How To Prepare For A Successful Deposition

In a personal injury case, the injured party is likely going to have to have their deposition taken if the case goes into litigation. Your lawyer will prepare you for that. They'll explain the process and the subject matter that's expected to be covered in the deposition.

Understanding the Deposition Process
Deposition in a personal injury case is when the witnesses give oral testimony under oath before trial. It's part of the discovery phase of litigation. 

Discovery Phase and Evidence Gathering
So that means a lawsuit has been filed, but maybe a trial date is still some time away. And so the parties have the right to request witnesses in advance to give their evidence. That means the attorney gets to ask questions of the various witnesses to get their evidence under oath and make assessments of what they would say at trial, if the case ever made it to trial. 

Most cases settle, but a big part of getting a fair resolution of a case is the evidence that's obtained through deposition. 

Duration and Complexity of Depositions
In the context of a personal injury case, the plaintiff or the injured party's deposition usually lasts several hours. It will depend on the complexity of the case in terms of liability, meaning the event that caused the injury or harm, and also the complexity of the injuries themselves. The impact it's had on the person's life, the type of health care, whether it's impacted work, home, leisure, etc. 

I tell clients, expect your deposition to be about three hours. Most jurisdictions have rules on the length of time, and  you will need to consult with your specific jurisdiction and your attorney on what the rule is for the maximum length of time, but as a rule of thumb, they can run anywhere from three hours to a full day. 

We tell clients to make themselves available for the entire day of their deposition. You don't want the client to be under stress and have time constraints or anything else. Set aside the day unless your lawyer tells you otherwise. On this particular day, your focus is doing the best you possibly can at your deposition. 

Importance of Taking Depositions Seriously
Most cases never go to trial. Statistics are well over 90 percent of cases will settle before trial. The value of the case in terms of how much is paid when it settles is often because of the testimony of witnesses at deposition. The deposition can play a critical role in resolving your case as well, giving your lawyer the tools to be able to then negotiate a settlement on your behalf. 

Take the deposition seriously, put in the effort to prepare, because It likely will be the only time that the other side actually gets to hear from you. Although the opposing party will have access to your medical records, the reports of the police, or the other documents relating to how the event occurred, this is really the only time they get to hear from the injured party themselves about what happened and how it impacted their life. Take it seriously, be prepared so that you can put your best foot forward and make the best use of the time.

Who Will Be Present at the Deposition?
So typically present at the deposition will be the deponent or the witness. So you, if, If you're the victim in a personal injury case, your lawyer, a court reporter. Court reporter is going to record everything that's said so that a transcript can be obtained later. And finally, the examining lawyer or lawyers, so the attorney on the other side. It could be one or it could be many. We've had depositions with boardrooms full of attorneys if there's multiple parties. In a more straightforward, typical case, there might just be one attorney on the other side, you and your lawyer and a court reporter. 

In advance of the deposition, you should ask your attorney, who's going to be present? How many people are going to be there? What are their roles going to be? Just so you have some comfort. 

Handling Questions and Stress
Questions will come from the opposing counsel, the attorney representing the defendant, who in personal injury cases is almost always selected and hired by an insurance company. Sometimes those lawyers are employees, direct employees of the insurance company.

Every examining lawyer has a slightly different style. Okay, everybody does it their own way. There's no one way to depose a witness. So it's really tough to prepare a client to anticipate the questions. In my practice, you know, I try to educate my clients on what they're trying to achieve at the time of deposition. So what's the insurance company looking for and how do you best present that in the light most favorable to you. 

It is a stressful environment because you're the one on the hot seat. You're the one being questioned. Take comfort in the fact that your lawyer will be seated probably right next to you, okay. If it's in person, they'll be seated right next to you. If it's by Zoom, you'll have to decide how to coordinate that with your lawyer, whether you'll both be appearing from separate locations or from one location and join the Zoom call together. Some depositions are recorded by video, but they're always recorded in terms of what's said. There's always a transcript created. Which can in many cases be used at trial. 

Breaks and Comfort During Depositions
So we talked about the length of the deposition, that it could be several hours, maybe a, maybe a full day event. Important to know that you don't have to sit there and go through this. It's not an endurance test. You can take as many breaks as you want, especially people who have an injury. and maybe sitting for a long time or staying in a stationary position for an extended period of time is problematic. You can certainly take breaks. Talk with your own counsel in advance and sort of come up with an idea of how often you'll take breaks, but you can certainly request the break anytime.

The lawyers involved are usually very accommodating. They'll tell you, you can take breaks as needed. So take advantage of the opportunity to take a break. It allows you to stand up, stretch, get some air, clear your mind, reset, refocus, and go back and do the best job you can. 

Typically a deposition in a personal injury case will only occur once. There are times where there have been changes to medical conditions. For instance, someone had a back injury, they gave their deposition, but then ultimately they had surgery and now they have recovered from surgery. There may be circumstances where there's an agreement to reconvene for another deposition, but where there is a second deposition, it's typically restricted to a particular area that couldn't have been covered before. So in that scenario, maybe the surgery and the outcome of the surgery that the examining attorney couldn't ask before. That's relatively rare. Most of the time, there's only a single deposition. 

Post-Deposition Steps and Conclusion
Following a deposition, the next steps are typically settlement conferences, either mediation or informal settlement conference between your lawyers, your lawyer and the opposing counsel, sometimes a pre-trial conference with a judge.

There are lots of opportunities to resolve cases after deposition. The cases in litigation Sometimes not as easy to settle a case until at least the deposition has been completed and the lawyers are able to hear from the other side. 
​
Have Questions? Contact Us Today!
If you have questions, feel free to reach out to us. We're happy to talk to you. We wish you all the best on your deposition if you're getting ready for one. If you're one of our clients, we'll prepare you. If you're not, speak to your attorney, make sure you're prepared and ready to go.

​