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The deposition is the most important pre-trial procedure in accident cases. Thus, it is critical that the client is well prepared for the extensive and rigorous questioning they are likely to undergo by defense counsel.

We recommend strongly that you prepare the client for their deposition the day before, although the norm is for preparation 1-2 hours before the deposition. This method takes into account the fact that your client is likely to be nervous and will be able to retain more information knowing that they have as much time as necessary to prepare.

Remember that whatever documents the client reviewed in preparing to testify must be exchanged with opposing counsel–thus, make sure that the client has not reviewed documents without informing you. Further, don’t allow your client to write down information that you discussed–there are numerous accounts of lawyers preparing instructions for their clients which then become discoverable at the deposition.

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In New York personal injury cases, the videotape is a frequently used tool of defense lawyers, and can be very damaging at trial if the video contradicts the client’s deposition testimony concerning their physical limitations as the result of an accident.

In order to properly prepare clients for the likelihood of the surveillance video, we recommend the following:

1. Advise the client to warn neighbors that they expect videographers to come by, seeking information as to their daily schedules and activities, and that the videographer will often claim that they are working for the client or need to speak with them about the accident;

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When clients are injured in various types of accidents in New York, including motor vehicle, slip/trip and falls, and other accidents due to unsafe conditions, they are invariably required to attend examinations known in the legal community as “IME’S.” Simply put, defense attorneys and insurance companies retain doctors who are well known in the community as virtually never finding any permanent injury, disability or medical condition. Armed with reports by these so called “independent” medical examiners, who are more than happy to charge several thousand dollars to testify to their findings at trial, insurance carriers are emboldened to hold firm with either “no pay” or minimal offers of settlement, in the hope that plaintiff attorneys will not want to expend the time and money to litigate cases through trial–thus, cases settle cheaply.

Our firm has a list of instructions that we provide to our clients prior to these examinations, which we have found to be invaluable in cross examining insurance company doctors at trial. First, in many instances, the insurance company doctor’s staff will request that the client fill out a complete questionnaire, as if your client was a patient. We instruct our clients that other than basic information such as name, age, and medical complaints, they should refuse to complete these questionnaires, which often are used by the insurance company doctors to attempt to obtain inconsistent facts or information not relevant to the case.

Also of great importance, these doctors frequently attempt to conduct a mini-deposition, with such questions as “Where were you looking just before the light changed?” or “Did you see the ice before you fell?”. These deposition type questions have nothing to do with the medical examinations, and are clearly asked by the doctors for the sole purpose of assisting the defense attorney in litigating the case. Clients must be strongly cautioned that the only proper inquiry by the doctor during the history portion of the visit is as to the injuries, treatment, medications, pain, disability, and prior medical history.

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Several insurance companies, and in particular, Allstate Insurance Company (“The Good Hands People”) and State Farm Insurance Company (“The Good Neighbors”) use a computer system known as “Colossus” to evaluate their personal injury claims. If Colossus decides that your case has little or no merit, no claims adjuster with the benefit of a police report, medical records, and hospital records can overrule or modify that decision.

Instead, Colossus considers a number of preliminary matters before looking at your individual case and injuries, including performing a “calculation” to attribute “severity points” to claims. As described by Ron Miller at marylandinjurylawyerblog.com, Colossus assigns a base severity rating, which is the starting point in the personal injury claim evaluation. Additionally, Colossus will evaluate the experience of the attorneys involved in the case and the venue of the action, After consideration of these factors, the system counts up the points and converts them to a dollar value.

By using Colossus, insurance companies try to reduce the value of your case, and won’t take into consideration factors such as the pain of an individual injury, loss of enjoyment of life, the effect on marital or family relationships, or the inability to perform activities of daily living.

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