Continue reading »]]> If your injury claim cannot be settled and a lawsuit is filed there are a number of steps in the litigation process.  But one of the watershed days in every case occurs when the injured person has her deposition taken.  Both settlement negotiations and any eventual trial may result in disaster unless that deposition goes well.

Every good attorney takes the time to prepare their client for the strange world that is the deposition room.  For someone who has not been through it a deposition can be an odd and slightly scary experience.

Getting Ready For Your Lawsuit Deposition

Over the years, I have sat down with hundreds of clients to get them ready for their deposition.   Every case has its specifics, and those specifics need to be part of what you and your lawyer talk about in getting ready.  But there is what I call the “basic tool chest” of deposition skills.

Probably 90% of what I discuss with clients in preparation for their deposition in various cases is the same regardless of the case.   A central part of any case is in its details.  In every case, the facts of the specific incident guide that essential last 10% of advice and counsel unique to that case.  However, there is common ground that is covered by the bad guy’s lawyer during a deposition.  Thus, deposition preparation lends itself to a certain general tips and advice that I regularly discuss with clients.

Without doubt, the advice in this post is a bit generic and there may be times where your own lawyer, who has more knowledge about your specific case, thinks a different approach should be taken.  Your lawyer should always take the time to prepare a client the way that lawyer believes the particular client should be prepared under the circumstances.  Some clients and cases require more than just  a little discussion, they require practice sessions to make sure they are comfortable with the process. But this post reviews some basics.

What is a Deposition Anyway?

A deposition is an interview involving questions asked by the lawyer for the other side of the case to which you give sworn answers.   During the deposition everything that is said, the questions and answers and comments, are being transcribed by a court reporter.  Because it is under oath at trial, if you try to change the answers you gave during a deposition, the lawyer can use those contradictions in court to suggest you are lying or untrustworthy.

Who Will Be There?

Your lawyer will be there with you.  The court reporter will be there as will the bad guy’s lawyer who there to ask the questions.  Sometimes the representative of the insurance company (the adjuster) will be there. And sometimes the bad guy himself is there as well.

The presence of any of the people should not change anything for you but you need to understand that in addition to getting your sworn answers “on the record” the opposing attorney or others who are there, will be evaluating you in other ways.  Your demeanor, appearance and veracity will all be judged to one degree or another. These are more subtle things that can count in the settlement negotiations prior to trial.

 What Will You be Asked About in a Deposition?

First, there are some unsurprising topics.

Certainly, the central issues of your case are a prime area for questioning. . For example, in a car accident case, you will be asked about how the accident happened. Things like: what did you see at the scene, where were you going, what did you do, what do you remember happening.  These are questions that get to the details of your memory of the event at issue.

Similarly, you will be asked about matters like the nature of the injuries, what medical care you sought and how the injuries impacted your life.

Second, there are topics that regularly surprise clients.

Generally speaking- everything is fair game for questions.   It does not have to be “relevant” to the case.  The surprising things that get asked about are things like, your family and living arrangements, your employment, marital status, old bosses and ex-spouses, past medical history including unrelated injuries, where they grew up, the names of friends, sports you play now and in the past.  Pretty much anything the bad guy’s lawyer chooses to ask you, the litigation rules let them get away with.   You will be asked about any prior workers’ compensation claims, or lawsuit of any kind even whether you ever filed prior insurance claims for anything.  There are dozens and dozens of such topics that some lawyers ask about.  I’ve even had lawyers ask questions about a 40 year old clients grade school experiences.

Why Does the Bad Guy’s Lawyer Ask Those “Irrelevant” Questions in a Deposition?

You have to understand the goal the lawyer has to understand the questions.  He is looking for anything he can use against you.  It is a sort of “fishing expedition” for the defense attorney who looking for something either sinister about you or to get you to be less than forthcoming so he can question your honesty at trial.

One aspect of trials is that they are in part morality plays about good and evil.  Thus, the defense lawyer will use any fact he can no matter how small or seemingly irrelevant to try and show that a the injured person is the bad guy and thus “should” lose.

The process can, quite frankly, be annoying.  But the rules allow for deposition questions to stray into nearly unlimited topics as long as the answers are “calculated to lead to admissible evidence.”

