First, what is a deposition?

It's really a question and answer session.

When you bring a lawsuit the defense lawyer has a chance to ask you questions.

This question and answer session takes place in your lawyer's office.

In his conference room to be exact.

There's no judge there.

There's no jury there.

Just you, your lawyer and a court stenographer.

The stenographer is there to record all of the questions you are asked and all of the answers you give.

Those questions and answers are transcribed and put into a booklet.

That booklet is your pretrial testimony.

That booklet is called a transcript.

That's your deposition transcript.

In legal circles a deposition is also known as an examination before trial.

When you bring a lawsuit, you put your medical condition in issue.

You're claiming that as a result of someone's carelessness, you suffered injury.

That means the defense is entitled to learn about you and your injury.

They do this through a process called 'discovery'.

What a trend-setting name.

Discovery allows the defense lawyer to get copies of your medical records.

It also allows him the opportunity to question you.

You might think this informal question and answer session doesn't really matter.

Actually, it does.

A lot.

The answers you give during your pretrial deposition carry the same exact weight as if you are testifying at trial.

The defense lawyer will ask you many questions.

Some are unrelated to the claims you are making.

Some have nothing to do with your injuries.

Some will have you scratching your head wondering why he's asking you such bizarre questions.

You will likely turn to your lawyer to ask him if you have to answer such a strange questions.

"Have you ever been convicted before," is one common question that comes up.

"Have you ever brought a lawsuit before," is another.

"Do you own your home where you now live?" is yet another.

"Do you have life insurance?" is a question I will explain in another article.

"Did you file tax returns for the past three years?" is one that will have you wondering if you're in the Twilight Zone.

You may feel like screaming at the defense attorney for asking such stupid questions.


You then ask your attorney the same question as you step out into the hallway to talk.

The short answer is that this is the 'discovery' process.

Even though some questions may seem off the wall and unrelated to your claims, the defense lawyer is entitled to ask and is entitled to get an answer.

He may not be able to ask that same question at trial, but during a deposition, it may be fair game.

Even if he gets an answer to a strange question, again, it doesn't mean he'll be able to use it later on at trial.

You need to know that during this pretrial question and answer session there are two types of questions which you should NEVER answer.

"Mr. Jones, did you meet with your attorney before we started this morning?" the defense attorney asks quietly.

"Yes," you reply.

"Tell me what the two of you spoke about," he then asks.

"OBJECTION!" I scream out in the quiet conference room.

My voice is raised.

I'm annoyed.

The defense lawyer knows better.

I need to remind him he can't ask what he just did.

This is a loud wake up call.

"Why not?" the defense lawyer asks sheepishly.

He knows the answer, but he justs wants to rile me up.

He also wants me to put on the record my reason why I'm objecting.

I'm happy to oblige.

I then turn to you, my client and say "I DIRECT YOU NOT TO ANSWER THAT QUESTION!"

You sigh in relief.

You didn't want to disclose what we talked about.

In New York, there are very few instances where I can say "I DIRECT YOU NOT TO ANSWER THAT QUESTION!" in a pretrial deposition.

This happens to be one of those instances.

Want to know why?

I'll tell you...

Anything that you say to your lawyer and anything he says to you is confidential.

It's private.

We call that type of conversation 'priviledged'.

The attorney-client relationship is a private, confidential one.

It's designed to encourage disclosure of your deepest secrets.

Your lawyer is ethically prohibited from disclosing those secrets.

Some may be deep dark secrets.

Others may be benign.

Regardless, the defense lawyer knows he will be unable to get a witness to talk about the conversation you had with your lawyer.

He can learn that you had a conversation.

That's fine.

He will try and imply that something sinister is going on because you talked to your attorney before your deposition.

Not true.

Every client talks to their attorney.

Every client must be prepared for their deposition.

The defense lawyer is just fishing for information.

He's throwing his line into the water, not knowing what, if anything, he'll catch.

This question is objectionable.

I have every right to tell you not to answer this question.

The defense lawyer can jump up and down and throw a tantrum all he wants.

He's not going to learn what we talked about.

But wait...there's more!

That's not the only type of question which is improper.

Let me give you an example...

Let's say this is a medical malpractice case.

You sued your doctor.

Claiming he was careless.

You claim his carelessness caused you injury.

You also claim your injury is permanent.

Your doctor of course denies all of this.

During the discovery process you will be questioned by the defense lawyer.

He represents the doctor whom you have sued.

During this pretrial deposition, the defense attorney starts asking you these questions...

"Mr. Jones, you're married, right?"

"You've been married a long time, right?"

"There are times when you and your spouse argue, right?"

You're now starting to wonder where he's going with these questions.

"There are times when you disagree with your spouse, right?"
"Uh, sure."

"HOW MANY TIMES DO YOU BEAT YOUR WIFE EACH NIGHT?" the defense lawyer asks with a straight face.

"WHAT???!!! WTF IS THAT TYPE OF QUESTION?" you demand to know.

Your attorney screams out a fraction of a second later "OBJECTION! I DIRECT YOU NOT TO ANSWER THAT QUESTION! IT'S PALPABLY IMPROPER!"

What just happened here?

I'll tell you what happened.

The defense lawyer asked you an off-the-wall question.

A question that is so far-fetched that I would be well within my right to tell you not to answer the question.

That question also assumes a number of facts.

It assumes you beat your wife.

It assumes you beat her at night.

It assumes this has something to do with your claims against your doctor, or

It has something to do with the defenses your doctor is raising in your lawsuit.

The question is wrong on so many different levels.

I need to reinforce that this question is NOT to be answered.

There is one small exception.

If you have a history of spousal abuse, the defense attorney may know about it.

If you plead guilty or were convicted of a crime involving beating your wife, the defense attorney will know about it.

The defense lawyer must have a good faith basis to ask the question.

He can't ask it just for kicks.

If you have that type of history, he may ask it just to see if you confirm it was you.

Otherwise, if you deny being convicted of such a crime, you may destroy your credibility simply from telling a little white lie.

What's the bottom line?

These are the only two types of questions I can tell you NOT to answer during a deposition in a civil lawsuit here in New York.

To learn more about this topic, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer