When a personal injury lawsuit is filed after a car accident, both sides develop their respective cases through a process called "discovery." This is the legal means by which parties to a lawsuit obtain information from each other. One key discovery tool is the deposition, when the "deponent" (a party to the case or a witness) gives out-of-court testimony, under oath, in response to questions asked by an attorney. This article explains the basics of depositions in car accident injury cases.
Generally, the person being deposed, the parties to the lawsuit, attorneys for the parties and a person qualified to administer oaths are all present at a deposition. The person administering an oath is usually a court reporter. He or she will also be recording all testimony given at the deposition and will prepare a written transcript of the deposition, available to all parties afterward. There is generally a cost for the court reporter’s time, as well as for production of the transcript. (Learn more about costs associated with a personal injury case). The judge and court personnel are usually not directly involved in the deposition.
When you and your lawyer file a personal injury lawsuit, it nearly guarantees that the defendant (through an attorney) will ask to take your deposition. The rules of procedure governing civil lawsuits vary from state to state, but generally require that parties to a lawsuit participate in a deposition if the other side requests it.
Defense counsel should be willing to work with you to find a date and time convenient for you, so long as you are reasonable in your requests. If you have an attorney, he or she can assist in preparing you for the deposition, but being represented by counsel is not required.
The defendant or his attorney is going to ask you many questions during your deposition. Many of these will be questions that seek background or personal information about you, including your name, address, immediate family members, and whether you have taken any medications that day.
The defendant’s attorney will ask you to testify as to your recollection of the events surrounding the car accident. He or she may ask you where you were going in an attempt to determine whether you may have been distracted or in a rush, and whether that contributed to the accident.
Defense counsel will have likely reviewed all of your medical treatment records in anticipation of the deposition and will ask you to expand on the information contained within those records. If you are claiming lost income, you will be asked about your employment history, your job duties, and to explain why you were unable to work while injured. If you are self-employed, be prepared to explain how you calculate your income and lost earnings.
You should listen to each question carefully and answer honestly. If you do not know an answer with certainty, say so. Do not make up an answer. While it can be aggravating to answer questions that may seem irrelevant or intrusive, try to exercise patience and be polite. Being obstructive or refusing to answer questions may result in the opposing counsel contacting the judge for assistance. Getting the judge involved at this stage is not a good idea, as you don’t want the judge to develop a negative opinion about you and your case. However, if the defendant is truly asking questions that are irrelevant, seek privileged information, or seem overly intrusive into your personal or medical history, you can object and refuse to answer. You can also ask the court for assistance.
If you're the plaintiff, this is your chance for your attorney to speak to the defendant (the other driver) and obtain information from him or her regarding the events leading up to the car accident. Speaking with the defendant personally is also a great way to ascertain the type of witness he or she will be at trial.
Your side will want to obtain basic information about the defendant’s identity and to confirm the identity of the person who was driving the vehicle that hit you, as well as the owner of that vehicle. Your side will also ask the defendant to relate in detail the events leading up to the accident and his or her version of how the accident happened. Is the defendant aware of any witnesses? Is there any information that might indicate that the defendant was being careless or reckless—using their phone, playing with the radio, driving while on drugs or under the influence of alcohol? Was the defendant was on a work errand at the time of the accident, and if so, what is the name and contact information for the employer. All of these questions relate to the key issue of fault for the car accident.
Your attorney might consider deposing any witnesses to the accident, any treating medical providers, and any medical providers that the defense intends to call. Both sides will usually depose any expert witnesses that either side plans to use at trial. Remember that deposition testimony may be introduced as evidence at trial in order to impeach a witness (ie., lower his or her credibility in the eyes of the jury) should the trial testimony differ significantly from the deposition testimony. Learn more about what happens if a car accident case goes to trial.