How does a Plaintiff Get Ready For a Deposition?

In s phrase (and of course the Boy Scout’s motto) be prepared.

The Basics of Being Prepared:

There are some basic rules that apply to every deposition.  Here is a basic outline of those rules. 

1. Tell The Truth:

This means, of course, don’t lie but it means a lot more too.

No matter how good, or bad, your case is in the abstract, a lying plaintiff simply starts the funeral march towards an unfavorable result at trial.  As discussed here most cases don’t go to trial but one way to increase the odds of your case be one that does go to trial is doing a bad job at your deposition.

•  Talk about specifics ahead of time with your lawyer

All cases have “uncomfortable testimony,” be it on facts of the incident, or something to do with the claimed damages or on the personal issues the other lawyer asks about.  These are often areas where the specifics of your case need to be worked through with your lawyer ahead of the deposition.  You want to be sure the testimony comes out smoothly, honestly and is placed in the appropriate context.

•  Don’t Guess

If you guess at an answer you simply cannot be telling the truth in response to the question. To ensure the “whole truth” don’t guess or add information you don’t know or weren’t asked about.

This is the essential difference between depositions and normal conversations among ordinary people. In normal conversations we naturally fill in holes in the story with certain assumptions and guesses. It is not lying, it normal.   In deposition, it can be deadly to your case.

•  Be sure you heard and understood the question

Lawyers are remarkably capable of asking questions which make absolutely no sense whatsoever. Whether unclear, vague, ambiguous, compound or what have you, all lawyers who take depositions have done it and we will all do it again.   If you don’t understand a question: Don’t Answer It.   You can always ask for a question to be repeated or clarified.

•  “Always” avoid absolutes

The use of absolutes to answer a question such as “always” and “never” will almost always cause problems.  For example, any question designed to get you to make absolute statements like “I’ve never in my life suffered a headache before this crash,” is almost always a trap.  It is painful to recall how many time I’ve heard a clients have been lulled into making such a sweeping comment.

Often the clients real point (i.e. the truth”)  is, “other than normal aches and pains”, I’ve never had a problem.  For example:

“If you are asking if I ever had a neck pain before this accident, I’m sure like everyone, I’ve had a stiff neck. But I’ve not gotten any treatment before that I remember.”

This answer protects you from defense counsel digging up a record 10 years ago when you suffered the flu, had aches and pains including in your neck, and suddenly the testimony comment about NEVER suffering any neck pain, looks deceptive.

You cannot forget a primary reason of nearly every deposition for the bad guy’s attorney is to make you look like you are lying.  Absolute comments are almost always a problem.

• Leave the door open

One standard defense lawyer tactics is to try to get you to make a mistake by asking a question in absolute terms, i.e., “Tell me everything,” “That’s all the problems you’ve had?”, etc.    Be prepared to answer with the truth, which is usually, “That’s all I remember right now,” or “I’m sure there’s more, but that’s all I recall at this time.”

It is the rare client who can remember everything while having his deposition taken. What the lawyer wants to do is “box in” the plaintiff and limit your ability to tell the jury the whole truth.

•  Be comfortable with the technical truth.

Only lawyers can make telling the truth so hard….. But, seriously, don’t uncomfortable with the truth even when it is “I don’t know” or “I just don’t remember right now.”   Often the truth of your memory is, “I am not 100% sure but I think ….” 

2. Answer The Question

The Golden Rule of a deposition, no matter who you are or the subject matter of your lawsuit is answer the question.  Again though, there is more to it.

• Answer the Question, the Whole Question, and Nothing But the Question

It is important to set aside some of the social norms that govern behavior during your deposition. That does not mean be rude, it means be careful.

The goal of the deposition is not to tell your whole story.  It is just to answer the bad guy’s lawyer’s questions.  You have to listen carefully to the question and then answer only that question. The basic rule is DO NOT VOLUNTEER ANYTHING.

If a question can be answered “yes,” “no,” or “I don’t know,” fairly and truthfully, then answer the question that way. And then shut up.

