If you are the plaintiff in a slip and fall case -- meaning you're the person who was injured and is filing the lawsuit -- you will almost certainly be called to testify at a deposition. What you say at the deposition is vitally important. Your testimony can directly impact the value and the viability of your case. Let’s take a look at the basics of depositions, and the kinds of questions you can expect as the plaintiff in a slip and fall case.
What is a Deposition?
A deposition is a question-answer session where an attorney interviews a witness under oath, to learn what the witness knows about the case and to determine how he or she will testify at trial. Does the witness appear credible? Does the witness come across as sympathetic or likable? How did the accident happen, according to the witness?
In any deposition, the examining attorney begins with background questions, such as name, address, date of birth, employment background, and whether the witness has ever given testimony before. It is not uncommon to ask whether the plaintiff has ever been a party to a lawsuit before and the outcomes of those cases.
Establishing the Facts
During this phase of the deposition, the attorney for the other side (meaning the property owner or their insurer) tries to learn how the injury occurred (according to you). A byproduct of this is that the attorney is pinning you down to a story you cannot later change at trial.
Attorneys have different styles. Some attorneys ask specific questions about every detail of the plaintiff’s day on the date of the incident. For example:
- “When did you wake up that morning?”
- “What were your plans for the day?”
- “What were you wearing?”
- “What did you eat and drink for breakfast?”
- “How many times had you taken that route to work?”
This information may seem pointless at first. But the attorney may actually be trying to gauge how good your memory is. Or, the attorney might be trying to establish whether you were rushing, and therefore caused or contributed to the injury. The attorney may be trying to see if what you were wearing (e.g., sunglasses, high heels, or a hat) contributed to the fall. And questions about whether you were familiar with the area may be asked to determine whether you had seen or knew about the dangerous condition before the incident.
The answers to these questions could actually make or break your case. In some states, a plaintiff’s damages are reduced by a percentage equal to their share of blame for the accident. In a few states, a plaintiff is barred from all recovery if they bear any degree of fault for the accident.
Other attorneys ask broad questions, such as “Tell me how the injury happened.” This kind of question is designed to encourage the witness to give as much information as possible. The attorney then asks follow-up questions. Even if a question calls for a narrative, it is usually best to keep answers short and to the point.
Regardless of the attorney’s style, you can expect to be grilled about the moment the injury occurred.
For example, a plaintiff who fell on the sidewalk could be asked:
- “Exactly how did you lose your balance?”
- “Where were you looking at that moment?”
- “How many people did you see in front of you on the sidewalk just before you fell?”
- “Where was your cellphone? Was it in your hand, in your pocket, or somewhere else?”
A plaintiff who fell down the stairs could be asked:
- “Did you place your entire foot on the step?”
- “Which part of your foot gave way first?”
Establishing Your Injuries
Your injuries and damages are just as important as how the accident happened. This means that your medical history is also fair game. Plaintiffs can expect to be asked about all previous hospitalizations and out-patient procedures, regardless of whether the prior treatment is related to your current injury.
As for the injuries stemming from the slip and fall, a plaintiff will be asked about the diagnosis, all current health care providers, past and future appointments, health insurance, plans for treatment, medications, time away from work, lost wages, and medical bills.
A common question is “What can’t you do today that you could do before the accident?” Here, the attorney is determining how the injury has affected your everyday life. Another common question is “Have you ever missed any doctor’s appointments? How many and why?” This question is designed to determine whether you are actively participating in (or neglecting) your recovery.
Remember, unequivocal answers could come back to haunt you. Plaintiffs who use words like “never” or “always” or “impossible” to describe daily pain or injuries could look dishonest. It is not uncommon for the defense to hire a private investigator to surveil the claimant and gather evidence of their participating in an activity that they claimed was impossible during the deposition.