A court reporter swears in a woman who’s suing over a car accident, and soon the other side’s attorney asks a simple question: had she ever hurt her back before the crash? She says no. She isn’t lying; she just doesn’t remember. Years before the accident, she strained her back moving a couch and saw a chiropractor twice, and it healed so fast she forgot about it. The defense attorney has the chiropractor’s records on the table. Her honest mistake now gives the defense a reason to question the rest of her testimony. That’s a fair picture of what happens at a deposition in an injury case. The accident itself is usually the easy part to talk about, and the trouble comes from questions nobody prepared for.
What a Deposition Actually Is
A deposition is testimony under oath, taken outside the courtroom, with a certified court reporter recording every word. California’s Civil Discovery Act lets any party depose any person, including the injured person who filed the lawsuit (Code Civ. Proc., § 2025.010). Depositions happen during discovery, after the lawsuit has been filed, a stage covered in the firm’s article on the honest timeline of a California injury case. There’s no judge and no jury. The room usually holds the witness, the witness’s attorney, the defense attorney, and the court reporter, sometimes with a videographer. Many depositions now take place by video conference, which the Code of Civil Procedure permits (§ 2025.310).
The rules set practical limits, too. A deposition generally has to be taken within 75 miles of the witness’s home, or in the county where the case is pending and within 150 miles (§ 2025.250). Questioning by the other side is capped at seven hours of testimony, subject to exceptions such as a stipulation between the parties or a court order (§ 2025.290). Breaks are normal, and the witness can ask for one whenever a question isn’t pending.
What the Defense Attorney Is Really Doing
The defense attorney has two jobs that day, and only one of them is gathering facts. The first is locking in the testimony. Under Code of Civil Procedure section 2025.620, subdivision (b), an adverse party can use a party’s deposition at trial for any purpose, so an answer given in a conference room can be read to a jury a year later, right next to whatever the witness says on the stand.
The second job is evaluation. After a plaintiff’s deposition, defense counsel typically reports to the insurance company on how the injured person came across: whether the account held together, whether the answers sounded careful or overstated, and whether a jury would likely believe this person. That report often shapes how the carrier values the claim from then on. A calm, accurate witness who concedes the small points without a fight makes everything else in the testimony easier to believe.
Prior Injuries, Privacy, and What’s Off Limits
Questions about medical history come up in nearly every injury deposition. The defense will ask about earlier accidents, earlier injuries to the same part of the body, and prior treatment, because a pre-existing condition is one of the most common defense arguments in these cases. The honest answer is also the strategic one. California law doesn’t penalize an injured person for having an earlier condition. When an accident makes an old injury worse, the at-fault party is responsible for that aggravation (CACI No. 3927), as the firm’s article on pre-existing conditions explains. What hurts a case is a denial that the records later contradict, which is why going over medical history with the attorney before the deposition is part of any serious preparation.
The questioning does have limits. In Britt v. Superior Court (1978) 20 Cal.3d 844, the California Supreme Court held that filing an injury lawsuit waives privacy only as to the medical conditions actually at issue, not the plaintiff’s entire medical history. When a question strays into unrelated treatment, the attorney can object and, where a privacy right or privilege is at stake, instruct the witness not to answer. Conversations with the attorney are privileged as well (Evid. Code, § 954). The defense can ask whether a preparation meeting took place, but not what was said in it.
How to Answer a Question You Didn’t See Coming
A lot of deposition trouble comes from trying to be helpful. The better approach is to listen to the whole question, pause for a second before answering (which also gives the attorney room to object), and answer only what was asked. If a question can be answered yes or no, that’s usually the complete answer. A witness who volunteers a paragraph hands the other side new material to ask about. It’s the same discipline that applies when an adjuster asks for a recorded statement early in a claim.
“I don’t know” and “I don’t remember” are complete answers when they’re true. They aren’t a way to dodge, and a witness who can’t recall something at the deposition but suddenly remembers it at trial has a credibility problem that’s hard to repair. The distinction that trips people up is between estimating and guessing. A driver can usually estimate how far away the other car was; a witness who never looked at the speedometer shouldn’t guess a speed. When a question refers to a document, the witness can ask to see it before answering.
Near the end of a topic, defense attorneys often ask some version of “Is there anything else?” The answer “That’s all I can recall right now” is accurate, and it leaves room for details that surface later without making the earlier testimony look incomplete.
