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Depositions

Depositions are often an essential component of a personal injury case.  If a lawsuit is filed, then depositions are almost always taken by both sides.  

A deposition is a formal, out of court meeting, where an attorney questions an individual under oath.  The questions and answers are transcribed and can then be used in court at various stages including trial.  They can also and are frequently used in settlement discussions.  

Depositions are a standard part of the discovery process.  There is both formal and informal discovery.  Informal discovery begins immediately when a lawyer accepts a case and before a suit is filed.  This would include the collection of evidence, incident reports, medical records, witness statements and much more.  This is done first to evaluate the strengths of the case which in turn determine the course of action.  

Depositions are part of the formal discovery process.  The formal discovery phase of litigation begins after the suit is filed and is governed by the Rules of Civil Procedure and the Rules of Evidence.  Deposing parties to the civil suit as well as other important witnesses is one of the main ways to gather evidence in preparation for trial.  Depositions are typically held in one of the attorney’s offices and there will always be a court reporter present to record the deposition.  

Both sides have the right to depose the others side as well as the other side’s witnesses.  If a party is not a natural person but a business or organization, then employees, officers, and directors with knowledge of the case may be deposed.  Other important witnesses can also be deposed, including employees, doctors, specialists, experts and eyewitnesses.  

For both sides, depositions are often crucial to the success of their case.  Depositions provide an essential source of information on the opposing party’s case, including both strengths and weaknesses.  In addition, the deposition provides a good barometer of how the witness will come across at trial.  Some parties and witnesses are more sympathetic than others.  This is important to know in advance of trial.  It will influence both trial preparation and settlement discussions on both sides.  

Most depositions will begin with questions about a party’s circumstances, their employment, education, family, etc.  Other questions will center on the incident, injuries, medical treatment, and expenses.  In a deposition, an opposing attorney will ask important factual questions to get the answers on the record and under oath.  This way, the witness will not be able to change their story later.  

There may be numerous parties present at a deposition.  The parties will each have their attorneys which in some case may include numerous attorneys and staff.  Witnesses may also bring their own attorneys.  In addition, there may be a variety of people recording the deposition.  Court reporters are always present.  It is also becoming fairly common to have a videographer present.  This is particularly the case where the witness is out of state or may otherwise be difficult to get to court at trial.  In that case, the video deposition if far more helpful to a jury than a transcription read by one of the lawyers or staff.  

Depositions can be intimidating for many witnesses, particularly those that have never been in a deposition before.  However, the most important points in preparation for a deposition can be summarized in two rules.  First and foremost, the witness should be honest and truthful.  Second, the witness should simply answer the question that was asked and no more.  As simple as this sounds, far too many witnesses have trouble with this second rule with sometimes very harmful consequences.   

Because most personal injury plaintiffs have never been in deposition before and often have never had any kind of legal case before, it is always advisable to not only have an attorney present at the deposition but to consult with an experienced personal injury attorney prior to the deposition.  This will go a long way toward easing the stress of what can be a daunting experience if you are no prepared.