If the defense lawyer wants more information, she can ask more questions. People have a natural tendency to fill in and anticipate questions.  Acting that way in a deposition will only lead to problems and a longer deposition

This does not mean to make every answer into one word answers. Sometimes answering the question requires a sentence or even a couple of sentences. Answer the question you have been asked – and then shut up. Seriously, shut up what you say is being recorded in black and white, don’t make jokes, don’t engage in banter, don’t try to answer the next question, just sit quietly.  .

• An exception

Rules have exceptions, one area that is often an exception to this rule of Don’t Volunteer is in discussing damages.   I have often had clients who have a hard time articulating all the impacts on their life of the injuries they have incurred at the hands of the defendant. It is important to spend time with your lawyer identifying concrete examples of the impact the injuries have had on your life. The defendant may make an inaccurate evaluation of the case if you are not able to fully explain those impacts.

3. Respond Consistently

You will likely have been asked to provide written answer to questions prior to your deposition.  Your responses to deposition questions need to be consistent with the answers in written discovery AND consistent with what you told the police for their report or the doctor who was treating you.

For example, describe your injuries to the same parts of your body as you described them when you saw the doctor. A deposition is an unfortunate time to talk about a knee injury that no doctor noted you had.

The bad guy’s lawyer loves it when your deposition answers are inconsistent with how your past recitation of the events is reported.  At trial, that lawyer will suggest to the jury that every inconsistency in your story is actually a lie.  And they do this because it works. 

4. Numbers Are Bad 

This is a subset of don’t guess or assume.  Human beings don’t do numbers very well.   Time, distance, speed, amount there is nothing that client’s get wrong more often and get made to look like liars because of than things related to numbers.

How far away was the other car when you first saw it?  How long did you wait at the light?  How far did your car lunge forward?  How much distance was left between their bumper and yours? How long were you unconscious for?

Even though you might feel like you SHOULD know.  The reality is you probably don’t. SO–DON’T GUESS at anything. If you find yourself ready to pop off with your best estimate, instead simply tell him “I would have to guess and I not comfortable with that.”  That is your answer and the attorney will have to move on.

5. Its Not A Fight

Your job is to answer questions. Your job is not to confront the lawyer or to be combative or argumentative.  Usually we don’t have these problems in Idaho depositions but If arguing has to occur, let your attorney do it. That’s why you hired him or her.  Just be patient, responsive, and candid.  Your role is to answer questions until there are no more questions to answer.

6. Your Deposition IS NOT the Time to Tell Your Story

If the lawyer asks you a question, answer it.  If the lawyer never asks about something, don’t worry about it. Your lawyer will help you tell your story at the appropriate time.  Your job at the deposition is just to answer the questions.

Sometimes a lawyer will pretend that they have some confusion about the case and need clarification. It’s an act. They do that in the hopes that you will drop your guard in an effort to help them understand and you will just start talking.  Getting you comfortable with talking is the first step to you saying something stupid that they can use against you.

Never forget, the defense lawyer is not confused, and is not your friend.

7. You Can’t win Your Case In A Deposition:

Some clients convince themselves that despite what I tell them if they are extra accommodating to the defense attorney or use the exact right word during their deposition that the defense attorney will get the insurance company to pull out its checkbook write a fair settlement check. I have never seen it happen.

A deposition is a place where if you are not careful you can lose your case, but you cannot really win it there.  If you hunker down, follow the basic rules and your lawyer’s advice and don’t let down your guard until the deposition is over, then you will have the best outcome you can expect.

Having Your Deposition Taken Is Work

Having your deposition taken will most likely be a new experience.   At the end of your deposition, if you follow the rules I’ve given you should feel tired and feel like you worked hard.  Oftentimes I have had clients tell me, even though they don’t want to do it again, it was an interesting, if not enjoyable, experience.

Post-script  This article for clients is based in part n an article I published for lawyers in the Idaho Trial Lawyers Association Journal in 1998.  It was interesting to find that old article on line.

Continue reading »]]> You can protect yourself and your family by following this advice if you are unfortunate enough to end up in a car accident.

1. Don’t Leave the Scene
Unless you have injuries that call for emergency transport to the hospital don’t leave the scene of an injury accident.  Not surprisingly, if you leave the scene there can be criminal charges  for being a “hit-and-run” driver. Wait for the police.

