A deposition is an out-of-court, under-oath Q&A session between a lawyer and a witness. It is a supplement to courtroom testimony, not a substitute for it.
You can often use deposition testimony as evidence for your personal injury claim. To successfully complete a deposition, either as the questioner or as a witness, you will need considerable preparation.
Context: Pretrial Discovery
Pretrial discovery is a process of gathering evidence that is in the hands of the defendant or a third party. It allows you to use the following four legal “weapons” to collect information:
- Interrogatories (written questions);
- Requests for production (of documentary and physical evidence); and
- Requests to admit or deny certain claims.
To engage in discovery, you must first submit a written complaint, serve the complaint and the summons on the defendant, and pay a filing fee. The defendant must file an answer to your complaint.
Once discovery begins, you can appeal to a court for enforcement if the defendant refuses to cooperate. Each side can use the discovery process against the other.
Reasons To File a Lawsuit and Go to Court
Most parties would rather settle their claims than go to court. So why bother filing a complaint and going to court in the first place? One or more of several possible reasons might justify filing a lawsuit:
- Most of the relevant evidence is in the hands of the defendant or third party.
- The statute of limitations deadline for filing a personal injury or wrongful death lawsuit will soon expire; or
- You seek to gain psychological leverage against the defendant by starting the countdown to trial.
You can settle or withdraw a lawsuit at any time before the court reaches a final judgment.
How Do Depositions Work?
A deposition works like a cross-examination in the sense that you are under oath. Most of the time, you must fully answer the questions put to you. A court reporter will record both questions and answers. Since the judge does not attend, they cannot rule on any objection uttered by a lawyer. A lawyer can and should object when appropriate in case the judge reviews the transcript later.
Who, What, When, and Where
The following are some characteristics of a typical deposition:
- The parties present will include the witness(es); lawyers for both sides; a court reporter; and (maybe) a videographer. One noticeably absent party is the judge.
- The lawyer who questions you will probably be hostile to you. One of the main reasons for their questioning will be to identify weaknesses in their own case. Another reason will be to tempt you to contradict yourself so they can discredit you.
- The deposition will probably take place before the trial is scheduled, and it will probably take place in a lawyer’s office.
Depositions typically take a few hours to complete.
If You Receive a Subpoena To Testify
If you receive a subpoena to testify, you must either attend the deposition or successfully challenge the subpoena in front of a judge. If you do neither, your failure to testify will constitute contempt of court. You can go to jail for contempt of court.
Questions You Will Have To Answer and Questions You Won’t
The lawyer’s questions do not have to elicit admissible evidence. Rather, they must simply be “calculated to lead to admissible evidence.” That means you will probably have to answer questions you wouldn’t have to answer if the lawyer was cross-examining you in court. There might be other questions that you will not have to answer.
You can bring your lawyer with you, and it is very important that you do. Your lawyer will let you know when you should refuse to answer certain questions. Work out a system in advance where your lawyer can signal you when you do not have to answer a particular question.
Tips for a Successful Deposition
Observe the following tips for a successful deposition:
- Rehearse, rehearse, rehearse. Your lawyer can help you rehearse by playing the role of the questioning attorney. The tougher your lawyer is on you, the better they are preparing you.
- Don’t get rattled during questioning. That means don’t get scared and don’t lose your temper. If you feel your emotions getting the better of you (which is exactly what the opposing lawyer wants you to do), take a deep breath and refuse to be rushed.
- Be honest. In a worst-case scenario, you could go to prison for intentionally lying at a deposition.
- You can bring notes with you to the stand, but let your lawyer screen them. The defendant has the right to examine any notes you bring with you to the stand.
- Listen very carefully to each question, and do not volunteer any information that the opposing lawyer didn’t ask for. “I don’t know” and “I can’t remember” are perfectly acceptable answers as long as they are true.
Don’t expect the deposition to be fun; it probably won’t be.
The Discovery Process and Settlement
A successful discovery process can greatly aid negotiations. After all, if you uncover enough evidence during the discovery process, the defendant might have the choice of settling or losing at trial.
A New York City Personal Injury Lawyer Is a Practical Necessity
Most people need the assistance of an NYC personal injury lawyer to resolve their claims. In a case complex enough to require a deposition, “most” becomes “virtually all.” Don’t even try to go through with a deposition without the assistance of a lawyer who has been there many times before. If you would like more information, contact the experts at Rosenbaum & Rosenbaum, P.C. by calling (212) 514-5007 today for a free consultation.