Monthly Archives: March 2013

Preparing for Your Deposition: General Rules

What is a deposition?
In most cases, a deposition is a legal proceeding outside of the courthouse in which testimony is taken. Testimony in this legal proceeding is under oath, just as though you were testifying in court. That means you are subject to the penalties of perjury – unlike normal everyday conversations. Although there is no judge present, many judges will make themselves available by phone on short notice to address evidentiary or procedural matters. Usually, the deposition will be taken in the office of one of the attorneys in the case. The official court reporter will take down all that is said. Without a court reporter or sworn testimony, it is not a deposition.

How should I prepare for a deposition?
Review any documents that may be relevant. Get a good night’s sleep. Make yourself available for a pre-deposition meeting in the days or weeks before to prepare yourself. Dress in a professional attire, but not so overdressed that you are uncomfortable. Review your subpoena with an attorney who represents you.

What general tips should be kept in mind?

1. Tell the truth. Not telling the truth can seriously damage or destroy your case. It can lead to prosecution for perjury. Be absolutely truthful and true to yourself. Use the “give and take” technique: admit as much of the question as you can, then point out the areas that you cannot honestly answer because you may not know. If you realize that you may have made a mistake in your testimony, ask to take a break and let your attorney know before the deposition ends. Your attorney will make sure you have an opportunity to clear up the mistake.

2. Know what you know and what you don’t. Just because you are under oath does not mean that you suddenly know things that you did not know before or that you are obligated to answer questions outside of your personal knowledge. If you don’t know something, simply say you don’t know. Do not feel that because you cannot honestly answer a question that you are somehow going to be thought of as foolish or stupid. Most people do not know as much as they think they know. There are many reasons why you may not know something. It may never have been something that you were attentive to – or may have been something that you attended to and have since forgotten. It may be something you never knew or simply can’t bring to mind. Testifying about things you don’t know will not make you look more knowledgeable. In fact, it will undermine your testimony about the things you do know and damage your credibility. A person who acts like a “know-it-all” is not necessarily more credible; such a person may simply be perceived as someone who doesn’t have enough confidence to say “I don’t know.” A person who tries to answer everything, including things they don’t know, is like a baseball outfielder who tries to catch every ball and field every play. Know your position. Let other witnesses answer questions in their areas of knowledge. Do not guess. Do not be a “know-it-all.”

3. Try to stay in your “safe harbor.” A safe harbor is the area where you have privileged access to knowledge, sensation and memory. If someone asks you whether you have a headache or not and you say that you do, it would seem weird and absurd for someone to contradict you and say, “You don’t have a headache.” The reason: you are in your “safe harbor,” a place of privileged access where you alone can go. You alone know your present sense impressions, level of pain, personal history, and things that you perceived and your memory of them. If you are testifying as to what you recall, no one can disagree with your recollection. You may remember incorrectly or forget things, but your recollection is known to you alone. When testifying about things in the past, you are always testifying “to the best of your recollection.”

4. Try to know how well you know something and make distinctions where appropriate. There is a whole spectrum of certainty. I sometimes call this the seven levels of certitude, ranging from absolute certainty to complete ignorance.

Consider the following:

I am absolutely certain. There is no doubt.

I am quite certain or almost positive

I believe so.

I think that is probably so.

I think it likely, but cannot be sure.

I cannot be sure.

I simply do not know.

There are other levels, of course, but you can readily see that answers need not be “Yes” or “No.” Some questions simply cannot be honestly answered “Yes” or “No.” There are an equal number of levels of ignorance ranging from having once known something, but having it slip your mind, to having forgotten, to having never known. [Generally, I don’t know = I have never known, while I don’t remember = I probably did know at one time, but do not recall right now.] Do not be afraid to answer a question with “Yes” or “No” if you can do so accurately. But if there is doubt, then that just shows you are a thoughtful person who knows what you know – and gives you greater credibility when you are positive about something.

