Deposing a Suspected Malingerer: The Use of a Deposition “Opening Statement”

WDC Journal Edition: Winter 2013
By: Russell M. Ware, SmithAmundsen LLC

I. Introduction

We generally think of a plaintiff’s deposition in a personal injury case as being divided into two sections, with one devoted to liability questions and one devoted to damage questions. However, there is a third portion of the deposition which requires attention. This is what we can call the “opening statement” of the deposition. Correctly done, it can be an important part of the process, especially if the plaintiff is suspected of malingering.

Most questioners use the initial portion of the deposition questioning to elicit the questioning to greet the witness, to elicit basic background information, and to remind the witness to make audible, verbal responses. But the introductory portion of a deposition—an “opening statement,” if you will—deserves more preparation, especially in a case where any malingering on the part of the plaintiff is suspected. This article will offer ideas to use in crafting the introductory portion of a deposition so as to make the deposition more useful in the defense of questionable claims.

II. Why an “Opening Statement” Portion of a Deposition Is Important in a Suspected Malingering Case

Experience teaches that most plaintiffs are sincere and well-intentioned when giving their deposition testimony. Even if they are affected by the very normal desire to make sure their injuries are not overlooked or unfairly minimized, and if they therefore do tend to embellish or even overstate injuries to some degree at a deposition, such conduct does not make the plaintiff dishonest or unworthy of compensation. In some rare cases, however, exaggerations at deposition arise not of the legitimate desire for adequate compensation, but of a desire to seriously deceive and mislead. A good deposition “opening statement” can help separate the great mass of well-meaning plaintiffs from the rare malingering plaintiffs, and also help the jury make the same distinction. This is done by employing preliminary questioning which elicits responses tying the plaintiff unequivocally and permanently to any deposition testimony which is later shown to be demonstrably false, and which therefore assures that the plaintiff's attempts at trial to disavow, explain away, or “sugarcoat” untruthfulness in such deposition testimony will be unsuccessful.

III. The Contents of an Effective Deposition “Opening Statement”

An effective “opening statement” —actually, a series of questions seeking plaintiff’s affirmative responses—has a number of aspects. First, statements by defense counsel in question form concerning the role of the questioner and court reporter, and how plaintiff’s counsel will be there to protect the interest of the plaintiff, are important; they will document that the plaintiff had a full understanding of deposition procedures. Similarly, previewing for the witness the topics which will be covered—how the plaintiff came to be hurt, how the plaintiff is doing now, and what the plaintiff’s condition was before the accident—will confirm the witness’s understanding of the purpose of the deposition.

The most important preliminary questions are those which cover and stress the importance of the testimony the plaintiff is about to provide, and which document right in the deposition transcript the plaintiff’s full appreciation of the significance of answers made at a deposition. Specifically, the plaintiff should be asked to acknowledge an understanding that the upcoming testimony is going to be the subject of a report by defense counsel to the defendant(s) so that the claim can be given fair evaluation. Even more importantly, the plaintiff should further be asked to confirm an understanding that a transcript of the deposition will likely be used by the judge and jury in this case to decide what compensation is owed to the plaintiff and what a fair resolution of the case should be. This acknowledgment by the plaintiff as to the impact of his or her deposition answers on the outcome of the claim can then be coupled with an assurance from defense counsel that the witness has a right to tell the questioner if he or she doesn’t understand the question or if the witness feels confused in any way. The “opening statement” can be concluded with questions seeking an agreement that everyone just needs the straight story about the plaintiff’s claim so that justice can be done.

Here is how such questions comprising an “opening statement” might look:

“Mr. Smith, you understand we are today going to talk about your accident and the injuries you sustained, don’t you?”. . . “As the lawyer for the folks you are suing, I’m going to write a long letter to my clients reporting what you tell us about the injuries you received, you understand that right?” . . . “You also understand my clients will use the information you give us about your injuries in deciding what the value of your case is, don’t you?” . . . “And you also understand that when the court reporter types up the transcript of your testimony today, your lawyer and I and ultimately a court and jury will use what you tell us to reach a fair result in your case and decide how much compensation you have coming, right?” . . . “For those reasons, you understand that it’s important that we get the most accurate information possible about the accident and the effect it has had on you and your life, alright?” . . . “So, Mr. Smith, if you don’t understand a question or if you feel in any way confused in any way about the question, please tell me that so that I can make it clearer, will you do that?”

IV. Using the “Opening Statement” at Trial

If the plaintiff is one of those claimants who has been intent on outright deception, the defense may well be able to obtain evidence for use at trial showing that the plaintiff has testified falsely at the deposition. (A plaintiff’s flat denial at a deposition of any pre‑accident symptoms may be contradicted by medical records, or an unequivocal claim at the deposition that the plaintiff is fully disabled from certain activities may be contradicted at trial by surveillance or other evidence.) In some cases, the unsuspecting plaintiff may repeat the deposition falsehoods on direct examination at trial. In many cases, however, the plaintiff must be “reminded” of the plaintiff’s deposition claims by defense counsel during cross examination at trial, such cross examination preceding and setting the stage for the defense’s dramatic disclosure of the contradictory evidence. In either type of case, when the plaintiff learns of the damaging defense evidence (such awareness occurring either before trial or at trial) and tries to claim that the deposition testimony now shown to be false was a product of inadvertence or mere confusion or lack of awareness of the importance of completeness and accuracy on the part of the witness at the pretrial deposition, the “opening statement” questions from the deposition can be used by the defense to pre-empt or overcome any such claim. The plaintiff can be directly confronted while on the stand at trial with the acknowledgement right on the deposition transcript of his or her full understanding of the deposition process, or the defense counsel can simply read the “opening statement” portions of the deposition to the jury at trial as part of the defense case.[1]

Then, during closing argument, defense counsel can pointedly remind the jurors that the plaintiff’s inaccurate answers at deposition were obviously given because the plaintiff realized money was on the line, and because the plaintiff made the decision to deceive everyone. Any attempt by the plaintiff to explain away the deceptive deposition testimony can be discredited. Reference to the “opening statement” during defense counsel’s closing at trial might look something like this:

I have to mention the testimony of the plaintiff at his deposition, which as you learned, is under oath just like the testimony given in court. You will remember that just about the first thing the plaintiff agreed to at the deposition was that he understood that whatever he said at the deposition was going to be used by the parties, the lawyers, the court, the jury and everyone to decide how much money he would receive in this lawsuit, and that it was therefore important that we have only the most accurate picture of his injuries. And what did he do when we asked him about [describe the injury or disability which is the subject of the impeachment evidence]? Did he tell us the truth he knew we all needed and deserved? Did he just give us the straight story as he promised to do? No, he tried to mislead us and deceive all of us. I have no doubt he figured the truth would never come out and he’d really cash in on his lawsuit.

V. Conclusion

It is only in rare cases that defense counsel will be called on to depose a totally untruthful plaintiff. Indeed, defense counsel may well not know that such is the case until long after the deposition is completed, and until further investigation and discovery have been undertaken. However, if an effective “opening statement” becomes a routine part of the defense deposition of the plaintiff, attempts by ill-motivated plaintiffs to explain away untruthful deposition testimony at trial will be unsuccessful.

[1] The admissibility of the questions and answers from the “opening statement” portion of the plaintiff’s deposition is not dependent on a showing that such preliminary portion of a deposition, in and of itself, contradicts or impeaches the testimony of the plaintiff. A deposition of the plaintiff may be used at trial by the defense for “any purpose.” Wis. Stat. § 804.07(1)(b).