The Deposition in a Personal Injury Case

During a deposition, you give sworn testimony under oath as part of the discovery process of the injury lawsuit.

A deposition is a tool used in the pre-trial "discovery" process of a personal injury lawsuit, to gain information and evidence. In this article, we'll explain the deposition process and what to expect.

What is a Deposition?

At a deposition, a person appears at a specified time and place and gives sworn testimony -- under oath, usually with a court reporter present so that a record is made.

Depositions typically occur during the discovery phase of a lawsuit (after filing of a lawsuit, but before trial or settlement). Through the use of a subpoena, a person can be compelled to attend the deposition. Similar to a trial, a lawyer will ask questions to the person being deposed (deponent). In some circumstances, the deposition testimony may be admissible in court.

Compelling Attendance at a Deposition 

Subject to limited exceptions, you can depose any person with knowledge of the facts of a lawsuit. Naturally, many people will not voluntarily appear at a deposition out of pure good will. Depositions can be very long and stressful for a deponent. But a person can be compelled to attend a deposition through the use of a subpoena.

A subpoena must be served on the potential deponent through service of process. This typically involves hiring a process server. A subpoena commands a person to appear at a specific place and time to give testimony. The actual subpoena must follow strict guidelines such as naming the court and title of the action, commanding attendance, and including specific text. There are protections afforded to a subpoenaed person. A motion to quash or modify a subpoena may be filed with the court for several reasons including failure to allow reasonable time to respond to the subpoena and where the subpoena requires a person to travel over 100 miles.

Reasons for Holding a Deposition in an Injury Case

There are several reasons for taking a deposition of a person in a personal injury case including:

  • To obtain important facts about your case;
  • To gather information about the strengths and weaknesses of your case;
  • To examine how a person will testify at trial; and
  • To determine how and when the injury occurred.

Structure of a Deposition in an Injury Case

Similar to any other deposition in a civil case, you must give reasonable notice to the other party before holding a deposition, and the deposition may be in almost any location. Many attorneys choose to hold the depositions at the law firm office or at a court reporter’s office (there must be a court reporter present to record the entire deposition, and the person who scheduled the deposition is responsible for the costs of the court reporter).

Similar to trial, there is an examination by one attorney, and a cross-examination by the other attorney is permitted. During the questioning by the examining attorney, the other attorney can object. Unlike a trial, there is no judge to rule immediately on the objections. Therefore, the objection is noted on the record, but the questioning still proceeds. A deponent can only be instructed to not answer a question in very limited circumstances.

Deposition Strategy in an Injury Case

As part of discovery, depositions are used to obtain information that will help your case. It is important to ask questions that relate to the facts of your case and the elements of the claims in the lawsuit.

For example, suppose you were injured when you tripped on wooden stairs leading to a restaurant’s restroom, injuring your leg. You choose to depose the restaurant’s general manager. In this type of case, you want to prove that the restaurant was negligent. Specifically, you need to show that the restaurant had a duty to keep the stairs in good condition and that the restaurant’s failure to do so caused your leg injury. In this case, you should ask questions at the deposition such as:

  • When was the last time that the stairs were fixed?
  • How often do you inspect the stairs?
  • Who is in charge of making repairs in the restaurant?
  • How old is the restaurant building?
  • Are there lights above the stairs?

If the restaurant was conducting the deposition, its attorney should ask questions that help to show that the restaurant regularly maintained the stairs and that it did not cause the injury.

Many attorneys prefer to ask broad questions and allow the deponent to provide a long-winded answer. Often, the deponent will inadvertently admit a key fact when they go beyond the boundaries of providing a concise answer. So, an attorney defending the deposition will probably advise the deponent to provide short and concise answers.

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