If you're scheduled to give a deposition in your asbestos case, you're probably wondering how to conduct yourself, what you will be asked, and what to expect from this important step in the discovery process. Your attorney will help prepare you for your deposition, but having some basic information ahead of time can make you more confident about your testimony.
A deposition is an out-of-court proceeding where testimony is given under oath, and under penalty of perjury. The questions and answers are taken down by a court reporter. A deposition is usually held at the office of one of the attorneys involved in the case. If you're being deposed as the plaintiff, the defendant’s attorney will be the one asking questions. Your attorney will be present; a judge will not. It's important to note that in an asbestos case, it's not unusual for a deposition to occur over several days, either consecutively or at intervals.
As a client in any kind of injury case, giving a deposition is probably your most significant obligation. If you don’t give testimony, you probably shouldn't expect a fair settlement. So let's look at a few ground rules:
- Don’t guess. There’s nothing wrong with not remembering. If you can make a reasonable estimate (for example, how many years ago you worked with a certain person), that is usually fine as long as you state clearly that it is an estimate.
- Your attorney might object to a question. This is normal. Usually you will be asked to answer after the objection is made; if it comes to a dispute later in the case, a judge will rule on the objection and allow or strike the answer. Occasionally your attorney may instruct you not to answer.
- Remember that you are under oath. If you want to correct something you said, you should do so but should also be clear about why you are making the correction. It’s not at all unusual to have your memory jogged by one question about something you said several hours earlier. Just be sure to explain the reason you're now making the correction.
Learn more about what happens at a personal injury deposition.
What You'll Be Talking About
A deposition is your chance to tell your story. After you are sworn in, the questioning will break down (more or less) into the following categories:
- Background information: education, employment, family, etc.
- Exposure: specific asbestos products you worked with and how you were exposed.
- Damages: how long you have been ill, how severe the illness is, time lost from work, activities you are no longer able to participate in, expenses you have incurred (for example, medical co-pays). Learn more about damages in a personal injury case.
The exposure category of questioning usually takes most of the time. You'll be asked to identify or describe the asbestos-containing products you worked with, including labels, size, color, what you used them for, where they came from, and how you used them. You may be asked to describe in detail the steps you took to perform a particular action. If you say that you used a particular brand, you will be asked how you know it was that brand.
There will also be questions related to timing:
- What years did you use a particular product?
- When did you work at a certain company or site?
- How often or how long did you use a product?
Because asbestos was phased out of many products decades ago, a defendant may have manufactured both an asbestos-containing and an asbestos-free version of what you worked with, so the date you worked with the product is important. Your attorney may agree (“stipulate”) with the defense attorney not to ask questions about work performed after a certain date.
You will be asked questions about your illness, including what your symptoms are, who diagnosed you, how long you have had symptoms, whether your condition has changed, and how much your illness has affected your life. These factors go a long way toward determining how much your asbestos case is worth.
Responding to Questions
Although you can’t control everything, there are a few ways to take care of yourself and present a strong case.
- Answer the question asked. This is not as simple as it sounds, because in ordinary conversation we often respond to questions by answering the intent, not the question itself. The classic example is the question “Do you know what time it is?” Normally a person will respond to this question by looking at a timepiece and announcing the time. In a deposition, the correct answer to this question is “Yes” or “No.” Wait for the follow-up: “What time is it?”
- Avoid irony or humor in response to questions. What may be funny to everyone in the room can look very different to someone reading the transcript three months later.
- Listen to your attorney. Part of your attorney’s job is making sure you don’t give the defendant information they aren’t entitled to. This is one of the many reasons why you need an asbestos attorney on your side.
- Take breaks. The questions might become predictable and tedious, but it’s in your best interests to continue to answer as accurately as you can. If you find yourself getting frustrated or impatient, ask for a few minutes for a break. Your attorney might notice this before you do and ask for a break on your behalf.
What's next? Your deposition testimony helps bring the details of your asbestos claim into focus for both sides, so it's pretty common for settlement negotiations to begin in earnest at this point. While most asbestos cases settle, some do end up going to trial.