After the Deposition: 30 Days to Review the Transcript
The deposition isn’t over when everyone leaves the room. Once the transcript is ready, the court reporter sends notice, and under Code of Civil Procedure section 2025.520 the witness has 30 days (unless the parties agree to a different period) to read it, correct its form or substance, and sign or refuse to sign. A witness who does nothing is treated as having approved the transcript. Reporters do mishear words, and a single wrong number can follow a case all the way to trial. Substantive changes are allowed but visible to everyone, and the other side may ask about them later, so the transcript is best reviewed together with the attorney.
Preparation Is Part of the Representation
A deposition shouldn’t be the first time a client hears these questions. Kyle Wunderli prepares clients for deposition personally, including a review of prior medical history and a practice run through the kinds of questions defense attorneys ask. For clients with concussion or brain injury symptoms, where memory gaps can be misread as evasiveness, his certification as a Brain Injury Specialist through the Brain Injury Association of America shapes how that preparation is done. If you’ve been injured and have questions about how a case moves through litigation, call (949) 866-3833 or reach out through our contact page for a free consultation. There is no attorney fee unless we recover compensation for you. Costs and expenses may apply depending on the outcome of your case.
Frequently Asked Questions
Do I have to attend my deposition?
Yes. A party who receives a proper deposition notice is required to appear, and a court can compel attendance and impose sanctions when a party fails to appear without a valid objection (Code Civ. Proc., § 2025.450). If the date doesn’t work, the attorneys can usually reschedule by agreement.
Will my deposition be recorded on video?
It might be. The deposition notice has to state whether the testimony will be recorded by audio or video (Code Civ. Proc., § 2025.220). With video, a jury may later see how an answer was given, not just read the words, which is one more reason preparation is worth the time.
Can I bring notes to my deposition?
It’s usually better not to. Under Evidence Code section 771, a writing a witness uses to refresh memory generally has to be produced to the other side on request. Any documents worth reviewing should be reviewed with the attorney beforehand.
What if I get emotional during my deposition?
It happens, especially when the questions turn to the injury and how life has changed since. Asking for a short break is appropriate, and a genuine reaction to a painful subject isn’t something a witness needs to hide.
Disclaimer: The content of this article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship with Wunderli Injury Law, PC or any of its attorneys. Every case is different, and the outcome of any legal matter depends on the specific facts involved. If you have been injured, consult with a qualified California personal injury attorney about your specific situation.
Sources and Citations
[1] Any party may obtain discovery by taking the oral deposition of any person, including a party.
Source: Cal. Code Civ. Proc. § 2025.010. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=2025.010.
[2] Deposition of a natural person must be taken within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the residence.
Source: Cal. Code Civ. Proc. § 2025.250, subd. (a).
[3] Examination by counsel other than the witness’s counsel is limited to seven hours of total testimony, subject to listed exceptions and court orders.
Source: Cal. Code Civ. Proc. § 2025.290.
[4] Parties, attorneys, and the deposition officer may participate in a deposition by remote means.
Source: Cal. Code Civ. Proc. § 2025.310.
[5] Deposition notice must state any intention to record the testimony by audio or video technology.
Source: Cal. Code Civ. Proc. § 2025.220.
[6] Court may compel attendance and impose sanctions when a party fails to appear for a properly noticed deposition without a valid objection.
Source: Cal. Code Civ. Proc. § 2025.450.
[7] Deponent has 30 days after notice to change the form or substance of answers and approve or refuse to approve the transcript; failure to act gives the transcript the same effect as if approved.
Source: Cal. Code Civ. Proc. § 2025.520, subds. (b), (f).
[8] An adverse party may use a party’s deposition at trial for any purpose, even if the deponent is available to testify.
Source: Cal. Code Civ. Proc. § 2025.620, subd. (b).
[9] Filing a personal injury lawsuit waives medical privacy only as to the conditions placed in issue, not the plaintiff’s entire medical history.
Source: Britt v. Superior Court (1978) 20 Cal.3d 844.
[10] A defendant is liable for the aggravation of a pre-existing condition or disability caused by the defendant’s conduct.
Source: Judicial Council of Cal. Civ. Jury Instr. (CACI) No. 3927 (Aggravation of Preexisting Condition or Disability).
[11] Confidential communications between client and lawyer are privileged.
Source: Cal. Evid. Code § 954.
[12] A writing used to refresh a witness’s memory must generally be produced at the request of an adverse party.
Source: Cal. Evid. Code § 771.