5. Timing. Take your time, think about the answers before giving them. Let the questioning attorney finish the question – pause with a breath – think – then speak. Do not confuse the deposition with a conversation, just because both involve speaking. Think of a deposition question as an e-mail which you must receive, open, read, think about, draft and revise a response, and then press “SEND.” When you press “SEND” is when you START to answer in the deposition. Do not think out loud. No points are given for answering quickly. In fact, answering quickly may simply leave more time for you to be asked more questions. Control over the timing is a real confidence-builder for you as a witness and has the added benefit of giving your attorney time to object. If your attorney does object, wait until you are instructed to proceed with your answer. Some objections may lead to an instruction for you not to answer or may lead to the question being reformulated. Wait until you know what you are supposed to answer. If this timing leads to you “losing” your train of thought, simply ask for the question to be asked again, do not keep talking in the hope that the question will “come back” to you.

6. Listen to the questions and only answer what is being asked. Be in the moment. Do not anticipate the next question or worry about how the answer might look. That will be confusing and lead to you acting defensive or “cagey.” Just look at the question before you and answer it plainly and honestly. It is not your job to argue with counsel or to make all facts in the case point in one direction. The jury will sort out the inferences. As a witness, your job is to answer forthrightly, without ulterior motive or guile. If you are asked a question, for instance “What did you have for breakfast?” answer that question. Do not comment on what you usually have, whether the breakfast was to your liking, who you ate with, where you ate, what your diet is or should be, or any one of a myriad of questions that are “related” in your mind. The answer: “Two eggs.” Asked where you live, means to give your address, not to describe your residence, how long you lived there, who else lives there, how you like living there, where you lived before, or whether you are planning to move away in the near future. Think of answering as though you were playing “Twenty Questions.” Be truthful, but do not expand upon your response. As a corollary of the above rule: Once you are finished with answering a question, if the answer is complete and truthful, remain quiet and do not expand or embellish it.

7. Be comfortable with silence. Silence is your friend. Silence means that you can remain in a posture of relaxed attentiveness. There is nothing for you to do. You should not feel obligated to “break the ice” or “fill in the silence” with additional facts. Many a case have been damaged by a witness who, uncomfortable with silence, added more testimony that had not even been asked.

8. Do not try to answer a question you do not understand or have forgotten. It often occurs that a question is unclear and hard to understand. A lawyer may have stopped, rephrased, corrected, and restarted a question, only to leave the witness unclear what question is being asked or even how many are being asked. Only answer one question at a time. If the question is unclear or is “compound” or “complex” such that you are not sure if you are answering one or more questions, STOP. Clarify the question. Make sure that you understand the time frame and subject matter of the question. Do not be too embarrassed to simply say: “I’m sorry, I didn’t follow your question” or even “I was trying to listen to your question carefully, but I’m afraid I’ve forgotten what it is. Would you be kind enough to restate it for me?” Or, even, “Can you rephrase that with different words? I’m getting mixed up.” If you do not understand a question, simply say so. “I’m sorry, I’m not understanding the question.”

9. Do not “close the door” on yourself. If you are asked whether “that is all that happened” or whether “you have told us everything you know,” do not agree with a simple “Yes.” Instead, have the humility to allow for the possibility that you may have overlooked something or forgotten something. “Have you listed all the symptoms/problems/conversations you had?” Say: “I have answered the questions you have put to me as best as I can to the best of my recollection and belief.” Or, say this: “We have been in this deposition for several hours now, so all I can say is that as I am sitting here now, I cannot recall anything to add to my previous answers.” Or more simply: “That’s all I can think of at the moment, but I can’t be positive I haven’t overlooked something.” All of these answers are preferable to simply saying, with finality: “That’s it.”

10. Maintain the correct attitude and demeanor. Be polite, but not servile. Do not argue with the questioner. Disregard the attitude of the questioning attorney. Think of it as “information” presented in verbal form. Breathe. Do not try to answer quickly just because the questioner asks the question quickly. Do not raise your voice just because the questioner raises his or her voice. Do not “rise to the bait.” Do not be sensitive to tone or non-questions or respond to remarks that are not questions. Do not engage in banter or joking. Do not use sarcasm as this cannot be well understood once transcribed and because it is often based on using tone to say the opposite of the words, it can be very damaging to your case. Be self-contained. Do not use obscenity or say anything that could be construed as derogatory or as a discriminatory remark or ethnic slur. Listen to the questions in a respectful manner. Wait until the question has been completed and then answer in a even-handed, thoughtful manner.