2. Make Sure Other People Don’t Need Help-Or Get Them The Help They Need:
The first thing you need to do is check yourself, your passengers and all others involved for injuries  If emergency responders  are needed call 911 or have a bystander help you do so.  Except in the rare instance a  person is near a pool of gasoline that you fear may ignite or some other like danger don’t move any person who  is unconscious or complains of neck or back pain. If you must move then stabilize the neck and move them as steadily and slowly while supporting their neck and back.

3. Call the Police
Under Idaho law,(Code section 49-1305) if an accident involves property damage of more than $1500, or if there is a  a physical injury, or death, you must call the police. Don’t forget to get  the police report number.

4. Exchange Information
If the police are called they will usually assist with this but be sure and get the names, phone numbers, addresses, drivers’ license numbers, license plate numbers, and insurance company and policy numbers of all the drivers.

5. How To Deal With Responsibility Responsibly
Many lawyers advise people to not apologize or admit anything at the scene. But, at least in part, we disagree with that idea. In the long run, if you made a mistake like if you know you ran a stop sign or pulled out in front a of a person who clearly had the right of way, we believe you will feel better just admitting it and taking personal responsibility.  We all know its the right thing to do. BUT, if you don’t know what happened or are unsure then the advice to not admit anything is correct. Sometimes the situation is chaotic or confusing and it might not be evident who was responsible for the collision.  So in short, we think the best advice is “don’t admit responsibility unintentionally or unnecessarily but be a human being and good citizen too.”

6. Talk to Witnesses
As noted, get the names, telephone numbers or addresses, of witnesses if you can. Also, write down (or record on your smart phone etc.) what they say.  You can also just simply get their name and phone number so that you or your attorney can contact them later.

7. Call Your Car Insurance Company
Report the collision to your insurance company as soon as you can after the accident.   Because its “your” insurance company it has some obligations to you. You should reasonably cooperate with your insurance company and tell them the truth about what happened and the extent of your injuries. BUT be sure that you don’t understate your injuries–or exaggerate them.  Quite often maybe even a majority of the time it takes at least a day or two to realize what problems are showing up. The adrenaline, endorphins and other parts of your physiological reaction can mask your injuries.  And, if the insurance company decides you have lied to them about anything, you can have real problems later.

8.  Be Careful with The Other Drivers’ Insurance Company
Inevitably the other Insurance company will want to take your statement. We have a whole post on issues related to recorded statements.  But in short, just be sure you understand that the other driver’s insurance company is not there to help you no matter how they act. Its real goal is to a pay as a little money as possible and to help the other driver involved. The other insurance company really wants to get information that it can use against you.  Our basic recommendation is don’t talk to the other insurance company until you have a lawyer representing you.

9. Make a Record–Take Pictures
Be sure and take pictures of all damage to your car– at the scene if possible.  Again cellphone cameras can be great for this.  And, if you have visible injuries–cuts scrapes bruises, etc– take pictures of those injuries as well. This type of documentation can be very useful to you and your attorney if you choose to hire one.

10.  Keep Track Your Medical Care
We recommend you keep a record of all the hospitals, facilities, doctors, physical therapists, chiropractors, or other medical professionals that you go to for care. Keeping a diary list of this data will help when it comes time to prepare appropriate summaries for your insurer and your attorney.

11. Finally–All People Injured in a Collision Should CALL THEIR LAWYER
Take advantage of this chance to get free advice from a lawyer  Just call us– (208) 386-9119. The sooner you talk to a lawyer about your situation the better off you will be. Having legal advice in a legal situation can protect your interests.  Issues can arise that will impact your claim and having someone to help guide you can make all the difference in the world.  Like most good personal injury lawyers, we often consult with people without charge to provide advice and guidance on protecting themselves from making some mistakes that we often see when people wait before they contact us.

We help people all over Southern Idaho.  Call us if you have any questions about your injury claim.  The initial consultation is always free.  Whether you are in Boise, Idaho Falls, Meridian, Kuna, Pocatello, Nampa, Caldwell, McCall,  Middleton, Mountain Home, Eagle, Twin Falls,  Payette, Gooding, Weiser, Star, Emmett, Blackfoot, Bruneau, Greenleaf, Wilder, Melba, Rupert, Cascade, Idaho City, or anywhere else in Idaho we are happy to help.

