A deposition is a powerful tool for attorneys preparing a car accident case for court, as it allows them to obtain testimony from a witness under oath before the trial takes place. This process can lead to new evidence, provide useful information to inform the direction of their legal strategy, and even lead to a settlement. Here is a look at deposition’s usefulness, how it is conducted, and what happens after deposition in a car accident case.
What’s a Deposition?
Cornell Law School’s Legal Information Institute explains that a deposition is a type of sworn, out-of-court testimony. It occurs during the discovery phase of a legal proceeding, the period after a lawsuit is filed when both sides can gather evidence held by the other side in preparation for court.
The three types of depositions include:
- Depositions on written interrogatories involve the deponent (the witness being deposed) being given a series of questions written out or provided to the witness with a lawyer present. The witness then answers the questions at will. There are no guidelines on which questions are asked or a time limit on how long the deponent takes to answer them.
- Depositions on oral examination allow one legal representative from each side of the claim to ask one question of the deponent at a time. Only questions pertaining to the claim are permitted, and this type of deposition is typically time-limited.
- Depositions from video-recorded statements occur when a witness to a case records their testimony and then plays it back for the deposition.
How Do Car Accident Lawyers Use Depositions?
Lawyers depose witnesses in car accident cases for several reasons, including:
- To determine how credible a witness to the case will be at trial or to obtain important testimony from individuals who cannot be present at the trial.
- To degrade the credibility of the at-fault party’s witness by showing how their testimony during the deposition differs from their testimony at trial.
- To obtain insight from expert witnesses such as medical professionals with experience in treating injuries like the one the claimant suffered.
- To gather additional information to strengthen a case in preparation for trial.
Who Do Car Accident Lawyers Commonly Depose?
During a deposition, the claimant, defendant, and their respective attorneys are present, along with the individual being deposed. Those commonly deposed in car accident cases include:
- Any of the drivers or passengers involved in the accident and eyewitnesses who saw the accident occur.
- Medical professionals, including physicians who treated the claimant’s injuries and in some cases expert witnesses who can testify to the injuries’ severity.
- Accident reconstructionists can speak about how the accident occurred.
- The family, friends, or coworkers of the claimant can share information about how the injury has impacted the claimant’s quality of life.
What Happens After a Deposition in a Car Accident Case?
After deposition, a court reporter will prepare a written transcript, and copies will be made available to parties on both sides of the claim. The attorneys will review this transcript—which can, in some cases, be used in court. The deposition can facilitate the next steps or resolutions in the claim process, such as.
Settlements commonly occur after depositions when it becomes apparent to the claimant or the defendant that their case is not as strong as they believe and likely will not do well at the trial. If the weakness is on the claimant’s side, accepting a settlement offer already on the table can be the best available option. For the at-fault party’s insurance provider, the information revealed in the deposition can favor the claimant and how they should offer a fair settlement or likely lose in court.
It is important to understand that personal injury claimants are responsible for making the important decisions in their claim, not their attorney. The attorney’s role in the decision-making process is to provide the guidance and information that the claimant needs to make decisions that reflect their interest. It also should be noted that around 95 percent of personal injury claims settle before trial.
Once a claimant has agreed to a settlement, these actions occur:
- The attorneys for both sides will report to the court that they have settled. Within 30-60 days, the court will issue an order of settlement.
- The claimant will be required to sign a release of liability stating that they will not pursue further compensation on the matter from the defendant. The defendant’s attorney prepares the release and sent to the claimant’s attorney for approval. If the claimant or their attorney finds any part of the release objectionable, the attorney can negotiate the terms of the release.
- The at-fault party’s insurance provider will process the order for payment, and the proceeds will be sent to the claimant’s attorney, who will deposit the funds in a trust.
- The attorney will work to negotiate with the claimant’s creditors who have placed liens on the award, such as healthcare providers unpaid for their services or health insurers who provided coverage for the claimant’s medical treatment and want to recoup their costs.
- Once the liens are satisfied, the attorney will deduct the percentage of the award designated as payment for their services, per the contingent fee agreement.
- The attorney will then meet with the claimant to sign documents that finalize the claim, and the remainder of the compensation will be turned over to the claimant.
