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Sally Morin Personal Injury Lawyers

Home >> Do Personal Injury Cases Settle After Deposition?

Sally Morin Personal Injury Lawyers

Home >> Do Personal Injury Cases Settle After Deposition?

Do personal injury cases settle after deposition?

Understanding the legal jargon associated with a personal injury lawsuit in California can be challenging. So when you hear the term "deposition" used in connection to your case, you may have some questions. What is a deposition? How is a deposition given? How will a deposition affect your case? Below you'll find answers to these questions and more.

What is a Deposition?

Deposition is questioning by either party involved in a lawsuit, and sworn testimony under oath by witnesses and parties to a trial, that is recorded, and used as evidence. 

That questioning functions as sworn testimony given under oath and is always witnessed. This questioning is that is recorded (written, audio, video) and will be used as evidence in pre-trial negotiations and if/when a case makes it into a courtroom.

The act of taking a deposition (or being "deposed") is a key aspect of the "discovery" process—the evidence-gathering phase of the pre-trial process. It is often a "first step" that both parties involved will use to plan their future actions including determining what other evidence needs to be gathered, what legal maneuvering they can use to their benefit, and which other individuals could be deposed in order to gather even more evidence in support of their cause.

Generally speaking, anyone who is alleged to have information about your case can be deposed. While not everyone involved will have to go through the process, lawyers for either party will want to gather as much evidence (including witness testimony) that they can in order to build a solid case (or defense). A partial list of individuals who may be asked (or required) to give depositions during the discovery phase of a trial includes:

  • Investigating police officers
  • Medical professionals
  • Eyewitnesses
  • Clerks who may have come into contact with relevant documents
  • Friends and family members of the parties involved who may have seen or heard pertinent details

Because depositions are such a powerful piece of evidence, both parties will want to have individuals with pertinent information deposed. Opposing parties may seek to limit the number of those individuals in order to limit the amount of evidence that is uncovered during the discovery process, however, depositions can be legally compelled.

Indeed, witnesses who are not forthcoming, who are hostile, or who have since moved out of the area in which the trial is occurring may be compelled by subpoena to testify or face fines and possibly jail. That doesn't mean that every individual who is subpoenaed will have to give a deposition.

An individual can challenge such a subpoena by filing a motion with the court to be freed from the obligation to testify. The court may grant such motions in certain circumstances such as instances in which procedural errors occurred during the subpoena process or if the court deems certain requirements of the subpoena are unreasonable (a short timeframe in which to comply, for instance, or the requirement that a witness travel more than 100 miles).

However, subpoenas are enforced and witnesses with necessary information are compelled to testify.

What Is the Penalty for Failure to Comply with a Subpoena for Deposition?

While failure to comply with a subpoena in a criminal case could result in jail time, failure to comply with a subpoena for deposition in a civil court case is often limited to a fine. Indeed, the base penalty for such a violation in California is a $500 fine. However, individuals could also be ordered to pay "other expenses" that directly result from their failure to comply. There is no concrete limit on these "other expenses," therefore, failure to comply could quickly become very pricey for individuals.

Purposes of Deposition

There are several reasons for attorneys on both sides of a case to initiate depositions:

  • To collect eyewitness testimony
  • To compel information from otherwise uncooperative sources
  • To preview an individual's testimony before they step on the witness stand
  • To enter the opinion of specialists such as crash investigators and doctors into your case record

In a personal injury lawsuit, information is all-important. Plaintiffs will use that information to present the case for liability and need. Defendants will use information to deny (or lessen) liability and shine doubt on a plaintiff's need. (See California's Collateral Source Rule, for examples of how plaintiffs can use deposed information to lessen a potential insurance payout or jury award in a personal injury case.)

A deposition is the primary tool with which that information is gathered.

Understanding the Process of a Deposition

Despite its potential important implications, a deposition isn't something anyone should be afraid of. The process is rather simple, often doesn't take long, and can often be scheduled to fit within an individual's personal calendar.

Where are Depositions Held?

Depositions often take place at an attorney's office or that of a court reporter. However, they can sometimes be held at other locations, such as at or near a witness' home or place of employment. Third-party neutral places can also be proposed.

How Does a Deposition Proceed?

A deposition is typically attended by representatives from both parties, who may question the individual being deposed, or simply observe the questioning, sometimes entering objections into the official transcript of the deposition.

Sometimes one or more parties may enter objections into the official transcript of the deposition—highlighting questions (or avenues of questioning) that they feel are unnecessary, punitive, or potentially harmful to their position.

What Questions Will I Be Asked During a Deposition?

Anybody involved in the deposition process can ask whatever they want, as long as it pertains to the case in question.

However, during the deposition attorneys for the parties involved will often choose questions that are designed to help their client's cause.

Indeed, during deposition, the negligent party's lawyer is likely to ask you certain questions designed to shift some of the liability for the accident onto you. Generally speaking, you should give short, factual responses that don't volunteer extra information.

Can I Refuse to Answer?

During deposition, the negligent party's lawyer is likely to ask you certain questions designed to shift some of the liability for the accident onto you. Generally speaking, you should give short, factual responses that don't volunteer extra information. You can refuse to answer a question during a deposition under certain circumstances:

  • If the answer would require you to divulge privileged information, such as information passed during conversations with a mental health professional, your spouse, or a member of the clergy.
  • If the answer would lead you to incriminate yourself. You are allowed by the Fifth Amendment to the Constitution of the United States to refuse to answer a question that would implicate you in a crime.
  • If you object that you feel the question is designed to harass you, the attorney who posed the question will rephrase it or make a case for why the question must be answered - if agreement cannot be reached, you may suspend the deposition and ask the court to order the question excluded. Bear in mind that attorneys are generally afforded substantial leeway to pose questions that you may find intrusive.

Your attorney can provide you with invaluable guidance and instructions for how to respond to questions in a deposition, and it is generally not advised to attend a deposition in your own case without one.

Once the deposition has concluded, both parties will have access to the official transcript of the deposition to help make their case.

Why Personal Injury Cases Often Settle After Deposition

Negotiations in a personal injury case are typically ongoing before, during and even after a trial until a settlement is reached. In particular, it is not uncommon for a settlement to be finalized during or after the deposition phase of a personal injury trial.

The deposition phase can function as a sort of litmus test, by providing lawyers for each side an opportunity to see what evidence, testimony and resources are available to present a compelling case, or defend against it, to a judge or jury.

While both parties to a case may have had access to information and documentation provided by certain witnesses and other individuals, deposition allows each side to collect such information from individuals to whom the other side may have previously had exclusive access, or who in some cases were not initially cooperative with either side.

Thus, during or after the deposition phase of a trial, each party is likely to have gained a much clearer sense of the relative strengths and weaknesses of the case, and this new clearer picture of the outlook for the trial will often facilitate changes to each side's negotiating position, such as new offers or a heightened degree of urgency to avoid trial.

That first glimpse at the entirety of the information may help an attorney decide the best course of action for their client. Sometimes that course is to settle before the legal process is dragged out for too long.

A Good Attorney Can Use Deposition to Your Advantage

An experienced accident lawyer will know how to take advantage of the deposition process to advance your negotiating position, or to secure the best possible outcome at trial, and how to help you protect yourself from liability during a deposition.

The complexities of navigating and making the best use of the deposition phase are among the many reasons you can generally expect higher compensation in a shorter time frame, while minimizing risk, with a seasoned personal injury trial lawyer on your side.

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