Continue reading »]]> As this Idaho State Journal Editorial discusses the American Legislative Exchange Council (ALEC) has been a particularly influential organization in Idaho. This is bad for citizens and CIvil Justice. Below are some excerpts from a
Thompson Reuters OpEd by Joanne Doroshow that discusses the anti-civil Justice goal’s of ALEC. There is a website called Alec Exposed that will teach you about the many problems ALEC is creating across the country as well.

For many years, the American Legislative Exchange Council (ALEC) has been a particularly influential organization that has promoted the agenda of corporate America and the political right in state legislatures nationwide, but about which the public has known little. ALEC’s members, who work together to draft model bills, consist of state legislators, who pay little to join, and corporations and trade associations, who pay hefty membership fees. These fees purchase influence over ALEC’s agenda and access to lawmakers.

preventing access to the civil courts for everyday Americans is a pervasive theme that runs through ALEC’s entire, corporate-backed agenda. ALEC has an entire division devoted just to preventing injured people from holding wrongdoers accountable in court. Its very active Civil Justice Task Force is co-chaired by Victor Schwartz, general counsel of the American Tort Reform Association, a corporate group seeking to limit the liability of its corporate members.

[S]ome ALEC bills target certain kinds of jury awards, specifically those that compensate for “non-economic” injuries like permanent disability, loss of a woman’s reproductive system, disfigurement, trauma, loss of a limb or blindness.

Women are also disproportionately harmed by ALEC “tort” legislation. Some ALEC bills would go even further than federal bills and completely immunize the pharmaceutical industry for manufacturing unsafe drugs and medical devices, which they’ve brought to market under lax government rules. Michigan already has such a law, and ALEC-affiliated lawmakers have proposed this legislation in other states, like North Carolina. University of Buffalo law professor Lucinda Finley, who has written extensively about jury verdicts, found that: “Reproductive or sexual harm caused by drugs and medical devices has a highly disproportionate impact on women, because far more drugs and devices have been devised to control women’s fertility or bodily functions associated with sex and childbearing than have been devised for men.” History shows that many such drugs and devices were made safer only after women and their families filed lawsuits against those responsible. Immunizing the pharmaceutical industry means that women will no longer have any recourse. The same can certainly be said for the increasingly medicine-dependent senior citizen population.

These under-the-radar liability issues may not be garnering the same kind of public attention as some other ALEC priorities. But the concerns they raise are just as poignant. And they put at risk not only the rights of . . . every person living in this country.

IN the end it comes down to the point that this graphic makes

Continue reading »]]> When we talk with our clients, sometimes they exhibit a misunderstanding of the role of injury law in Idaho.  And sometimes this misunderstanding is even more pronounced when discussing the law with state legislators who are not trained in law.  But the reality is that there are three basic roles that injury law plays in society:

• Apportionment of Responsibility Among Wrongdoers
• Provision of Fair and Just Compensation for Losses to Persons Injured Through Fault of Another;and
• Encouragement of Safety and Responsible Risk Management.

It has been noted by scholars that the very essence of “tort” law is making sure that those that cause a problem are personally responsible for the injuries they impose

Tort law especially exemplifies the lodestar of personal responsibility.
The concepts of proximate cause, comparative negligence, contributory
negligence, and assumption of risk all were created and became the law to
assess responsibility; that is, to apportion fault.

Traditionally the civil law of the French, more clearly than the traditions of the common law, has stated this philosophy of a personal responsibility perspective for the body of injury law.  For example, that civil code expressly states “every act whatever … which causes damage to another obliges him by who’s fault the damaged occurred to repair it.“  It is this idea that drives the rules underlying Idaho injury law.

These ideas of personal responsibility, compensation and safety are the ideas that have led to the creation of many of the specifics in injury law.  This is the basic social role of personal injury law — to make sure that people are held personally responsible for their negligence or intentional misconduct.  We have discussed many of those specifics in our post on the basics of Idaho injury law.   And, we have discussed the specific things tor which a wrongdoer can be be held financially responsible in an earlier  post.

