All About Depositions in a Personal Injury Case

A deposition in a personal injury case is part of the fact-finding process of the lawsuit, referred to as discovery. Soon after the filing of a personal injury lawsuit, both sides of the case — the person who was injured (the plaintiff) and the person being sued (the defendant) — will engage in the discovery process. A deposition is an out-of-court proceeding in which an attorney questions a witness under oath.

During discovery, each side will have the opportunity to question the parties and witness of the other side. The deponent’s answers will often help both sides evaluate the strengths and weaknesses of their case, and prepare for trial.

Unless a case settles very quickly after the complaint is filed, a deposition will inevitably be part of the legal process. Below, we detail what you need to know about this process so you can be better prepared when the time comes.

What is a Deposition?

A deposition is a legal statement given under oath and under the penalty of perjury. Depositions typically occur during the discovery phase of a personal injury case (after the filing of a lawsuit, but before trial or settlement). The plaintiff and the defendant in a personal injury case can expect to have their deposition taken (more on this in the next section). But some witnesses do not voluntarily appear. Instead, their testimony is compelled by a subpoena.

Similar to what happens at trial, a lawyer will ask questions to the person being deposed (the “deponent”). In some circumstances, the deposition testimony may be admissible in court. In essence, depositions are the legal equivalent of testifying in court and take place with a court reporter present so that a record is made.

In a personal injury case, depositions can range from questions regarding a witness’ medical history to what a witness was thinking following an incident. Unlike trials where questions are more specific, deposition questions tend to be broader. Typically, there are no limitations on the types of questions that may be asked during a deposition.

What Is the Purpose of a Deposition?

Depositions serve two primary purposes.

• They allow personal injury attorneys to gather information and facts from witnesses the attorney believes will help their client’s position in a case or hurt the opposing party’s position.
• Depositions preserve a witness’ testimony and can lead to the revelation of additional relevant documents or other evidence.

How Are Depositions Conducted?

Depositions take place during the discovery phase. During the deposition, the court reporter will give the oath and explain that the deposition will be recorded. Before questions begin, the deponent is informed of the rules of the deposition.

Counsel will then begin to question the deponent in direct examination. Opposing counsel will have an opportunity to give a cross-examination of the deponent. Often there are several rounds of re-direct and re-cross by the attorneys.

When the deposition is finished, the court reporter will make a transcription of the testimony and provide copies of the transcript and any evidence entered into the record to both parties. Each party will use the information gathered during the deposition to reassess their case strengths and weaknesses.

Where Does the Deposition Take Place?

Depositions typically take place in the attorney’s office, often in a conference room. In cases of personal injury, however, depositions may occur elsewhere too. For example, in the case of injury, a deposition could take place at the treating doctor’s office. If the injury occurred on-site at a workplace, the deposition could take place there as well.

How Long Does a Deposition Take?

There is no set amount of time for a deposition. It can take anywhere from a few hours to several days, depending on the complexity of the case. You should consult with your attorney to better understand what to expect based on the specifics of your case. The good news is, you have the right to take breaks, and you do not have to give your testimony in one sitting.

What Kinds of Questions Will They Ask?

The defense attorney in a personal injury case will generally ask questions of the Plaintiff that cover the following areas:

• General background information such as name, address, date of birth, education, work history, etc.
• Information about your physical condition before the injury occurred.
• Information about the accident – How did it happen? Who were the witnesses? Did you talk to anyone after the accident? What did they say?
• Information about your medical treatment and physical condition after the injury occurred – What injuries did you sustain in the accident? Who treated you? Did you go to the hospital? Did you see your family doctor? How long did you have to stay home from work after your surgery?
• Information about the impact of the injuries on your life – What are you no longer able to do? What are you able to do but only with difficulty?

Whose Deposition Is Taken in a Personal Injury Case?

If you are on either side of a personal injury lawsuit — or you are a key witness — chances are you will need to testify at a deposition.

• Deposition of Parties

In almost every kind of personal injury case, at a minimum, the plaintiff and defendant will be deposed. And, if there are multiple parties to the case, they can all expect to be deposed at some point.

As the Plaintiff, you will almost certainly give a deposition. The court rules of every state (and those of the federal court system) permit all parties to a lawsuit to take the deposition of every other party. There are no exceptions. If you file a lawsuit, you have to be deposed.

• Deposition of Non-Parties

Nonparties are simply witnesses with knowledge about the facts of the case. For example, in a car accident case, any eyewitnesses to the accident would likely be deposed. In a slip and fall on a city property, the city contractor who is in charge of repairing the sidewalk may be deposed. In a slip and fall at a private property, the property manager may be deposed.

Other non-party witnesses can include physicians, nurses, and medical staff who treated the plaintiff. These individuals may be called to testify about the plaintiff’s injury and medical treatment, and about any statements or admissions that the plaintiff may have made about the incident.

Likewise, neighbors or friends can be subpoenaed to testify about the plaintiff’s lifestyle and what the plaintiff can or cannot do as a result of the injuries.

• Deposition of Experts

A testifying expert can be deposed by another party in the case. Deposition questions usually cover an expert’s qualifications, analysis, methodology, report, and key assumptions, including rejected analyses and unused information. Opposing counsel often use depositions to narrow the scope of an expert’s testimony by confirming what the expert is not going to testify about at trial.

Expert witnesses are people who have specialized knowledge about some aspect of the case such as the plaintiff’s medical condition, the value of the plaintiff’s damages, or the cause of the plaintiff’s injury. The defense might retain experts in similar fields to counter the plaintiff’s experts.

How Can a Personal Injury Attorney Help Me During a Deposition?

A personal injury attorney’s goal is to make sure that you are as comfortable and prepared as possible for your deposition. Your attorney will let you know everything to expect, how to answer questions, and help you to practice answering possible questions so that you feel prepared. Your attorney will also be present during the deposition so that you feel supported and so that they can object to irrelevant or misleading questions.

Our legal team at Duque Law Group is comprised of award-winning and nationally recognized trial lawyers who collaborate with nurses, doctors and medical experts regularly. Though we understand the nature of injuries, we are not physicians, and always encourage victims to seek treatment as soon after an accident as possible, and to follow up and heed their doctors’ advice.

Call us now at 1-877-241-9554 to learn more about your options. A free consultation is just a phone call away.