We continue our discussion on the pre-trial discovery process with this article on depositions.
Simply stated, a deposition is where a party to a civil case testifies under oath prior to trial. Legally, deposition testimony is no different than sworn testimony at a trial. The witness is sworn to tell the truth, and all of his or her testimony is recorded by a court reporter. The testimony is often reduced to a deposition transcript, which is a booklet containing the typewritten testimony.
The difference between deposition testimony and trial testimony is the content. In a trial, the only testimony a jury will hear is "relevant" testimony. In other words, the testimony must either prove or disprove an issue in the case. In the typical civil personal injury case, common issues are who is at fault, whether the fault or negligence caused injury, and the severity of the injury. Unless the testimony proves or disproves these issues, it is not admissible.
In a deposition, however, the standard is much more liberal. An attorney can inquire about any matter that might lead to the discovery of relevant evidence. So, the deposition is more like a fishing expedition, and in some cases, well over half of the questions asked would not be admissible at trial. So, what kind of questions are we talking about?
If a person's health is at issue, then expect questions about health history, including prior injuries, medical conditions, or prior claims. Injured plaintiffs are often asked about the nature and extent of their injuries, how these injuries interfere with everyday activities, and whether or not any injuries have resolved. Typically, the defense attorney will have medical records reviewed prior to deposition, and probably knows some of the answers to the questions before they are asked.If wage loss is part of the case, there will be questions about employment history and educational background. A defense attorney will have tax returns to refer to while questioning a witness.
Do defense attorneys try to get and injured plaintiff to lie at deposition? Maybe sometimes, but more often, a defense attorney is looking for a sense of what the injured plaintiff will say at a trial, and how the injured plaintiff will come across in front of a jury. However, if the defense attorney senses that an injure plaintiff is being less than honest, a good defense attorney will give the injure plaintiff all the rope she needs to damage her case.The deposition is certainly an important phase in the case, because it is usually the first time a representative from the defendant or the insurance company actually meets the injured plaintiff in person. Often times, the parties will obtain new information that allows discussion of potential settlement, or at the very least, works to narrow the issues for trial.
If you have a case that may require litigation and a deposition, call us at 503-325-8600 with your questions. We have extensive experience with depositions, and civil litigation in general.