One of the things that so-called tort reformers lose sight of is the overall role of tort law in making a safer society.  Coffee-makers that don’t burn houses down, table saw safety shields, children’s pajama that don’t cause horrific injuries in a fire, seatbelts that save people instead of injure them the list is nigh on endless.

This system works because the Seventh Amendment to the US Constitution and Idaho’s Constitution protect your right to a jury trial.  And this is important when it is unclear who is the person responsible for causing an injury.  Call us to discuss the personal responsibility of a person who caused an injury to you, we help people all over Idaho including in Boise, Meridian, Kuna,  Nampa, Caldwell, Middleton,  Eagle, Payette, Weiser, Mountain Home,Twin Falls,Emmett, Bruneau, Star, Greenleaf, Wilder, Melba, McCall, Cascade, Idaho City, Pocatello, Idaho Falls, Bonner’s Ferry and elsewhere

Continue reading »]]> It would seem like someone injuring you by causing a car accident would be the worst case scenario. But in a certain percentage of the time there is some salt added to the wound–the driver of the car that caused the collision didn’t have insurance.

Now what?  Well if you bought the coverage for yourself there are two things that will protect you: Collision Coverage and Uninsured Motorists Insurance. Hopefully, you made the choice to purchase these coverages. We discuss the various coverages available to you here..

The collision coverage will help fix your car (minus the deductible) and the uninsured motorists coverage will compensate you for your personal physical injury.

In Idaho, you are not required to buy such insurance but the insurance company is required to offer it to you.

Collision insurance is purchased to pay for the repair or replacement of your own car in the event of a crash  no matter who caused the accident.  Lenders often will only make a loan on a car with collision coverage.   Even if the bad guy has insurance it often makes sense to use your own insurance because they treat you more fairly.

There are three situations in which Uninsured Coverage applies:

1. The bad guy who caused the collision does not have valid insurance;
2. The bad guy is a Hit & Run driver who leaves the scene of the accident without giving any (or enough) information; or
3. The company that insured the bad guy who caused the wreck  becomes insolvent and cannot pay you.

Simply, if someone else is legally responsible for an accident, causes bodily injury to you, there is no insurance you can get to at all your own company will pay for the damages that you incur under uninsured motroists coverage.

There are three groups of people generally able to recover for their damages under uninsured coverage.

1. You, the insured person, (from many companies -whether in your own car, in another’s car, or as a pedestrian-Check your policy);
2. Your “household members,” which tends to be defined as  someone who lives with you who is related by blood, marriage, or adoption, including step-children or foster children- (again check your policy; and
3. A passenger  in your car;

So, you, your family, and those in your car will be eligible to receive benefits should you or they need them, even if the person who injured you got away.

There are all sorts of technicalities that various insurance companies put in their insurance contracts in this area.  For example with some you are required to arbitrate the claim and have given up your right to a jury trial, you can’t be using your car for a business (like a taxi) or if someone is using your car without your consent. And, there may be more than one insurance policy that has potential applicability to your accident. The order of applicability is counter-intuitive and at times unique to Uninsured motorists coverage.

In sum, the moral of this story is that if you think you shouldn’t consult a lawyer if you’re in an automobile accident with an uninsured vehicle, you are mistaken.

One of the services that injury attorneys can provide is dealing with the issues that arise in recovering damages for injuries and losses imposed on you by an uninsured motorist.

Our goal is to be the best injury attorneys in Idaho.  So if you have questions, about an uninsured car crash no matter what part of Idaho you live in call us for a free consultation. We have more than 40 years combined experience and help people all over Idaho. Including in Boise, Idaho · Meridian, Idaho· Kuna, Idaho· Nampa, Idaho· Caldwell, Idaho· Middleton, Idaho· Eagle, Idaho· Payette, Idaho· Weiser, Idaho · Mountain Home, Idaho · Twin Falls, Idaho · Emmett, Idaho · Bruneau, Idaho · Star, Idaho · Greenleaf, Idaho · Wilder, Idaho · Melba, Idaho · McCall, Idaho · Cascade, Idaho · Idaho City, Idaho

Holzer Edwards- We are Idaho’s Injury Lawyers.