What You Need to Know About Giving a Slip and Fall Deposition

When you file a slip and fall injury lawsuit the other party will have questions. Learn what to expect when you’re facing a deposition.

Most slip and fall injury claims settle out of court, but sometimes you have to file a lawsuit before the at-fault party’s insurance company will agree to pay fair compensation.

Severe or complicated injury claims may require legal action before a settlement can be reached. After your attorney has filed a lawsuit on your behalf, the “discovery” phase of litigation begins.

Discovery is the process where parties try to learn everything about a case – the facts, witnesses, injuries, losses, and other important evidence.

The discovery process allows each side to interview key individuals to get on record what the individuals know about the incident and resulting injuries. The interview is called a deposition. When you are the person being interviewed (deposed), you are the deponent.

When you file an injury lawsuit, the lawyers who represent the at-fault property owner will want to depose you so they can learn more about you, and the circumstances leading to your slip and fall injuries.

Facing a deposition isn’t fun, but here you can learn more about what to expect and how to prepare for a deposition. And remember, you never have to undergo a deposition without your attorney right by your side.

How Do Depositions Work?

A deposition is a pre-trial interview of the parties to a case. The interview, also called an examination, is taken under oath.

If you filed a slip and fall lawsuit, the defense lawyers who represent the at-fault property owner will send a Notice of Deposition to your attorney.

The Notice of Deposition will contain: 

  • The Case Name and Number
  • Deponent Name and Address
  • Location of Deposition
  • Date and Time of Deposition

A subpoena duces tecum may come with the Notice of Deposition when the deponent is required to bring documents or other evidence to the deposition.

Under state and federal laws, a prospective deponent must be given reasonable written notice to appear.  Exactly what counts as “reasonable” can be different in different jurisdictions, but you’ll usually know a few weeks to a month in advance. Your attorney will work with opposing counsel to reschedule if there are legitimate conflicts.

Your attorney should be the person who receives any notices or other court documents related to your slip and fall case. If you are served a deposition notice or subpoena through the mail or any other method, immediately notify your attorney.

Your attorney may also schedule depositions of people who have information about your slip and fall incident, the hazard causing your fall, and your injuries.

Your attorney may choose to depose: 

Experts in a severe injury claim might be medical specialists, engineering experts, and even accountants who specialize in projecting future wage losses.

Importance of a Deposition

Depositions help with the exchange of information and facts. During the discovery process, the parties involved in a lawsuit seek to learn all of the facts associated with the case before going to trial. No surprises should take place once the trial begins.

Depositions are also a way for parties to assess their case’s strength. The parties can learn how effective a certain witness is or how strong an injured victim’s story is. For example, when the other side sees you are a very credible injury victim, or you have very convincing expert witnesses, the at-fault party might decide to make a much more attractive settlement offer to avoid trial.

How a Deposition is Conducted

A deposition usually takes place at an attorney’s office, usually in a quiet conference room.

The following people are usually present:

  • The deponent
  • The deponent’s attorney
  • The attorney asking questions
  • A court reporter
  • Sometimes, a videographer

The court reporter will capture all spoken dialogue during the deposition using a stenography machine, microphones, and sometimes video equipment. Be sure to speak clearly, don’t just shake or nod your head. Say yes or no instead of uh-huh or nu-uh.

In some cases, a deposition can take place via telephone or video call. This is usually reserved for when a deponent is sick or out of town.

When you are the person being deposed, you’ll be sworn in by the court reporter, then the questioning begins.

When the other side’s attorney begins asking questions, they will start by asking your name, address, and other general information. They might ask if you’ve taken any medications in the past 24 hours, or if there’s any reason you can’t answer questions.

The questions will become more and more direct. Often the same questions will be asked later in the deposition, in a slightly different way. You must pay attention and think before answering.

Your attorney can object to a question, but you are typically required to answer all questions.