The Defense Can File a Motion for a Summary Judgment
Another possible outcome after a deposition in a car accident case is that the defendant’s legal counsel will file a motion for a summary judgment, also commonly referred to as an accelerated judgment. This motion requests that, rather than endure a full trial, a judge will review the facts of the case and issue a decision without a jury.
Some of the decisions that the defendant can ask the court to make through a summary judgment include:
- Determining whether the defendant was at fault for the accident.
- Determining if the claimant’s injury met the state’s serious injury threshold in states with no-fault insurance laws.
- Determining if the defendant’s conduct is legally excused due to a medical emergency.
- Determining whether a third party was the cause of the car accident, such as the manufacturer of a defective part used on one of the vehicles.
- Determining whether a claimant’s pre-existing injury is to blame for their current condition or how much a pre-existing condition worsened due to the accident. Liable parties are only responsible for compensating a pre-existing condition to the extent that the accident worsened it.
Summary judgments can generally only be filed when there are no disagreements on the facts of the case and the defense believes, based on those facts, that they should win the case. When this happens, the claimant’s attorney will respond with motions to show contested facts in the claim and argue why the case merits a full trial.
A Trial Will Occur
After the deposition, if there remain major disagreements on the facts of the case and a settlement offer is not made, the claimant’s attorney will continue entertaining settlement negotiations as they occur while also preparing the case for trial.
The attorney will prepare evidence exhibits and opening arguments, arrange for expert testimony, attend pre-trial conferences to represent the claim, and continue to file motions and respond to motions filed by the defense. Settlement agreements can be entered at any time before the court has decided on the matter.
Will the Claimant Be Deposed?
In most personal injury cases, the defendant and the claimant will be deposed. The deposition will be scheduled for a specific time, date, and location. The claimant will be under oath and expected to answer their questions truthfully and to the best of their ability. Depositions are mandatory, so the claimant must be deposed if requested for their claim to continue.
Other Activities Involved in the Personal Injury Claims Process
The deposition is just part of the process attorneys use to gauge the strength of their case or uncover new evidence that they can use to prove their side in court. Other activities can occur during the discovery phase, including the following.
Independent Medical Examination
When the severity of the injury sustained by the claimant is in question by the at-fault party’s insurance provider, they can request that the claimant submits to an “independent” medical examination (IME) during discovery.
A medical professional of the insurance provider’s choosing assesses the claimant’s medical condition—hardly an independent or objective person. They will frequently look for reasons to deny your claim. You will want a car accident lawyer to prepare you for this exam.
Usually, the defense can only request one physical examination of the claimant unless an additional exam is necessary because the first one was incomplete.
Independent medical examinations are a common requirement during discovery and are an uncomfortable situation for most claimants, as they are mandatory. The claimant must appear when scheduled and have no say in the physician examining them, and the exam is to help build the defense’s case. However, the claimant can have their attorney present to ensure the examiner conducts the exam according to the rules and that the doctor is not interrogating the claimant.
Request for the Production of Documents
Both sides of a personal injury case need to see documents pertaining to the claim. The claimant’s attorney can request that the defense produce documents, including the driving record of the at-fault party, the charging documents if they were arrested at the scene, the results of chemical testing for alcohol impairment if relevant to the case, and other information.
The defense can request medical documents, medical bills, information from the claimant’s employer about lost time from work or the wages they were earning at the time of the accident, and even photos or videos of the accident held by the claimant.
Request for Admission
Requests for admission are written requests by either side of the case to get the other party to admit to facts. For example, in a car accident case involving a T-bone collision, the claimant’s attorney can request that the at-fault party admit that the front of their vehicle struck the side of the claimant’s vehicle.
While requests for admission are similar to interrogatories, the claimant must sign the latter under oath.
In contrast, admissions tend to be a less formal method of gathering information about how the other party views the facts of the case. Additionally, interrogatories tend to require more detailed answers, while requests for admission tend to be simple questions the party can either admit or deny.
The Bottom Line
Depositions and other methods of discovery can be anxiety-producing for claimants. However, experienced personal injury lawyers expect these fact-finding methods just as they expect to use these requests on behalf of their clients. They will prepare the claimant for the deposition experience and work to protect their rights during the process.
Depositions require going through a complicated and sometimes stressful process, but a strong attorney can prepare you well and make it as comfortable as possible.
To learn more about the claims process and obtain answers to your legal questions about your case, contact an experienced car accident attorney for your free case evaluation.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.