Concluding Thoughts. Make sure you have allowed enough time for your deposition. If you can, clear your calendar for the period of time required to complete your testimony. You are welcome to confer with your counsel at any time – so long as there is not a question pending. You are free to ask to take a break. If you find yourself needing water or a restroom break, speak up immediately. You are not required to undergo any discomfort. It is best that your testimony not be hurried or distracted by discomfort. If you feel ill, immediately let it be known and every accommodation will be afforded you.

Keep the above thoughts in mind and you will find your deposition to be a straightforward and comfortable experience.

As a witness, whether in your own case or that of another, your truthful testimony is vital to the system of justice. Your deposition testimony under subpoena – or otherwise – is a civic duty. You should take pride in the quality of your testimony and your ability to speak the truth to the best of your ability.


Why the Insurance Companies Want you to Distrust Juries

For decades, the American public has been bombarded with messages, the subtext of which is this: “Don’t trust juries!” Whenever I hear such consistent messaging, I always ask myself: “Who benefits from us believing this?” The answer: the insurance industry.

The insurance industry cannot control individual jurors. They can influence elections, fund candidates for the legislature, and buy TV time. But they can’t stop jurors from doing their job. This is why Thomas Jefferson wrote: “I consider trial by jury as the only anchor yet devised by man,by which a government can be held to the principles of its constitution.” Individual Americans doing their duty is the answer to tyranny and is the great equalizer. How else could individuals like you and I stand toe-to-toe with insurance companies whose assets dwarf those of many nations?

Juries consist of ourselves and our neighbors. We know the score. As jurors, we take our work seriously and perform this important work as a public duty. Jurors are paid a mere token amount for their work. The “runaway” juries that everyone talks about are largely a myth. I know this because, aside from the occasional outlier, juries in Washington State are thoughtful and conservative, following the instructions given them by the court. As the story goes, a headline entitled: “Dog Bites Man” is not going to get much ink. A freakish episode in which “Man Bites Dog” will! The rare and outlandish catch our attention: airplane crashes, serial killers, and runaway juries. I have been trying cases for thirty-five years and I have yet to see a jury whose verdict was not supported by the evidence.

When I discuss the common misperception that juries are prone to excess with my students and clients, many start off citing punitive damages. Here’s the truth: Not only does Washington State not have any punitive damages in tort or negligence cases, such punitive damages have been disfavored in Washington since we were a Territory. Moreover, the United States Supreme Court in a series of recent decisions has cut way back on punitive damages, favoring only low single digit multiples of the actual damages. In a recent study, we found that it was insurance defense counsel that was responsible for requesting a jury trial in 90% of medical malpractice cases filed in King County, Washington. If juries were so prone to high verdicts, the insurance companies would not be favoring jury trials over judge trials.

Insurance companies know that juries are conservative and not prone to excess. By raising a great hue and cry about “runaway” juries, they make us doubt ourselves and help to keep juries from ever daring to give generous awards. At the same time as insurance companies were complaining about a “suit happy” society, the federal Bureau of Court Statistics documented a 79% drop in federal court tort trials (from 1985 to 2002). And, here’s a news flash from the non-partisan Bureau of Justice that the insurance companies don’t want you to know: Plaintiffs won more often in tort trials to the bench (judge) (54%) than in tort trials to the jury (46%). Plaintiffs did better before judges than juries!

Jurors are careful to make sure that justice is done. The plaintiffs are forced to seek justice in court because they could not get fair treatment at the hands of the insurance company responsible – often their own insurance company to whom they have paid premiums for years. To file suit is definitely not a decision to be undertaken lightly; suing an insurance company means taking on a sophisticated, professional litigant, who can afford to play the odds. Individuals such as you and I can hardly afford to gamble. This is the only case we have!

