Personal injury cases have many stages including pre-suit investigation, discovery and trial. Once a case is filed in court, a critical part of discovery includes the depositions of the parties, including the plaintiff (the injured claimant). A deposition is the first time the plaintiff gets to personally tell his or her story to opposing counsel and, in many cases, the defendant who caused the injury. Many injured people are nervous or emotional before their deposition, which is understandable. Often, the injury has changed your life in serious ways. We put major pressure on ourselves to tell the whole story, to make the other side understand how the injury has changed everything. The deposition itself is often a strange and unfamiliar process. Most people have never testified before. That lack of familiarity—and control over the questions being asked of us–naturally worries anyone who has to testify. Knowing what to expect during a deposition, the real purpose of a deposition in personal injury cases, and the expectations of us as a witness can help us relax and communicate effectively.
A deposition is a process where an attorney asks a witness questions, and the witness answers them under oath to tell the truth. The people who attend depositions usually include lawyers for both sides, including the plaintiff’s attorney, the witness, and a court reporter. Both the plaintiff and the defendant have the right to be present, even if they are not themselves the witness. The court reporter will take down every word that is said including all questions asked, all answers given and any objections made or other discussions “on the record.” Most personal injury cases are audio-recorded, and some are videoed.
Depositions are taken for several reasons. The most important is that a deposition is “discovery,” meaning the lawyers get information about what the witness would say in a trial. Lawyers don’t like surprises, so they use depositions to prepare for trial. Defense lawyers also summarize the information for their insurance companies about the value of the case, and the strengths and weaknesses of the case if a jury or judge later hears the same facts. So, their main goals are to learn what a witness knows or remembers and what kind of witness a personal injury claimant will make at trial. They also use depositions to explore a personal injury claimant’s medical history, in order to see what injuries and damages are from the crash or may have been a problem before the crash.
When one of our personal injury clients is deposed, we make sure our client knows the ground rules to be followed that make the deposition process less intimidating. The first rule is that the witness should listen carefully to the question and then always tell the truth when answering those questions. If a personal injury claimant fails to be truthful, or is evasive, that can have bad consequences for the case. The second rule is to only answer the question asked, and only if you understand it. If you don’t understand a question, a witness should ask the attorney to rephrase it or clarify it. Another key rule is that a personal injury witness should only answer the question that is asked. A witness should not go beyond the question that has been asked. For example, if a witness is asked if he or she has any brothers or sisters, the correct answer is either yes or no. Unless asked further questions, the witness should not go into information about his or her siblings like names, addresses, and the like unless asked to do so. Rambling about other information delays the process and makes the deposition longer. It also can seem evasive. It is the obligation of the attorney to ask the questions necessary to get information from the personal injury witness. There is no obligation to volunteer information beyond the scope of the question, even information that the witness really wants to talk about instead.
Even though injured people often resent probing or irrelevant questions, they should be straightforward and not sarcastic. People often want to try and push back against an adversary, but the best option is always to be straightforward about the facts. Sarcasm does not translate well to a transcription, and can be misleading when reviewed months later. It also tends to make a deposition take more time, not less, because the lawyer is going to persist in getting straight information even if they have to ask the same questions again.
An injured witness should not feel pressure to try and “win” their case in their deposition. Winning the case is the lawyer’s job. The witness’ job is to truthfully answer the questions asked, and let the evidence be what it is.
In addition to the evidence, impressions during a deposition matter for a case, not unlike a job interview. So, while it may seem like a small thing, a personal injury witness should dress appropriately and be respectful. While a deposition is not a court hearing or a trial, it is a formal proceeding. A personal injury claimant should dress professionally, because that is part of making a strong impression. Coming to the deposition dressed too casually implies that the personal injury victim does not care about their own lawsuit.
While a deposition can be a stressful process for a personal injury victim, understanding what to expect and what the rules are will make it easier. Further, once a few questions have been asked and answered, the deposition becomes a great deal simpler and less stressful.
If you have been injured in a car wreck, trucking accident, or as a result of a fall at a business, we are here to help. Call us for a free consultation on your claim.
Our firm regularly litigates personal injury cases throughout Virginia, including in Roanoke City and County, Montgomery County (Christiansburg, Blacksburg), Lynchburg, Abingdon, Martinsville, Rocky Mount, Wytheville, Bedford, Covington, Harrisonburg, Richmond, Charlottesville, Lexington, or Staunton. We also practice in areas such as Bath County, Campbell County, Giles County, Craig County, Smyth County, Alleghany County, Pulaski County, Franklin County, Campbell County, Carroll County, Patrick County, Floyd County, Stuart County, Pittsylvania County, Henry County, and Wythe County. We also litigate in Virginia federal courts, including those divisions in Roanoke, Abingdon, Danville, Harrisonburg, Charlottesville, Alexandria, and Richmond.