A deposition is a tool used in the pre-trial "discovery" process of a civil lawsuit, to gain information about all aspects of the case and explore paths toward potential evidence. In this article, we'll explain how the deposition process works in the context of a personal injury lawsuit, and what to expect if you need to testify.
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 personal injury case (after the filing of a lawsuit, but before trial or settlement). 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.
Subject to limited exceptions, you can depose any person who may have knowledge of the facts related to the lawsuit. Naturally, many people will not voluntarily appear at a deposition out of pure good will. Depositions can be very long and stressfut. 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. (If you have a personal injury lawyer, he or she will be very familiar with this procedure.)
A subpoena commands a person to appear at a specific place and time to give testimony. The actual subpoena must follow strict guidelines, including 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 a number of reasons, including failure to allow reasonable time to respond to the subpoena, and when the compliance with the subpoena would require a person to travel an unreasonable distance.
There are several reasons for taking a deposition in different kinds of personal injury cases, including:
Similar to any other deposition in a civil case, you must give reasonable notice to the other party before holding a personal injury deposition, and the deposition may be in almost any location. Many attorneys choose to hold 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 usually responsible for the costs associated with the court reporter).
Similar to trial, there is usually an examination by one attorney, and a cross-examination by an opposing attorney is then permitted. During the questioning by the examining attorney, the opposing attorney can object. Unlike a trial, there is no judge to rule immediately on 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.
As part of discovery, depositions are used to obtain information that will help your side of the personal injury case.
For example, suppose you were injured when you tripped on wooden stairs leading to a restaurant’s restroom, injuring your leg. Your attorney chooses 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 the stair accident and your leg injury. In this case, deposition questions might include:
If the restaurant was conducting the deposition, the restaurant's attorney would ask questions that help to show that the restaurant regularly maintained the stairs and that it did not cause the injury and/or had no reasonable opportunity to address a problem with the stairs.
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 usually advise the deponent to provide short and concise answers.