Slip and fall injury victims are often asked about:

  • Personal history (e.g., family, criminal, and military background, places lived, and drug and alcohol use)
  • Medical history (e.g., prior hospitalizations and pre-existing injuries)
  • The facts leading up to the slip and fall and immediately after it
  • Physical injuries because of the fall
  • The losses and expenses from the accident (including pain and suffering)

Depending on the facts of a case and its complexity, the questions asked at a deposition can grow quite probing. The deposition process is also sometimes grueling. Your deposition might be done in a few hours, or stretch over a few days if you can’t tolerate long sessions.

Your attorney will make sure you have breaks, especially if you are still suffering from the effects of your slip and fall injuries.

When the at-fault party’s lawyer is finished asking you questions, your attorney may ask some follow-up questions to clarify issues for the record.

Depositions of Different Parties

Lawyers conducting depositions will start by asking all persons the same general background questions. However, they’ll then go into different lines of questioning, depending on the deponent’s involvement in the case.

A property owner might be asked: 

  • How long they’ve been in business
  • Whether their property was up to code
  • If they had policies in place for icy or rainy weather
  • If they had procedures to create incident reports

A slip and fall witness might be asked: :

  • Where were you located in the store?
  • Did something block your view?
  • Do you know the person injured?
  • Did you see the fall?

Most attorneys will have a list of prepared questions, but that’s only a starting point. Depending on the person’s answer, the line of questioning will continue until the attorney is satisfied that they’ve gotten all available information.

Preparations and Specific Questioning

Depositions can be physically and mentally stressful and exhausting. No one likes answering repeated questions from an aggressive attorney who wants to trip you up. Added to the difficulty is the strain of recounting details about your slip and fall accident and injuries.

Thorough preparation will go a long way in calming nerves, reducing anxiety, and staying focused during questioning.

Your attorney will not coach you on what to say, but they will help you prepare and provide guidance on what you should do if you don’t understand a question, don’t know the answer, need a break, and more.

Review Everything About Your Case

Your injury attorney will help you go through your case file with a fine-tooth comb. You won’t have to memorize every detail, but it helps to refresh your memory about the timing and sequence of events, and any prior statements you may have provided.

It helps to revisit:

  • Medical bills and records
  • Incident reports
  • Witness statements
  • Photographs of the scene of the accident
  • Weather reports (for slip and falls involving inclement weather)
  • Evidence collected showing the owner’s fault

If you’re claiming pain and suffering, you’ll also want to review any diary or journal that you documented your pain and hardships in.

Prepare for Specific Questions

Your attorney will have a pretty good idea of the types of questions you will be asked during your deposition. They will walk you through these questions and make sure you understand them.

Review sample questions and practice answering them. The goal is to provide clear, concise, and confident answers.

If you fell down stairs:

  • How did you lose your balance?
  • Which foot slipped first?
  • How did you slip, exactly?
  • What was the width and depth of the stairs?
  • Did your entire foot fit on the stairs?
  • What were you looking at while you were going down the stairs?

When weather caused your slip and fall: 

  • What type of shoes were you wearing on the day of your accident?
  • Could you have walked on a surface that was dry or covered with salt?
  • Did you know of the weather prior to leaving your house?
  • Did you see anyone else fall?
  • What type of shoes were you wearing?
  • Did you slip, trip, or was there some other result?

For falls caused by liquid on a store’s floor:

  • Was there a warning sign?
  • What were you doing just before slipping?
  • What type of flooring was there?
  • What color was it?
  • What do you believe the liquid was?
  • How much of the liquid was there?

Practice the questions more than once. If you can’t recall specific details for an answer, review the documents and records in your case to try and find important facts.

The Morning of the Deposition

There is a good chance your deposition will take some time, so make sure you’re well-rested.

Your attorney should provide information on the appropriate clothes to wear to the event. If not, dress professionally but comfortably. Avoid casual attire, like flip-flops, that gives the impression you’re not treating the deposition seriously.

Most importantly, try to relax. If you’ve effectively prepared, you’re halfway there. Your attorney will be there to protect your interests.

