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Everything You Need To Know About Personal Injury Depositions

By Parag P. Bhosale

We’ve all heard of personal injury depositions, but few of us actually know what they are (even some attorneys).

What is a personal injury deposition?

A personal injury deposition is a sworn proceeding where a witness or a party answers questions that are posed by the other attorneys involved in the case. Parties to a case generally have to sit for the deposition regardless if they want to or not, while witnesses who aren’t parties have to sit for one if they are served with a subpoena.

The deposition is part of the “discovery” process. Unlike finding oil in your backyard, this type of “discovery” allows everyone in the case to know all the facts that there are to know BEFORE the case goes to trial. The idea is that if everyone knows everything, a case is more likely to be resolved through settlement (or dismissed if a judge determines it has no merit). Though only part of the discovery process, the deposition is probably the most useful.

What is a deposition used for?

There are three good reasons for taking a deposition – and one bad one.

1. The attorney wants to find out what the deponent (person who is being deposed) does and doesn’t know. Since the deponent is placed under oath, the attorney can find out what that person knows about certain facts that only they might know, the names and whereabouts of other potential witnesses or pieces of evidence, and what they know from evidence already uncovered in discovery. You may recall the adage, “an attorney never asks a question that he doesn’t know the answer to;” the deposition is where he learns the answer to that question.
2. The personal injury deposition narrows and confines a witness’s testimony. If someone is placed under oath and answers a question at his deposition, his answer should be the same when asked the same question in court. This logic can be applied to asking the deponent questions that were previously recorded in pre-deposition statements or writings, such as police reports, medical intake questionnaires, emails, or diaries. When used properly, a skilled attorney will use the deposition answers to highlight that the deponent is prone to changing testimony, is forgetful, or lacks credibility (is untrustworthy).
3. The deposition is the attorney’s chance to see how the deponent will come across in front of a judge or jury. Are they nervous or confident? Do they need to search for an answer? Are they cooperative or evasive? Did they dress appropriately or do they look like they just came in from a Bon Jovi concert? If so, there’s a few things that the attorney can work on with the deponent.
4. The only bad reason to take a personal injury deposition is for an attorney to try to intimidate, harass, or annoy a deponent. Although attorneys are under a professional obligation not to use depositions for these purposes, it unfortunately happens. Personally, I have always found that attorneys that behave poorly at a deposition end up getting much less useful testimony out of a witness than a respectful and encouraging attorney would. The goal of discovery is to find out what the witness knows, so it’s better if they feel comfortable speaking. But if this would happen to one of my clients and after multiple warnings the attorney continues to be abusive, I would end the deposition and walk out with my client. They can ask the Court to order me back for another deposition at my expense. Luckily, throughout my 15 years of practice and hundreds of depositions, I have never had this happen.

How does a deposition happen?

The deposition takes place at a pre-determined date and time by agreement of the parties – usually at the office of one of the attorneys. Since the personal injury deposition is pre-determined and scheduled, the deponent will have plenty of time to meet with their attorney beforehand and get prepared. The deposition begins with a certified shorthand court reporter administering an oath. In Illinois, State Court rules limit the length of time of the deposition to three hours, but the parties can request additional time from the Court. In Federal Court, there is no limit to the length of a deposition – don’t worry though… you will get periodic breaks whenever you want them. The actual named parties to the case are allowed to attend your deposition, but they aren’t allowed to ask questions or make comments during the proceedings. The attorney for the party that requested your deposition gets to ask questions first.

What can (or can’t) attorneys ask at a deposition?

Deposition testimony is not trial testimony. At trial, only relevant questions can be asked of a witness. At a deposition, the question need only be likely to lead to admissible evidence. This pretty much covers everything except attorney-client communications and topics the court may have already ruled not subject to discovery.

A good attorney will prepare you for both the big questions and the minor ones, and more importantly explain why certain seemingly “stupid” questions will be asked. No amount of preparation, however, will prevent you from feeling somewhat violated at the deposition. The only consolation you can have here is that your attorney gets to do the same thing to the other party in the case, so don’t feel like it’s just you.

The court reporter will be typing down everything that is said – all questions, answers, and objections. If people talk over each other, this becomes messy, so you should always wait until the question is completed before starting an answer. Your attorney can object, but this rarely happens. Keep in mind, just because it comes up at a deposition doesn’t mean it’s admissible at trial. Usually your attorney will only object if the question as phrased or compounded in a confusing way. Even after voicing an objection, your attorney is supposed to let you answer if you can.

If an attorney feels that you are being uncooperative or unnecessarily hostile, he can request that the Court issue sanctions against a party or witness. These sanctions can include making you sit for another deposition at your expense, order you to pay monetary fines including attorneys’ fees, or even dismissing your case. In short, don’t try to make your deposition a street fight with the other attorney. They’ve done this hundreds of times before, and this is likely the only deposition you will ever do. The home-court advantage is very strong here.

What if I don’t know the answer to what’s being asked?

The rules only require a witness to give answers to what they know. The attorney can’t ask you to guess. If you don’t know for sure, but think you do, you should make sure you say that you’re not sure while answering. If you don’t understand what’s being asked, you have the right to ask the attorney to rephrase it so that you do understand it.

Why not just say “I don’t know” to everything?

Remember, you’re bound by your deposition testimony. At trial, the other attorney will have a certified copy of the transcript from your deposition, and she’ll be happy to read your deposition answers to the jury.

You’re also under oath. Saying you “don’t know” something when you do is violating your oath. Perjury is a felony, which means a minimum of one year in jail. You don’t want to turn a civil case into a criminal case against you.

What if I get nervous and say something wrong?

You have the opportunity at any time to correct something that you’ve previously said. Your attorney also gets a chance to ask you questions after all the other attorneys are done, so he should come back to something that may have tripped you up earlier. Once you leave the deposition, however, it is very difficult to add to or take away from the testimony you gave. You do get an opportunity to review your transcript before the court reporter certifies it, but you can only make spelling changes at that point.

Can I read off notes to refresh my memory?

The other attorney can ask you to answer from your memory alone. If you bring personal notes into the deposition that you want to refer to, the other attorney has a right to read, review and copy them.

Is the information in my deposition available to anyone?

It can be. You can ask your attorney to request for a protective order to limit who is allowed access to your transcript. Also the court reporter owns proprietary access to the transcript, so if someone wants a copy, they’re supposed to pay for it.  But for the most part, once it’s out there, it can stay out there. This is especially important for someone who provides expert or specialized testimony. Your opinions in one case can be used against you if they’re different in another case.

I’m not a party to the case…can I bring my own attorney?

Absolutely. Unlike a criminal case, however, the court will not appoint an attorney for you if you cannot afford one. In many situations you may be covered by insurance that will hire and pay for your attorney. If you fail to adequately notify your insurance company, not only might they refuse to hire an attorney for you but they might refuse to cover the loss because you violated the requirements of your insurance contract! Bottom line….notify your insurance company or talk to an attorney if you think the deposition may get into things that may cause you to pay in the future.

Although the deposition sounds scary, dangerous, and stressful, it’s merely a formal question and answer session. Even if you walk in and forget everything you just went over, you can always fall back on this simple rule – tell the truth. An experienced attorney should walk you through these steps and prepare you for what will come your way.  The attorneys at Gardi, Haught, Fischer & Bhosale LTD have helped hundreds of plaintiffs and defendants with personal injury depositions and are ready to help you too.

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