In civil defense practice, particularly in the realm of personal injury litigation, the plaintiff’s deposition is one of the most consequential events in the life of a case. A well-executed and prepared deposition can often define a case’s trajectory, control damages exposure, open new avenues of discovery, and provide opportunities for impeachment at trial. However, a poorly executed or unfocused plaintiff deposition can make a rather defensible case harder than it should be. Defense lawyers can avoid the all-too-common scenario where they overvalue a case simply because the plaintiff “said all of the right things” at their deposition with little to no pushback or confrontation.
The purpose of a detailed plaintiff deposition is: (1) to obtain clear and unambiguous testimony, (2) to lock the plaintiff into their version of events and injuries, and (3) create a solid impeachment record for motions, mediation, and most importantly, trial.
The Deposition as a Discovery and Trial Tool
It is crucial that defense attorneys approach a deposition as a trial tool, rather than a mere fact-finding exercise. Every question should be asked with the future (trial or motion practice) in mind. Juries appreciate consistency, and when a plaintiff testifies differently at trial than they did at their sworn deposition, it can be devastating to their credibility. Perhaps unlike any other type of case, a personal injury case firmly relies on the sincerity and credibility of the plaintiff to establish the elements of a tort, particularly with regard to damages. Showing a jury the complete picture regarding injuries and their impact on a plaintiff’s life through effective cross-examination and impeachment hugely impacts the verdict.
It is the defense lawyer’s job to create a clear and unambiguous record of the plaintiff’s testimony. Ambiguous testimony undermines impeachment. Florida appellate courts have warned that impeachment is only effective when the prior statement is truly inconsistent, not merely incomplete or imprecise. See Smith v. State, 525 So. 2d 901, 904 (Fla. 1988). Attorneys should employ structured follow-up questions to clarify regularity, length of time, and severity of claimed symptoms. For example, testimony that a plaintiff experiences “constant pain” should be explained through questions that establish objective parameters, such as daily occurrence and whether pain prevents or merely complicates activities or hobbies. Without this specificity, trial impeachment risks appearing semantic rather than substantive, which jurors may find unimpressive. Additionally, counsel should require a plaintiff ensure the completeness of their testimony, especially regarding injuries and limitations. This will allow for impeachment if new injury claims arise at trial.
Because medical providers so often rely on the subjective complaints of their patients, the plaintiff’s deposition testimony regarding pain and subsequent improvement is central to evaluating causation and permanency. Florida courts recognize that subjective complaints unsupported by objective findings may be challenged through credibility evidence. See Brown v. Estate of Stuckey, 749 So. 2d 490, 498 (Fla. 1999). This is why establishing the timing of symptom onset, gaps or delays in treatment, reports of improvement, and decisions to end treatment or reject a form of treatment are vital to undermining later claims of permanency and lifelong impairment.
Plaintiffs will often be flippant or imprecise when describing their pain. As a practical tip, when a plaintiff reports “10 out of 10 pain” in their knee, and then proceeds to have to stand up to “feel” or “remind” themselves which knee has pain during the deposition (speaking from experience), establishing a clear record helps document the complaints of pain.
Correct Usage of Deposition Testimony for Impeachment at Trial
Impeachment at trial can often be clunky and disorganized if a lawyer is not familiar with the necessary procedural steps prior to that invigorating moment where you ask the judge, “May I approach the witness?” Effective impeachment takes practice, forethought, and composure.
“It is axiomatic and fundamental to our system of justice that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness’s present testimony.” See Elmer v. State, 114 So.3d 198, 202 (Fla. 5th DCA 2012). Under Florida Statute s. 90.608, “Any party, including the party calling the witness, may attack the credibility of a witness by: (1) Introducing statements of the witness which are inconsistent with the witness’s present testimony. This rule goes on to list four additional ways in which a witness can be impeached, however impeachment via prior inconsistent statement is by far the most commonly used.
In Florida, there are three necessary steps for proper impeachment. First, establish plaintiff’s current testimony from the stand is clear and unambiguous. (If this is not done, opposing counsel is sure to vaguely object by stating “improper impeachment!” and you are left trying to pick up the pieces and draw out a clear answer.) This can be done by asking, “To be clear, your testimony today is…” Secondly, you must establish the prior sworn testimony by ensuring the witness recalls giving a deposition (or other court proceeding) and being under an oath to tell the truth. Third, ensure the witness acknowledges being under that same oath at trial. And lastly, point opposing counsel and the judge to the page and line number of the transcript, and read the contradictory answer, along with the preceding question, into the record. In this instance, you do not need to give the witness a chance to explain their answer. That time has come and gone.
In conclusion, a plaintiff’s deposition is not merely a discovery formality but a foundational evidentiary tool. A detailed and methodical deposition locks in testimony, constrains damages narratives, and gives the defense powerful impeachment opportunities. By prioritizing clarity, completeness, and credibility evaluation, defense counsel will preserve the integrity of the discovery and trial process and enhance the jury’s ability to evaluate the honesty of a plaintiff’s claims.
Ultimately, the effectiveness of impeachment at trial depends almost entirely on the quality of the deposition that precedes it. In this respect, the plaintiff’s deposition is not only preparation for trial, it is the trial’s evidentiary backbone.