Handling Yourself During the Deposition

Staying mentally and physically alert throughout a deposition is very important. A lawyer’s questions can grow tiresome, if not exhausting. If you feel like you’re getting distracted or confused, ask for a break. Even a short break can do wonders to help revitalize yourself.

Don’t try to tough it out if you’re getting tired. A fatigued deponent may forget important details about a case or give too much information on a particular question.

Must Do’s During Your Deposition

Remember that you will be answering questions under oath. Answer all questions briefly and honestly.

Listen carefully to each question. If you’re confused about something, ask if they can repeat the question. If you still don’t understand what they are asking, say so.

Wait to answer until the person is finished asking the question.

Take your time to think about the question and your answer before speaking.

Speak clearly and answer out loud, instead of shaking or nodding your head.

Say “I don’t know.” If you don’t know the answer to a question, don’t guess.

Only answer the question that was asked. Short answers are allowable. The less you say, the better.

Actions to Avoid

Just as there are things deponents should do during a deposition, there are some actions to avoid.

You might be questioned by a lawyer who is overly-aggressive or heated in their approach. Some of the questions might seem insulting. Don’t let this frustrate you. If the lawyer conducting the questioning is completely out of line, your attorney will step in.

Never argue or yell at a lawyer. Don’t let them bait you into losing your cool. Remember, everything you say and do is being recorded.

Don’t volunteer information. Make opposing counsel do their job and ask the right question to elicit information in your case.

A deposition is not the time to air your grievances with the company or property owner that caused your injuries. Winning your case is the best way to get justice for your injuries and suffering, so maintain your self-control.

Example of Too Much Information

John fell while walking down the stairs of his health club and suffered a knee injury that required emergency care and physical therapy.

During the deposition, the club’s attorney asked John, “What were you doing just before your fall?”

John answers that he was using a workout machine to strengthen his legs. But then John went on to say that it was his first time using the leg machine and that he didn’t know if he was using it correctly. He continues, saying that he might have caused a bad muscle cramp because of his confusion with the equipment.

Here, John should have stopped with the fact that he was using a leg machine just before his fall on the stairs. 

Lawyers for the health club will use John’s testimony to argue that he was partly to blame for the accident because he didn’t know how to use the leg machine, and his misuse caused his knee injury.

Shared blame for his trip and fall accident can reduce or eliminate John’s eligibility for compensation. 

You cannot ignore a notice of deposition or refuse to cooperate. If you are ill, or have an unavoidable conflict, your attorney will arrange to reschedule your deposition.

What to Expect After the Deposition

After your deposition, you’ll have an opportunity to talk to your attorney about how it went and what it means for your case. If you have a strong case and are a credible injury victim, the at-fault property owner’s lawyer will want to continue settlement negotiations with your attorney.

In the meantime, your attorney will get a copy of the full transcript from your deposition. You and your attorney will carefully review the transcript. It’s possible the court reporter made an error, or misunderstood something you said. Or maybe you misspoke and need to make a correction.

You’ll also want to double-check dates, times, and other details that have been entered into the transcript. Corrections to your transcript (and the reasons for the corrections) must be written down in an “errata sheet” that is returned to the court reporter for inclusion in the final transcript.

If your case proceeds to trial, you can expect parts of your deposition testimony to be used as evidence. In the same way, your attorney will use testimony from the at-fault property owner’s deposition, and others who might have been deposed, as evidence to help prove your slip and fall injury case.

Depositions are a critical part of the discovery phase of litigation. Compelling deposition testimony can motivate the at-fault party to significantly increase their settlement offer. The last thing they want is for your testimony to be heard by a sympathetic jury.

Settlement negotiations can continue all the way until trial. Some cases even settle “on the courthouse steps” on the trial date.

A good personal injury attorney will help you through your deposition and continue to work towards fair compensation for your injuries.

If you’ve been badly injured in a slip and fall accident, you owe it to yourself to find out what an experienced attorney can do for you.

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Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>