Some of you may have heard the term discovery in connection with a car accident lawsuit. Discovery is the pre-trial process by which opposing parties in the lawsuit investigate each other’s claims by asking each other to produce information in their possession.
One of the most useful discovery tools available to an attorney in a car accident case is a deposition. In this blog post, we explain what a deposition is, the purpose it serves, and what happens when a car accident victim is asked to give a deposition in a case. Learn more from our car accident attorneys below.
What Is a Deposition?
A deposition is sworn testimony of a witness given outside of a court. In most depositions, a witness gives live, in-person testimony. Less-often, a deposition occurs by providing written answers, under oath, in response to written questions. Here, we focus on the live form of a deposition.
After a car accident lawsuit has begun, and discovery has started, the lawyer for a party sends notice of an intent to take someone’s deposition. Subject to a few limiting rules, a party can always take the deposition of the opposing party, and can usually take the deposition of any other person who possesses relevant information about the car accident. A victim who brings a lawsuit for damages after a car accident will almost always be asked to give a deposition.
The purpose of a deposition is to explore the facts and circumstances relevant to a legal claim. It allows a lawyer to ask the opposing party to explain, in the party’s own words, exactly what happened. In a car accident case, for example, defense lawyers ask to take the deposition of the accident victim to hear directly from the victim, under oath, about what happened before, during, and after the accident, about the victim’s injuries, and about how the accident and injuries impacted the victim’s life.
This straight-from-the-horse’s-mouth aspect of depositions makes it a particularly powerful way to obtain information and focus on critical facts.
What Happens at a Deposition?
A deposition usually takes place in a lawyer’s conference room or similar office setting. The person giving the deposition testimony (called the deponent), that person’s lawyer, the lawyer who requested the deposition, and a court reporter authorized to administer an oath, virtually always attend the deposition in-person (or sometimes, these days, by video conference).
Sometimes, a representative of the opposing party and/or lawyers for other parties also attend. Because a deposition constitutes testimony under oath, the deposition is transcribed by a stenographer, and is frequently also video-recorded. No one not connected to the lawsuit is allowed to attend a deposition; in other words, it is not open to the public the way a trial might be.
The deposition begins with the deponent swearing an oath to tell the truth, just as would happen in a courtroom. Then, the bulk of the deposition involves the lawyer who requested the deposition asking the deponent questions, which the deponent must answer unless a legal privilege (such as the right against self-incrimination, or an attorney-client privilege) permits the deponent to refuse.
The attorney asking the questions has broad latitude to answer questions on virtually any topic potentially relevant to the car accident case. No one is allowed to coach the witnesses on how to answer the questions. The deponent’s lawyer can, however, instruct the deponent not to answer a question in the limited circumstance that answering the question would violate a legal privilege.
After the lawyer who requested the deposition finishes questioning the deponent, the deponent’s lawyer can (but is not required to) ask follow-up questions to help clarify information, if need be. If that happens, then the first lawyer also gets to ask follow-up questions. The deposition ends when the lawyers are out of questions to ask, or at the end of the agreed time limit for the deposition (typically seven hours of testimony over the course of one day, with a one-hour break in the middle).
Who Gets Deposed in Car Accident Cases?
As we said, lawyers for parties in car accident cases can request to take the deposition of just about anyone who possesses relevant information about the car accident, and can always take the deposition of the opposing party.
So, typical deponents in a car accident can include:
- The accident victim.
- The party the accident victim has sued for damages.
- Occupants of the vehicles involved in the accident.
- Witnesses to the accident (such as bystanders, or other drivers who saw the accident happen).
- Police officers and other first responders to the accident scene.
- Experts in a variety of fields, including doctors who treated or examined the victim, forensic experts who investigated the accident, and financial experts who analyze the victim’s financial losses and future needs.
Lawyers sometimes ask a court to limit the number of depositions a party can take in a car accident case. In theory, however, lawyers can ask to take as many depositions as they need to gain a full and complete understanding of all of the facts and circumstances relevant to the lawsuit.
Giving a Deposition
As an accident victim pursuing a lawsuit for damages stemming from your injuries, you will likely have to give a deposition. Every case has its own unique features, so you should always listen to your lawyer’s specific advice about how to prepare and conduct yourself.
However, as a general matter, we find these tips helpful for anyone who must give a deposition in a car accident case.
- Tell the truth. Your only job as the witness at a deposition is to tell the truth as you understand it. Nothing more, nothing less. Let your lawyer worry about legal technicalities. Concern yourself only with answering questions truthfully. That is all you can do.