As for lawyers, the only lawyers that you are asked to distrust are plaintiffs’ lawyers, those who represent people like yourself, who have been hurt as a result of the fault of another. We are not asked to distrust corporate lawyers, government lawyers, or insurance company lawyers. They collect fees on an hourly basis or are on salary. Plaintiffs’ counsel, by contrast are often paid on a contingent or percentage of the settlement or verdict. Contingent fees mean that the lawyer doesn’t get paid unless you do. They also allow someone who has been injured, can’t work, and who faces huge medical bills, to afford legal representation they would otherwise never be able to afford. So, you tell me, do you think a lawyer wants to take a frivolous case to a jury, knowing he is opposed by the resources of an insurance company and that if he loses, he gets nothing? In my experience, there is no downside to a frivolous defense made by the insurance company. They can delay, deny and defend to the bitter end, all the while collecting interest on money that should go to victims. So, I ask you, who is more likely to put forward a frivolous argument, an insurance company lawyer who gets paid by the hour, win or lose, or a plaintiffs’ lawyer who, if he makes a frivolous argument, is not only going to get nothing from the jury for his time, but faces court costs and possibly fines if the court finds the case to have been frivolous?

What to Look For in a Lawyer: The Basics

Basic Information. Every Washington lawyer is required to be a member of the Washington State Bar Association. The State Bar regulates lawyer discipline and has full-time staff in the Office of Disciplinary Counsel who assure compliance with the Rules of Professional Responsibility. Lawyer discipline is ultimately governed by the nine justices elected by the public to serve on our State’s highest court, the Washington State Supreme Court. I start off with this information because the Washington State Bar Association has a directory of all Washington lawyers and indicates whether they are in good standing and their disciplinary history. You can find this at by following the Resources for the Public tab, which will take you to “Find a Lawyer.” You can put in the name of any lawyer and find out if they are in good standing and whether they have been disciplined in the past. You will notice that the site refers to “public” disciplinary history. That is because if a complaint was filed and was determined to be without merit, it will not appear, which is fair since it was not supported by the evidence and the burden of proof was not met. This means that any disciplinary history you find has already been determined to exist and has already been “tested” by the disciplinary process and found to have been established by a clear preponderance of the evidence – or agreed to by the lawyer. As a starting point, it is important to know that the lawyer you are considering to represent you is in good standing and licensed to practice law. Although having had a disciplinary history is not necessarily fatal to your consideration of a lawyer, it is a good thing to know, just as you would probably want to know if your surgeon had been found liable for malpractice, for instance. Every attorney has a “Bar Number” and can be located. If someone you are speaking with claims to be a lawyer but doesn’t have a Bar Number or is not able to be located in the Washington State Bar Association directory, then Look Out!

The Numbers. Of the estimated 6,897.012 people (2012 Estimate) who live in Washington State, roughly 30,000 are members of the Washington State Bar. Some of the members of the State Bar, to which all Washington lawyers must belong, are serving as judges, some are retired, some are brand new. As a rule of thumb, you can figure that lawyers are just under half of one percent of the general population or about 1 in 200 people. This means that you may or may not know a lawyer personally or whether the lawyer you know is the best choice for you. The choice of lawyer will involve your considering a number of factors.

The Factors to Consider. There are many factors that you will want to consider. They basically include: (1) Personal Relationship with the Lawyer (Trust); (2) Experience; (3) Expertise in the Type of Case You Have; (4) Credentials: Educational Background and Training, Awards, Recognition, and Publications; (5) Disciplinary History and Status of License; (6) Personal Style; (7) Cost.

