If you are a party to a personal injury lawsuit, there is a good chance that you will have to be deposed. Being questioned under oath by an opposing attorney can be intimidating. While it may not be fun, it doesn’t have to be something to fear.
Deposition Definition: What is a Deposition?
Rules regarding depositions differ by state. This article focuses on factors that are common to many states. Your attorney should advise you as to the specific rules in your state.
First, some background. Personal injury cases are litigated in civil court — not criminal court. This means that the parties are arguing over money – no one is going to jail here. Next, if you are the injured party (the party doing the suing), then you will be referred to as the plaintiff. If you are the party being sued, then you are the defendant. After a lawsuit is commenced and papers called pleadings have been exchanged between the parties, the case enters the `discovery” phase. During this phase, plaintiff and defendant try to learn more about the strengths and weaknesses of each others cases through the exchange of documents (medical records, driving records, etc.) and other information. Your attorney will take the lead with this.
At this point in the process, the parties may ask to take the depositions of the other side’s key witnesses, one of which is you. Opposing counsel will send a notice to your attorney, requesting that you appear at a particular date and time to answer questions under oath.
Why Do They Want to Take your Deposition?
There are a few reasons. One: The other side wants to size you up, to see what kind of witness you would be at trial. Are you believable? Will the jury view you sympathetically? They also want more information from you about the accident. Some of this is simply an exercise in gathering information: they want to get to a point where they have enough information to determine a realistic settlement value for the case. They may also want to ask you some pointed questions. If, for example, the other side believes your injuries are not as serious as you claim, they may pursue a line of questioning aimed at showing you were not hurt that badly. Finally, they are looking to make a record (as discussed further below, there will be a written transcript of everything that is said at your deposition). The transcript can be used at trial, should you provide a different answer there to a question asked during your deposition (this is known as “impeaching a witness” ).
What to Expect?
Depositions do not take place in a courtroom. There will be no judge present. Most likely, your deposition will take place at the office of either your attorney or the other side’s attorney. When thinking about your deposition, picture yourself in an office building conference room. Your attorney will be there, sitting next to you. Also present: the other side’s attorney and a court reporter. The other side’s attorney will sit across from you; the court reporter will usually be at one end of the table. His or her job is to type out a written record of everything that is said.
Before the deposition begins the attorneys will discuss certain procedural matters, such as the preservation of objections for trial (you don’t need to concern yourself with this). When the court reporter is ready, he or she will swear you in. From that point on, everything you say will be recorded by the court reporter (unless one of the attorneys asks to temporarily go “off the record”).
The opposing attorney will begin with some introductory remarks describing the deposition process and letting you know that you can ask for a break at any time. The attorney will then ask you a series of background questions (where you live, your education, what you do for work and so on) before getting to the events surrounding the accident. If you were injured in the accident, you will be asked about the extent of your injuries and medical treatment. Throughout the deposition, your attorney may object to certain questions posed by the other side: in most instances, after objecting, your attorney will tell you that you must still answer the question. There are very few reasons for which your attorney may instruct you not to answer a question. If the opposing attorney is harassing you or being overly argumentative (This rarely happens!), your attorney will intervene for you.
Your deposition could last anywhere from a half hour to a full day — sometimes more. Relax: in a typical personal injury case a deposition will last a couple of hours, at the most. As noted above, if you need a break you can ask for one (or more), though you may be required to answer the question most recently posed to you first.
Finally, about a month after your deposition you will get a copy of the transcript to review. At that time you will be able to correct mistakes in your testimony — you are not typically allowed to make out-right changes to the substances of your answers.
Your attorney will help you with all of this! He or she will prepare you thoroughly, including getting you ready for any important or problematic questions that they think might be asked of you. If you have specific concerns or worries, make sure to ask them.
No one wants to be deposed, but it helps to remember that a deposition is a regular part of the litigation process and it will get you one step closer to putting this whole thing behind you. Once you get past your misconceptions about depositions and realize that your attorney will be by your side throughout, you should begin to see that while it may not be fun, there is really nothing to fear.