- The truth can include “I don’t know” and “I don’t remember.” Answer questions at a deposition based on what you know to be true. Do not guess. Do not speculate. If you do not know something, then answering “I don’t know” is the truth. If you do not remember something, then a truthful answer is “I don’t remember.” Do not let the lawyer asking you questions make you feel guilty about not knowing or remembering. You know what you know. You remember what you remember.
- Listen to the question asked, and answer only that question. The lawyer asking you questions is responsible for choosing how to ask them and what to ask. Listen to what the lawyer asks and respond to that question only. Do not guess at what you think the lawyer meant to ask. Do not try to help the lawyer ask a better question. That is not your job. Listen to the question, respond truthfully to that question, then stop talking and wait for the next question. Of course, if you do not understand a question, say so.
- There is no such thing as winning the case at a deposition. As the party that brought the car accident lawsuit, the best case scenario for your deposition is that you end the day with your case in no worse shape than when the day began. A good day is one where your case only sustains some damage. In other words, do not stress over giving the best or right answers for winning your case. Just tell the truth, and trust your lawyer to take care of the rest.
- Stay calm; bring snacks. At best, giving deposition testimony will feel tedious and tiring. You might even start to feel frustrated or annoyed. Do not let your emotions get the better of you; that would be the other lawyer’s dream-come-true. To help maintain focus and stay positive, bring snacks to munch when you need an energy boost.
What Happens After the Deposition?
Remember, your deposition represents just one of many steps in the discovery portion of your case. Do not expect something dramatic to happen afterward. Your lawyer and the other side’s lawyers will absorb the information you testified about and then decide how to proceed.
Here are some of the steps that may follow:
Reviewing the Transcript
You gave your deposition under oath, so it is very important to make sure the stenographer transcribed it accurately. A few weeks after your deposition, the stenographer will send your lawyer a copy of the transcript to review. Be sure to read it carefully, to make sure the transcript matches what you said. If not, then your lawyer may ask for revisions.
Sometimes, your answers to questions at the deposition will open up new avenues of investigation. For example, the other side’s lawyer might ask to review certain medical records you mentioned, or ask for a limited deposition of your doctor. If the other side disputes the nature or extent of your car accident injuries, it might also ask for you to undergo an independent medical exam (IME) conducted by a qualified doctor of its choosing. You and your lawyer can decide how to respond to this and any other follow-up discovery requests.
Do not feel bad if it seems like your deposition kicks off a whole new round of information requests from the other side’s lawyer. That is normal. And, do not worry that something you said will drag the case out forever. Discovery will end. Courts set time limits on the discovery phase of a car accident case. The parties can seek to extend those limits, but only for so long before the court insists on moving the case along.
Depositions offer lawyers a sneak-peek at how a witness might come-across to a jury in an eventual trial. That insight allows them to calibrate their thinking about the strengths and weaknesses of the case, and may prompt them to engage in settlement discussions (or to renew settlement discussions they had set aside while pursuing discovery).
This is not always the case, however, so do not worry if it seems like nothing happened on the settlement front after your deposition. As we said above, there is no such thing as winning the case at deposition. Your lawyer may even advise that it serves your interests not to start negotiations back-up after you give deposition testimony.
After discovery ends in a car accident case, but before the case goes to trial, one or both parties may decide to prepare written requests asking a judge to decide some or all of the case based solely on the information discovered through depositions and other types of discovery. Lawyers refer to this as making a motion for summary judgment.
Every case has its own unique features, but in our experience it is more common for defense lawyers to ask for summary judgment in a car accident case than for lawyers for the injured accident victim to do so. There are lots of technical reasons for this; suffice to say lawyers for car accident victims often prefer to present a case to a jury, rather than a judge.
If a defense lawyer in your car accident case files a motion for summary judgment asking a judge to dismiss your case, and points to your deposition testimony as a reason why, do not panic. This is normal practice for defense lawyers. Experienced car accident injury lawyers know how to respond to these arguments. Take comfort knowing that you told the truth at your deposition, which was all you could do.
If a car accident case ends up in a trial, it is likely that as the car accident victim seeking damages, you will testify as a witness. Like in your deposition, you will give your testimony under oath. This time, however, the testimony happens in a courtroom, with a judge and (usually) a jury listening to you. If your testimony differs in some way at trial from how you testified at your deposition, then the opposing lawyer might ask you about the discrepancy. However, your only job as a witness stays the same: to tell the truth.
For information about your legal rights after suffering injuries in a car accident, contact an experienced car accident injury lawyer today for a free case consultation.