they try to get you to leave something out or say something that conflicts with a record – maybe a record from decades ago.

Here is a news flash, unless you are in MENSA AND have a photographic memory, there is no way you can remember your entire medical history. No one does. And, people are often amazed at what their medical history looks like on paper – boxes and boxes of paper. So, obtaining these records first and reviewing them with your attorney is critical. No, you do not need to memorize your entire medical record history. You do not need to memorize dates and quotes from the records. You do, however, need to be familiar with anything in your medical history that requires explaining or elaboration. You do need to be able to explain how the new occipital headache from your neck injury is different than that migraine headache you had as a child.

The defense may also hire someone to follow you around with a video camera recording your activities. I know this is creepy, but this is what they do. They do this to then ask you questions at deposition about these activities in the hopes you will forget that you did something already recorded on video. You need to review all of your activities with your attorney. Review all activities you can no longer do at all. Review all activities that you can still do but give you pain at the time. Review all activities you can do but it causes you pain afterwards. Review all activities you might be able to do, but you avoid because you are cautious and do not want to risk making your condition worse. It is critically important that they know and can see it through your eyes. You and your attorney need to be familiar with every way this injury impacts your life so you can be upfront about it to the opposing attorney at deposition as well as with the jury at trial. I say “you” need to be familiar and you might think, “This is my injury, how would I not be familiar?” But, I have found that hurt people most accurately realize how the condition impacts them while it is impacting them in that way, not while under the stress of interrogation during a deposition. Think of all the ways this condition impacts your life ahead of time so it is fresh and on the tip of your tongue at deposition. This way, you will not leave the deposition thinking there is something you needed to say but forgot because your were nervous.

Giving a deposition or trial testimony is a very stressful experience. It is extremely nerve racking. It is not pleasant. There is the fear of the defense attorney making you look bad, putting words in your mouth or tricking you into saying something stupid. But, if you are brilliantly prepared, you will brilliantly give your testimony. Very little, if anything, will fluster you. And, you will give your testimony as truthfully and flawlessly as possible without getting tricked by one of these defense traps. The effectiveness of your testimony is critical in getting justice for what happened to you – and it begins with solid preparation.

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