Depositions in Car Accident Cases

What to expect in these question-and-answer sessions where witnesses give testimony under oath.

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If you file a car accident case in regular civil court , you can expect that you will have to give a deposition as a part of the pre trial process. You may also take a deposition of the other driver, or of any other witnesses.

What Exactly is a Deposition?

A deposition is a face-to face question-and-answer session scheduled by a lawyer (usually) to learn what the witness knows about the case. Depositions are governed by rules of procedure, and they vary somewhat from state to state. However, realizing that there may be slight variations in your state, read on to learn how depositions usually work.

Who can be Required to be a Witness at a Deposition?

Parties to lawsuits (plaintiffs and defendants, or their employees) can be required to testify at a deposition. So can non-party witnesses. To schedule the deposition of a party, a notice of the deposition is sent to the party or the party's lawyer, if they have one. However, non-party witnesses do not have to voluntarily appear at a deposition unless they receive a subpoena.

Where do Depositions Occur?

Depositions usually occur in the office of the lawyer who scheduled the deposition, in a conference room at the courthouse or in a conference room in some other public building.

Who is Present and What Does Everyone Do?

You and your lawyer (if you have one) will be present, as well as the lawyer who scheduled the deposition and a stenographic reporter. Any other parties to the case may also be present. Your job as the witness is to answer all proper questions. Be sure to read these tips for being a good witness. Your lawyer's job is to make sure that all questions are proper and that lawful procedures are followed. Your lawyer will object to improper questions or procedures in order to protect your rights. The lawyer who scheduled the deposition asks questions.

The stenographic reporter administers the oath at the beginning of the deposition and takes down verbatim everything that is said and then types up a transcript.  Any other parties who are present just observe. They do not actively participate. They cannot ask questions. No judge or any other impartial arbiter is present.

What is the Procedure at a Deposition?

The witness, sometimes called the deponent, testifies under oath and must answer all lawful questions that are asked. The party who scheduled the deposition starts by asking questions. This is called "direct examination." After he or she finishes, the other lawyer(s) can ask "cross examination" questions. The questioning goes back and forth between the lawyers until they have no more questions to be asked. What can you be asked? Quite a bit.

In court, all testimony and exhibits have to be "relevant" to be admissible. Relevant evidence tends to prove or disprove some issue in the case. In a car accident case, relevant evidence would concern such things as who caused the accident and what injuries were caused by the accident. But at a deposition -- and in pre-trial discovery in general -- questions are not limited to seeking relevant information. Questions are proper if they "could possibly lead to" the discovery of relevant and admissible evidence (or some similar rule). As you can see, this is a very broad standard.

Even though the scope of permissible questions is broad, objections can be made at the deposition. Normally, however, only objections that the requested information is privileged or that the question is in an improper form must be made at the time of the deposition. All other objects -- such as a claim that the information is not relevant -- can be made for the first time at trial, if there is an attempt to use the deposition transcript as evidence. Normally, depositions are taken down by the reporter and the transcript that the reporter prepares is the record of the deposition.

However, it is possible to videotape depositions. There are special rules for scheduling and conducting a videotape deposition. At the end of your deposition, you will have a choice of reading the deposition transcript to check for errors or waiving that right. If you waive your right to read the transcript, the reporter certifies that the transcript is accurate, instead. NEVER waive your right to read the transcript. Small errors in the transcript can create huge problems at trial. Therefore you want to make sure that errors in the transcript -- even small ones -- are corrected before they take on a life of their own.

What does a Deposition Cost?

The stenographic reporter charges a fee, usually based on the number of pages in the transcript. In a routine case, the reporter's charges are several hundred dollars. The parties (and witnesses) can order a transcript of the deposition. Expert witnesses, such as a treating doctor, are entitled to charge for their time, and almost all experts do. The person who scheduled the expert's deposition is usually the one who pays this charge. However, regular fact witnesses -- such as someone who saw your accident -- are usually not entitled to a fee, even if they have to miss work to testify at the deposition.

If the deposition is recorded on videotape, there is an additional charge for the "videographer," the person who operates the video camera and makes sure that court rules for videotape depositions are followed. There are no other deposition fees in the typical case.

What is the Result of a Deposition?

Normally, the result of a deposition is a verbatim transcript that is prepared by the reporter. It usually is an 8 ½ x 11 inch book with typed questions and answers. However, these days, there is new technology that can produce deposition transcripts in various formats, including digital.

What are the Purposes of a Deposition?

So, what's the point? Why is the opposing lawyer taking your deposition? First, the lawyer wants to "discover" your version of the facts. The lawyer wants to know what he or she is up against. Second, the lawyer wants to "pin you down" to a version of the facts so that the lawyer can prepare for trial based on what you said at your deposition. Third, the lawyer wants to assess how good of a witness you will be in court. The lawyer wants to see whether you are truthful and straight-forward, whether a judge or jury is likely to believe you.

How can a Deposition Transcript be Used in Court?

There are two main uses of the transcript in court. First, if you say anything that helps your opponent's case, they can simply read the helpful part of your deposition into evidence in court. Second, if you testify in court inconsistently with your deposition testimony, you can be confronted with the prior inconsistent deposition testimony, casting doubt on your competency or credibility. So, if you do not say anything that helps your opponent and you do not testify in court inconsistently with your deposition testimony, the transcript of your deposition will never be seen or heard from again.

In addition to these uses, a deposition transcript can also be read to the jury if a witness is not able to come to court to testify. Your jurisdiction has specific rules concerning what must be shown for this to happen.

How do you Prepare for Your Deposition?

It’s a good idea to study these tips for witnesses and to go over some typical car accident deposition questions that you can anticipate being asked. If you have a lawyer, he or she will go over the deposition procedure so you have a good understanding about what to expect.

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