(1) Personal Relationship. Although on first blush you may think that you would prefer a lawyer to be someone you already know and trust, perhaps a family member, you may wish to think about this further. Representation can sometimes result in revelation of private matters that could prove embarrassing. Since communications to a lawyer are subject to confidentiality, you should be able to trust that these matters are kept to the lawyer. If the lawyer is a close family member, however, such sharing of intimate details can be confusing to family dynamics and may result in the blurring or compromise of professional boundaries and family or friendship boundaries. It might be better to keep your legal matters separate, just as you might not wish to see a psychologist, counsellor, or psychiatrist who was a family member. Having a family member represent you can confuse issues surrounding professional accountability. If, for example, a mistake is made, this may lead to hard feelings and compromise family relationships or strain friendships in ways that would not have occurred if you asked your friend or family member to help you find a lawyer – rather than have them undertake the representation by themselves. Having a family member assist you in working with a qualified, independent lawyer, may be the best of both world. I have often found it to be very helpful to have a family member with legal training help explain some of the decisions and issues in the case. This can also be a challenge for you and the lawyers, depending upon the relationship between the family member-lawyer and the independent lawyer, so it makes sense to explore the anticipated dynamics of that relationship – the earlier the better. In other words, everyone needs to know and respect how decisions are going to be made to avoid conflict.

(2) Experience. It is a relatively simple matter to determine the number of years a lawyer has been practicing. The Washington State Bar Lawyer Directory will provide you with the date of admission to the Washington State Bar. Of course, even a senior attorney, with valuable experience, may be a recent admittee to Washington State. It is useful to know – or to ask – whether the lawyer has trial experience in the type of case for which you are seeking representation. How many cases like yours has the lawyer handled? How were they resolved?

(3) Expertise in a Case Like Yours. Experience is not only the number of years in practice, but really should be analyzed in terms of relevant experience or expertise in cases like yours. Even a lawyer with many years of legal practice may not have experience handling cases like yours. A young, dedicated and talented lawyer may do better for you than an experienced attorney making his first foray into a new area. In the area of personal injury representation, it is also important to consider whether the lawyer’s experience comes from representing plaintiffs (injured people) or defendants (insurance companies and their insureds).

(4) Credentials. Some websites, such as, provide a description of the lawyer’s education, training, awards and publications. Such factors are not dispositive on the issue of whether the lawyer is the right one for you, but they are part of the picture. If a lawyer went to a prestigious school (Harvard, Yale, Stanford, Michigan, and others you may have heard of) this, at least, tells you the lawyer was a good student. Is this enough to be a good lawyer, good person, or good advocate for you? No. Many fine trial lawyers did not go to big-name schools; but, many did. I, myself, graduated from Harvard Law School, but I would never contend that this was the attribute that should be valued above all others. Since 1999, I have been teaching as an Adjunct Professor of Law at Seattle University School of Law and I can tell you that many fine local lawyers were former students from Seattle University. Awards, honors, recognition (and, yes, teaching experience) go a long way towards creating that ineffable trait known as “reputation.” Reputation is important in many ways, including whether, for instance, an insurance company in a personal injury case is going to regard your lawyer as one who “always settles” or one who “takes cases to trial.” These considerations are actually part of a computerized program (Allstate, for instance, uses a program called “Colossus”) that values your case based upon your attorney’s track record. If you are, yourself, a person who values educational accomplishment, then the fact that your lawyer has done well in this arena may be a positive indication that you will be able to respect and value your lawyer’s advice with greater comfort. So, to some extent, you must yourself determine how important these factors are to you. Credential provide a valuable objective measure of your lawyer’s past achievements, but they do not always reflect how your lawyer will perform for you in your case today. You might say that reputation is like the light from a distant star, telling you how the lawyer performed in the past (a very important indicator of future performance), but not necessarily telling you how the lawyer performs today.

(5) Disciplinary History and Status of License. As we have already noted, the State Bar website at will tell you whether a lawyer has been disciplined or whether a lawyer is currently in good standing. A lawyer who is suspended from the practice is not permitted to represent others or be paid for services. This is a basic inquiry and you should make sure that a person who holds themselves out as being an attorney can show you their Bar Number and prove that they are, indeed, licensed to practice. This is free and there is simply no reason for any consumer of legal services to be deceived as to this basic prerequisite for any practicing lawyer whom they are considering retaining for representation.

