The process of depositions in a pending personal injury trial
To “depose” is to question a witness or party, or testify as a witness under oath out of a courtroom that may be used by either side in a lawsuit. Usually, those present at a disposition include the witness (deponent), interested parties’ attorneys, and a qualified person to administer the necessary oath. The proceedings are recorded by either a stenographer or videographer.
Depositions may not be admissible in court
It is not uncommon for depositions to be inadmissible in court during a trial (although there are exceptions), since they are considered “hearsay”.
So why bother deposing witnesses if their testimony isn’t allowed during a trial? The answer is for discovery purposes. Depositions can uncover and/or confirm the facts of a case and are always at the behest of the opposing attorney.
In our Wisconsin personal injury practice, for example, during a deposition for a pending personal injury trial, the defendant’s attorney can ask our client questions that are relevant to his client’s case, trying to discover information that may be allowed during the trial. His questions seek to make a stronger case for his client, and damage our client’s case.
Depositions are about the opposing lawyer looking for information and learning what the client might say, if the case went to trial. It’s not the time for a client to tell his or her side of the story.
The deposition process and its importance in a personal injury lawsuit
Depositions are conducted in either party’s attorney’s office, and not in a court of law.
Opposing counsel may ask a client about the accident, the client’s education and work history, his medical history, prior injuries or accidents, and other questions that are germane to the case.
One of the major benefits of a deposition in our field of practice is actually avoiding going to trial. Frequently, once the defendant’s attorney receives the answers to his questions from our client, he decides to settle the case, instead of going to court because he figures that not only will his client be found guilty of negligence, but a jury may award a much higher amount than a settlement. The decision as to whether to accept the settlement is always up to our client.
Our advice for clients being deposed in a personal injury action
We always tell our clients to tell the whole truth, and nothing but the truth. The facts are on their side so they have no reason to embellish or lie. If they lie, it could destroy their case, as the defendant attorney will likely expose it at trial.
We understand that testifying in any venue can be intimidating so we advise our clients to stay calm, truthfully answer all questions (unless we object to them), and not to volunteer any extra information.
Fortunately, most of our personal injury cases are settled out of court. This saves everyone a lot of grief and money. To be clear, clients can be deposed without a lawsuit having been filed when the plaintiff (our side) and the insurance company are negotiating, but formal depositions are typically reserved for cases in litigation. More likely, a client might be asked to give a recorded statement with us listening in, in order to object to a line of questioning, if necessary.
Depositions are an important part of our legal system and in personal injury cases. They exist to find out all the facts of a case before a trial so that no one is surprised. In a personal injury case, they help to find out what witnesses know, and to preserve witness testimony, so that ensuing action (settlement or trial) can be decided.
If you have any questions about this topic or any other questions related to personal injury law, please call us at 920-725-8464, or toll free at 1-800-529-1552. Our personal injury consultations are always free.
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