What is a Deposition?
Deposition is questioning by either party, and sworn testimony under oath by witnesses and parties to a trial, that is recorded, and used as evidence.
Deposition is a key aspect of “discovery”, the evidence gathering phase of the trial process.
Generally speaking, anyone who is alleged to have information about your case can be deposed, including:
- Investigating police officers
- Medical professionals
- 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
Witnesses who are not forthcoming may be compelled by subpoena to testify or face fines and possibly jail. An individual can challenge such a subpoena by filing a motion with the court, which it may grant in circumstances such as procedural errors related to the subpoena, or unreasonable conditions such as short notice or the requirement that a witness travel more than 100 miles.
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
Understanding the Process of a Deposition
Depositions often take place at an attorney or court reporter’s offices, but can be held at other locations, such as at or near a witness’ home or place of employment.
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.
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.
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.