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5 Common Trick Questions in a Deposition for Personal Injury


What Are Some Questions to Be Alert About?

  1. “What did you tell the [Emergency room], [Police officer], [Your doctor], etc., when you first saw them?” This is a trick question because the opposing counsel knows your answer is unlikely to mirror what was written by ER doctor, police officer, or your doctor. Therefore, your answer will likely conflict with what the ER record, police report, or your medical record says. The better answer is to truthfully answer that “I don’t recall exactly what I told them”, unless you have 100% recall of what you did tell them. Even still, recognize the ER doctor, officer, or your doctor may not have written it down the way you said it. Many times a claimant will truthfully testify “I don’t exactly recall what I told them, but it is probably in the medical records”.

  2. “Have you ever…?” This question is especially problematic because when opposing counsel asks you “Have you ever complained of pain to that part of your body before?”, they mean in your lifetime. Again, if you know the answer, you can answer, but if you, for instance, have headaches as a present symptom and you deny EVER having headaches before, the opposing counsel is going to go through all your current and past medical records to prove you “lied” about your answer. “Have you ever” means EVER—in your lifetime.

  3. “Since the incident are you better, worse, or the same?” This is a trick question because it doesn’t ask the relevant question of “How are you doing now?” Most people can agree they are better today in a deposition that they were lying on the pavement next to their crashed vehicle. The intent of opposing counsel is to get the claimant to say “I am better”, even if the person is still in a terrible physical condition. There are 2 commonly effective answers to this question. 1. “Of course I am better than I was on the date of the incident, but I am still suffering from… every day, every week, I still have tremendous pain and limitation”. 2. “I actually am not doing better, I still have…” Remember to answer truthfully, but don’t get trapped into choosing opposing counsel’s better/worse/same trap. You don’t have to be confined to the suggested answer.

  4. “Have you ever been injured before?” Again, this has the phrasing “Have you ever”, so it means, in your lifetime. Many opposing counsel throw out this generic question, but intentionally do not explain what they mean by “injured”. For instance, are we talking about an “injury” which required hospitalization, which required doctor’s care, broken bones, etc. or are we talking about paper cuts? Opposing counsel does not want to define their question because they use this one to trap claimants who think the attorney is talking about: “Have you ever injured the SAME part of your body as in this case?”, but that’s not what the question asked. The real answer to the question is “Yes”. “Sure”. Everyone has had some injury before if you define “injury” as cuts, bumps, bruises, etc. A good answer to this question is: “Counsel, are you talking about “injury” that required hospitalization, doctor’s care, surgery, or are you talking about paper cuts.” Opposing counsel do not like being called out on this trick question because it is one of the worst of the trick questions and it easily exposes their intentions.

  5. “What can’t you do now that you previously could do before the incident?” This is not so much a trick question as it is a trap question. If a person testifies that they absolutely cannot do some physical thing, (i.e., raising his arm over his head, he cannot bend over, cannot turn his head to the side, cannot sit for long periods, cannot lift anything, etc.) that is a challenge to the opposing counsel to prove by medical records, social media, witnesses or surveillance, etc., that the witness was untruthful. One common answer to the question for some is “I can do pretty much everything that I was doing before but: 1. It causes me great pain to do so, 2. I pay for that for next several days, 3. I have to take pain medication to be able to get through it. 4. I cannot do it like I use to do. Another answer may be that there are some good days and there are some bad days, and then explain what you can and cannot do. The point to remember for this trap question is: if you say you CANNOT do something and then the opposing counsel shows you can do the activity, your case is severely weakened if not entirely compromised. You must give truthful answers. If you can do something that is asked by opposing counsel, say so truthfully.

Remember, the defense counsel is not there to help you. There is a reason why trick questions are commonly used at depositions. It is to help the defendant, defense counsel, and insurer to avoid paying on your case. This is why you need an experienced attorney by your side in the deposition.

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