Your Deposition Is Coming: A Virginia Trial Lawyer's Preparation Checklist
For most injury clients, the deposition is the single most stressful day of the case — more than filing suit, sometimes more than trial itself, because most cases settle before trial and the deposition is the one time the client personally faces the other side. It is also, in our experience, the day cases are won and lost. Here is how we think about it, and how you should.
What a deposition is
A deposition is sworn testimony taken before trial, authorized in Virginia by the discovery rules (Rule 4:5 of the Rules of the Supreme Court of Virginia). You will sit in a conference room — your lawyer beside you — while the defense lawyer asks questions and a court reporter takes down every word. There is no judge present. The transcript can be used later: to evaluate the case for settlement, to support motions, and to cross-examine you at trial if your story shifts.
Understand what the defense lawyer is actually there to do. It is not to learn what happened — the lawyer has the police report, the medical records, and written discovery. The goals are to assess what kind of witness you will make, to lock your testimony into fixed answers, and to find concessions: about fault, about prior injuries, about the limits of your damages. In Virginia, where any contributory negligence can bar recovery entirely, a single careless sentence about your own conduct carries more weight than in almost any other state.
The checklist we use with clients
1. Tell the truth. Always. This is rule one, two, and three — as a matter of integrity and of strategy. Cases survive bad facts; they rarely survive a witness caught shading one. If the true answer is unhelpful, your lawyer's job is to deal with it — but only if your lawyer knows about it first. 2. Answer the question asked — then stop. The most damaging deposition testimony is usually volunteered, not extracted. "Did you see the spill before you fell?" is answered "No," not "No, I was in a hurry that day because…" 3. "I don't know" and "I don't remember" are complete, honest answers when they are true. Guessing is how innocent witnesses create contradictions. You are not required to estimate speeds, distances, or times you cannot actually recall. 4. Wait for the whole question. Pauses are fine. The transcript does not record silence, and a beat before answering gives your lawyer time to object. 5. Know your medical history before they test you on it. Prior injuries and treatment WILL come up, and the defense already has the records. The client who forthrightly acknowledges the 2009 back strain and explains how this injury differs is credible; the one who "never had any back problems" is finished. 6. Don't argue, don't advocate, don't perform. Jurors decide cases; deponents just answer questions. Fencing with the defense lawyer never helps and always produces transcript. 7. Dress and behave as if the jury were watching — because in a sense it is. Many depositions are videotaped, and the defense lawyer is writing a mental report to the insurance carrier about how you will play in a courtroom. 8. Prepare with your lawyer — thoroughly. A real preparation session (often more than one) reviews the key documents, rehearses the hard topics, and walks through the traps below. If your lawyer's preparation is a pep talk in the hallway, you have the wrong lawyer.
The traps we prepare clients for
- The fault question in disguise: "Is there anything you could have done to avoid the accident?" In a contributory negligence state, this question is aimed at your whole case. The truthful answer is almost always about what the defendant did, not speculation about hypotheticals.
- The absolute: "So you've NEVER had neck pain before?" Absolutes invite impeachment. Truthful, qualified answers ("Not that I recall being treated for") are safer and more accurate.
- The minimizer: "Fair to say you're doing better now?" You can be honest about improvement while being complete about ongoing limits. "Better than the week of the crash — but I still can't lift my daughter" is truthful and complete.
- The silence: After you answer, the lawyer waits, expectantly. People fill silence. Don't. Your answer was complete when you stopped talking.
What this means for injured people in Virginia
A deposition is not an ordeal to survive; it is an opportunity — the one chance before trial to show the defense that you are credible, likable, and unshakeable on the facts that matter. Well-prepared clients routinely move their cases toward fair settlement with a single day of composed, truthful testimony. Unprepared ones hand the defense its trial themes.
Preparation is the difference, and it is the lawyer's responsibility as much as the client's.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.