A Consumer Guide. What is a Deposition and How Does It Work in a Personal Injury Case?

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1 79 Wall Street Huntington, NY (fax) A Consumer Guide What is a Deposition and How Does It Work in a Personal Injury Case? A key component in many legal proceedings occurs when someone gives a deposition. I take time to explain to my clients what a deposition is and how it fits into the civil legal process. I thought I might share that information with you. What is a Deposition? A deposition occurs any time a person appears under oath to answer questions posed by an attorney. It usually occurs outside the courtroom and usually takes place in a lawyer s office or the office of a court reporter. The deposition, also known as the Examination before Trial (EBT), allows the opposing lawyer to collect testimony from a witness that assists in the preparation of a case. The testimony taken during a deposition can be used at a trial. In a civil case, such as a negligence or malpractice lawsuit, depositions will occur as part of the Discovery phase. The Discovery phase comes after a suit is filed and the initial papers are exchanged. Both sides begin to exchange information and that is known as Discovery. During the Discovery Phase, both parties have the right to depose the plaintiff and defendant. If the defendant is a business, then the plaintiff has the right to depose employees with knowledge of the case. If the plaintiff is claiming medical injuries, then the defense has a right to have a doctor of their choosing examine the plaintiff; this medical examination is known as the Defendant s Medical Examination (DME). Participants in a Deposition There may be a number of people in the room during a deposition. In the deposition of a plaintiff, there will be several people present: The plaintiff: This is the person bringing the lawsuit and in this example, the person who will be deposed. The plaintiff s attorney: It is possible that the plaintiff s attorney may bring a second attorney or a staff person.

2 The defense attorney. It is possible that the defense attorney may bring a second attorney or a staff person. A stenographer also known as the court reporter. He or she will administer the oath and take down the questions and answers so we can produce a written transcript of your testimony. Any party to a case can sit in on a deposition. Therefore, the defendant may sit in on the plaintiff s deposition and the plaintiff may sit in on the defendant s deposition. The Process I usually enter the room where we will conduct the deposition with my client. There is likely to be some general introductions and some small talk. The court reporter will administer an oath to person giving the deposition. In taking the oath, the person agrees to tell the truth. If a person gives false testimony under oath, he or she could be subject to perjury charges. The defense lawyer will begin to ask you questions. The beginning questions will be very simple such as asking the person s name and address. Most of the deposition will be spent with the defense attorney asking questions and the plaintiff answering them. When the defense attorney is finished asking questions, I may ask the plaintiff some questions. I usually do not ask many questions and will do so only if there is information that I want to make sure is added to the record. Some Thoughts about the Deposition Here is some of the guidance that I offer to my clients. The deposition is a question and answer session. The attorney will ask you a long series of questions and you will answer them to the best of your ability. You need not study or do any special preparation. You need not put on a special performance; you need only act naturally and answer the questions. That said, you should remember that we are there to put forth your claim. The opposing counsel will ask questions that are designed to undermine your claim. He or she is not you friend and does not have your interest at heart. You need not get every answer perfect. It is okay if you do not know the answer to the question. You can say, I do not know or I do not remember. This is not a test so do not feel that you need to answer every question. Only answer the question if you have an answer. the schlitt law firm: remarkable service Page 2 of 5

3 You should listen carefully to each question and make sure that you listen to the whole question. Make sure you understand the question. If you do not, ask the attorney to repeat it or to clarify. Do not answer right away. Pause to make sure you understand the question and the answer that you want to give. Do not blurt anything out. Do not feel rushed or pressured to give an answer. Only answer the question you were asked. You want to answer the question asked without adding information. The questions should be direct and you should be able to answer them directly with specific answers. You do not need to answer open-ended questions such as, Tell me everything that happened that day. All of your answers must be verbal, meaning you cannot point at things or use your hands to demonstrate something. Remember, your testimony will be reduced to a written document, so only your words will be recorded. You should relax and act naturally. Remember, we want to make a positive impression and your testimony can be read back at trial. Therefore, you want to make your answers clear and thoughtful. Avoid using any slang or casual language. For example, say yes instead of yeah and say no instead of nope or nah. The opposing attorney may be a nice person, maybe friendly and warm. He or she make joke with you. Remember, that person does not represent you and does not have your interests at heart. Once the deposition begins, everything you say will be recorded as part of the transcript, so there is no small talk during the deposition, no matter how the other attorney acts. Attorneys often use friendliness and humor to catch witnesses off-guard. You should be pleasant, but remember why we are there. You want to answer the questions and build your case. I sit next my clients throughout the deposition. Any time that you do not understand a question or if you have a question about a question, you can speak to me. If I hear a question that I think is inappropriate, I will object. That is another reason why you should pause before answering a question: that will give me an opportunity to object if necessary. The deposition can last from 30 minutes to over two hours or even longer in a very involved case. Ask for a break at any time during the deposition if you feel you need to use the restroom, get something to drink, or even just walk around. The only time you cannot break is when there is an open question if an attorney has asked a question and you haven t answered. the schlitt law firm: remarkable service Page 3 of 5

4 Here are some Do s and Don ts for your deposition: Do answer a question as directly as you can. Don t volunteer information. Don t answer a question that you don t understand or that includes a word that you are unsure of its meaning. Do tell the attorney that you don t understand the question if you have any doubt about it. Don t talk to defense counsel except on the record when your lawyer is present [no chats about the weather, weekend plans or anything else]. Do ask for a break if you need one. Do ask to speak to your lawyer if you have a question or are unsure of something. Don t say what you think someone else saw or what they intended to do. Only testify about facts don t guess at someone else s motives or intentions. Do be aware of leading questions where the attorney tries to make you give a yes or no answer to a confusing and/or compound question. It is perfectly permissible to say that you cannot fully answer the question with merely a yes or a no. Do ask the lawyer to repeat the question if your mind wanders for an instant and you re not sure that you heard the entire question. What Happens After the Deposition After the deposition is over, you should relax and congratulate yourself on a job well done. Take some time for yourself. If later that day or the next day, you have any questions, you should call your attorney. I always try to speak with my clients the next day to see if they have any questions. After the deposition, the court reporter will type up the transcript of your testimony. Your attorney will receive a copy of the transcript. It typically takes four to six weeks to receive the transcript of the deposition. Your attorney will send you a copy and review it with you to make any corrections or revisions. Usually, I only have my clients correct typographical or transcription errors. After you complete that review, you will sign the changes and your attorney will send a copy of that revised transcript to the defense counsel. I hope you found this information helpful. If you or a loved one has been hurt due to the negligence of another, you may want to consult a New York personal injury attorney. I would be glad to answer your questions and assist you. You can call me at or send an to the schlitt law firm: remarkable service Page 4 of 5

5 Carol L. Schlitt New York Personal Injury Attorney The Schlitt Law Firm NYlawthoughts.com This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney. copyright by Carol L. Schlitt The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author. the schlitt law firm: remarkable service Page 5 of 5

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