A deposition is a question-answer session where an attorney interviews a party or witness under oath. Depositions are an important part of the pre-trial discovery process in any personal injury lawsuit. The answers to these questions are recorded by a court reporter, and the information that is gleaned helps both sides of the case prepare for a possible settlement or for trial. A deponent's answers at a deposition can also be used to impeach any later inconsistent testimony at trial. Let’s discuss what takes place at a deposition in a personal injury case.
Who and Where?
Depositions typically take place in a conference room (usually at a law office), although in rare cases, they can take place in a courtroom. The following people are usually present:
- the deponent (the person being questioned)
- the deponent's attorney (if he or she has one)
- the examining attorney
- an attorney representing each party to the case
- a court reporter, and
- a translator (if applicable).
The plaintiff and/or defendant have a right to be present, but they are not required to appear.
The deponent is sworn in by the court reporter at the beginning of the deposition. It is important to remember that this oath to tell the truth is the same oath that is taken by a witness at trial. Meaning, what is said at a deposition is sworn testimony subject to the penalty of perjury (lying under oath). The testimony is recorded in a transcript. (Some depositions are videotaped.) In some circumstances, deposition testimony can be admissible at trial.
Question and Answer
The purpose of a deposition is to learn what the deponent knows about the case and to determine how he or she will testify at trial. The examining attorney begins with background questions, such as name, address, date of birth, employment background, and whether the deponent has ever given testimony before.
The plaintiff and defendant in a personal injury case can also expect questions regarding:
- past and current injuries and related medical treatment
- financial standing (e.g., current debts owed)
- the incident that gave rise to the lawsuit (how it happened, what was seen, when, where, and who was present)
- who the deponent has spoken to about the incident
- the deponent's criminal history and driving record (this is usually limited to convictions, not arrests)
The plaintiff can also expect questions about how the injury has affected their daily life. In addition, both plaintiff and defendant may be asked whether they were ever a party to any prior lawsuits, and the outcome of those cases.
Note that even if the defendant was not injured in the incident, the defendant may be asked about medical treatment that could have affected the defendant’s ability to drive or recall the incident.
Eyewitnesses can expect questions about their ability to see the incident or their firsthand knowledge of how the injury occurred. They may also be asked about possible bias toward one of the parties.
Deponents are sometimes shown documents, photographs or even video to refresh their recollection.
The attorneys for both sides will observe the deponent’s testimony and consider whether they seem credible. For instance, does the deponent have a good recollection of what happened? Does the deponent seem overly defensive? All of these factors will affect how a party views the strengths and weaknesses of their case.
If an expert witness has been retained (as in a medical malpractice case, for example) and is deposed, they can expect questions regarding:
- their curriculum vitae, including publications
- the amount that they are being paid to prepare for and appear at the deposition
- the number of times they have met with the attorney by whom they were hired
- documents they reviewed to prepare for the deposition
- how many times they have previously testified on behalf of a plaintiff and defendant, and
- the basis for their opinion (that the defendant caused the plaintiff’s injury, for example).
Parties want to prove that the opposing side’s expert is either not qualified to give an opinion, or lacks a reasonable or credible basis for their opinion.
After the examining attorney has completed the questioning, the remaining attorneys in the room can examine the deponent as well, including the deponent's own attorney. These questions are usually follow-up questions or points of clarification, and do not take as long.
Depositions can take as little as 30 minutes, or as long as several hours. In larger cases, depositions can take place over several days, or be split up over the course of weeks. Sometimes, a deponent can be called back for additional questioning later on in the case. This all depends on how much information the deponent has to give and how many attorneys will be questioning the deponent.
Unlike a trial, there is no judge present at a deposition. So, if and when the deponent's attorney objects, the objection is simply noted for the record and the questioning continues. The deponent's attorney can, however, instruct the witness not to answer a question that calls for information protected by the attorney-client privilege. And, in a contentious deposition, the attorneys may call the judge to make a ruling on an objection before the deponent answers.
Many attorneys advise their clients to pause before answering, in order to allow the attorney time to object. Once the answer is on the record, there is a very real possibility that it can come up at trial to make the deponent look untruthful or confused. So it is always best to keep deposition answers as short and to the point as possible.