(6) Personal Style. When you are deciding to hire one lawyer over another, you should not be afraid of trusting your own “gut” instinct. Is the style of the lawyer one that works for you, that you enjoy, or is it off-putting, officious, pompous, or condescending. You have a right to have a lawyer who is willing to spend time with you to explain the law and your case. You are the client, after all, and the lawyer’s job is to represent you in a way that works for you. Taken together with some of the objective factors above, personal style may be a great indicator of the degree to which you will be satisfied by your representation.

(7) Cost. In legal services, like most other things (my daughters say “hair products” fall in this category), you do, indeed, get what you pay for. In personal injury cases, where a contingent fee is available, legal fees may be virtually identical between firms. The Rules of Professional Conduct make it clear that a client must remain “ultimately responsible” for the costs of litigation. So, beware of any lawyer who claims that you will have no obligation for costs at the outset: this is not proper from a professional standards viewpoint. Lawyers may advance costs (and many do and charge you interest until the case settles), but those costs ultimately will come out of your settlement. This subheading deserves its own blog entry. Lawyers should, and in the case of contingent fees (fees based on a percentage of the recovery obtained) are required to have, a written fee agreement. You should read this contract and you should never be afraid to ask how the fees and costs are handled. Once again, the Washington State Bar Association has set out how fees and costs are to be handled in the Rules of Professional Responsibility and in written Formal and Informal Ethics Opinions. Hiring a lawyer is entering into a business relationship and you should always consider professional qualities other than price. You should consider hiring a lawyer the same way that you would consider hiring a contractor: is it quality of work or only the lowest bid? It is nearly always a mixture of those factors, sometimes called “the lowest responsible bid.”

Finding a Lawyer. Now that you know what you are looking for, you can go about finding a lawyer. The obvious methods are: word-of-mouth, past experience, advertising, and the internet. I would like to suggest that all of these have a place. Recommendations from friends and colleagues who have had a positive experience are important. Recommendations from friends and colleagues referring you to their family members or friends who are lawyers may be less valuable. Your own past experience with a lawyer is likely (for good or ill) to inform your decision-making. At least, you have some experience and, if it was positive, this is definitely valuable intelligence. Advertising, however, is all too often self-serving and tells you nothing about the lawyer who will be representing you. Some large advertisers simply gather in clients and then refer them to other lawyers who have paid for the advertising or paid to receive referrals in a certain area of town. Such advertising does not assure you of a good “fit.” Many large firms bring you in with the impressive credentials of a senior lawyer, just to have you learn later that your case is really being handled by younger associates. This is not necessarily bad for your case, but it can come as an unwelcome discovery if you are expecting the lawyer you meet to be the lawyer who represents you. It is always fair to ask directly and clearly about who your lawyer will be and how the work is handled. If you go to a deposition, who will be your lawyer? If you go to trial? Who negotiates your case? Who goes with you to your defense medical examinations?

Sites such as attempt to give lawyers ratings based upon credentials, publications, speaking engagements, awards, and client recommendations. This can be a valuable resource. In King County, the Lawyer Referral Service of the King County Bar Association [ ] can help you find lawyers with expertise in specific cases.

Your case is important. Finding the right lawyer for you takes some work, but really pays off in every sense of the word. Your satisfaction with the outcome of your case will, in large part, depend on the expertise, experience, credentials, and personal relationship you have with your lawyer. A lawyer who inspires confidence, who works hard, who is easy to reach, who explains things well and as often as needed, who is patient, well-qualified, is also likely to be effective and efficient. This will truly improve the quality of your experience.

It is hard enough to be in a spot where legal representation is needed. It makes the experience so much better when you find the right lawyer for you and your case that it is well worth taking the time to do it right. Do your research. Listen to others. Trust your own feelings. Over the years, I have spoken to many clients who were dissatisfied with their legal representation and remarked: “I felt there was something I was uncomfortable with, but I didn’t feel comfortable making an issue of it.” If only they had listened to what they felt! Remember, litigation and legal representation is stressful. Having the right lawyer can make it much, much easier to get through it. I hope these remarks help you out.