The Deposition in a Personal Injury Case

During a personal injury deposition, the plaintiff or another witness testifies under oath as part of the "discovery" process.

A deposition is a question-and-answer session used in the pre-trial "discovery" process of a civil lawsuit, to gain information about the case and explore paths toward potential evidence that might be used by either side. In this article, we'll explain how the deposition process works in the context of a personal injury case, and what to expect if you need to testify.

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 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.

Compelling a Witness to Attend a Deposition

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 stressful. 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.

Why Take a Deposition In a Personal Injury Case?

There are several reasons for taking a deposition in different kinds of personal injury cases, including:

  • to obtain important facts about the case
  • to gather information about the strengths and weaknesses of the parties' arguments in the case
  • to figure out how effective (how credible, how sympathetic, etc.) a plaintiff or witness will be when testifying at trial, and
  • to determine how and when the underlying accident or injury occurred.

How a Deposition Works In an Injury Case

When either side of the personal injury case (plaintiff or defendant) wants to schedule a deposition, they must give give reasonable notice to all parties according to local court rules, but 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, one attorney typically begins the questioning, and other attorneys have a chance to follow up with their own questions. During questioning by an examining attorney, opposing attorneys can object to certain questions and subject matter. Unlike a trial, there is no judge to rule immediately on objections. Therefore, the objection is noted on the record, but the questioning proceeds. A deponent can only be instructed to not answer a question in very limited circumstances.

Deposition Strategy In a Personal Injury Case

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 under a fault principle known as premises liability.

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:

  • When was the last time the stairs were inspected?
  • How often do you perform maintenance work on the stairs?
  • Who is in charge of making repairs in the restaurant?
  • How old is the restaurant building?
  • Are there lights above or around the stairs?
  • Have other patrons been injured on or around the stairs?

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. The restaurant's attorney may even suggest that something you did (or didn't do) played a part in causing the accident. The attorney might ask if you were using your phone while on the stairs, for example.

Many attorneys prefer to ask broad questions and allow the deponent to provide a long 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 responses.

If you've got questions about what to expect during your deposition, your personal injury lawyer will have the answers.

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