Preparing your drivers for deposition
Your driver is to be deposed. They are to be thrust into a foreign world for which they have neither any experience nor concept.
And out the other side of the process comes their “sworn testimony”, written in cement, as to the accident, training, investigation. It is a crucial event in the case.
Thorough preparation is the key to protecting your driver, and your company, from unnecessary or inadvertent problems from their deposition. Winging it is not an option.
A lot can, and has been, written about the preparation, but some key basics are as follows:
This process is new and foreign to a driver. It is the legal equivalent of the trepidation we have facing surgery. Put them at ease. Explain the event – everything about the event so there is no unnecessary angst on the day. Tell them the where, who, and when.
Where? Often the other attorney’s conference room. Although in today’s world, Zoom or Teams is more the norm. If that’s the case, make sure: they have access to the online platform; know how to access it; and know they cannot drive during the deposition (seriously).
Who? Assure them your attorney will be there. Who else? Other attorneys, maybe the plaintiff, court reporter, and maybe a videographer.
When? Give the time and date. You may also want to give it to their company’s operations to avoid last-minute issues.
What questions do they have? You can’t fill a full glass. Over my 40 years I learned you need to start by answering the questions that they have first. Many of these questions are what I planned to address in my prep. No problem. Taken care of.
But if you don’t “empty the glass” first, nothing you say will be fully absorbed as they will focus on their questions to the exclusion of the preparation.
You need to proceed accordingly. It’s about the truth. I start every ‘dep prep’ by making it clear we tell the truth. While I have no reason to think otherwise, it always is my first point.
I make clear that I can defend a bad truth, however, I will never defend a good lie.
It’s about the questions. We are there to answer their questions, not educate, explain, or expound unless requested. It is an easy process. Question. Pause. Think of the answer. State the answer. Next question. Period.
I remind the drivers that “the more you say, the longer we will be there.”
The more they say leads to more questions. Answer the question. The whole question. And nothing but the question.
Their expounding gives the other attorney more time to think of questions while the driver is speaking. This serves to benefit unprepared attorneys who will often skip over questions when not afforded the opportunity to think because answers are short and direct.
It’s about what you know. Don’t guess. There are few things you can do wrong in a deposition. After untruthfulness is guessing. It is actually a form of untruthfulness to give an answer you don’t know.
If you don’t know, the truthful answer is: “I don’t know.”
Think first, then talk. Think with your mind, not with your mouth. After the question, pause. Think of the shortest answer in your mind. Give the short answer. And then…stop! Next question.
Obvious, right? But in today’s world, unnatural. The norm today is to fill the void. Fight the instinct. Stop!
Importance of time and distance
Time and distance precision is critical in accident cases. It can determine speed and reaction time.
While “a minute” is considered brief in everyday conversation, it is a lifetime in the sequence of an accident. Convey this concept.
Show the known time and distances from investigation: ECM time and speed, measured distances. This puts the elements in perspective.
After the overview, have the driver respond to your questions so they think them through. Telling them is less absorptive than them generating the answers on their own.
While you are going through the facts of the accident, their mind is on this unfamiliar event, what this means to their job, etc. It’s human nature.
Conversely, when responding to your questions, they are focused on composing the response. Their mind is engaged.
Ask the questions. Get the answers. Discuss any elements of their answer that need be addressed as to the facts that are documented. But start with their version.
Cover 150% of the questions. There is no such things as overcovering questions. I see my job – no, responsibility – as to ensure that the driver never receives a question we did not cover.
Sensitize them to non-accident questions: education, family info, criminal history. Let them know that this isn’t personal. It’s a normal part of deposition.
This is consistent with the ultimate purpose of preparation – no surprises on the day of.
In today’s YouTube world, how they say it is as, if not more, important than what they say. Many live depositions are now recorded on video, especially if it is by Zoom.
Drivers need to appreciate the need for courtesy and calm. Don’t be baited. Don’t lose your cool.
Dress appropriately. I learned from a driver in my first trial that respectful comfort trumps formal discomfort. My driver told me that he was not comfortable with a tie.
Contrary to what I learned in law school and had seen on every TV trial, I heeded his suggestion. He did great. He was comfortable and credible.
The key is to make sure that the quality testimony is not obscured by the presentation. Have multiple sessions. How many times have you been driving home after an event and thought, “I wish I’d said…”
We all do. But we want to eliminate this, to the extent that we can, for the drivers after their depositions.
There should be at least three sessions, including one several weeks in advance.
A second session a week or so before the deposition. Answer questions they thought of after the first session. Review the highlights of what was covered in the first session. Repetition will develop familiarity.
Finally, avoid, or at least minimize, new elements on the morning of the deposition.
Don’t undermine the driver’s comfort or confidence that morning. Just address the points that need finalized.
There are many more tips and specifics, but these are the absolute minimum.
You and your company are going to have to live with that deposition throughout the case, and ultimately through trial. Make sure that you have done everything possible to ensure it is the most accurate that the driver can present.
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