When a personal injury lawsuit is filed both the party seeking damages and the party defending the action are looking for information that will support their positions. During the investigative stage of the process, each party can request information from the other in several ways. If the proper procedures are followed each party is allowed to use the information they gather to help them build their respective cases.
Receiving a subpoena to appear for a deposition can be a little unnerving because the deponent must appear in person and answer direct questions without first being able to discuss them with an attorney. Understanding the process and being prepared ahead of time can alleviate much of the apprehension about having a deposition taken.
Depositions and the Discovery Process
The investigative stage of a lawsuit is referred to as discovery. Each party is allowed to uncover information that may be used as evidence during the trial or in settlement negotiations. There are four types of discovery that parties may use to request information.
- Interrogatories – written questions intended to gather specific information
- Requests for Production – written requests to obtain documents or other physical evidence
- Requests for Admission – written requests asking a party to admit or deny facts relevant to the case
- Depositions – in-person testimony that is usually given orally which is transcribed and may be videotaped
Discovery helps each party prepare their strategies and preserves evidence for use at a later date if necessary. Depositions can be used as an alternative to live testimony when the witness giving the deposition is not available in person at the time of trial. Deposition testimony can also be used to point out contradictions between the deposed testimony and what a witness may be saying at a later date.
What to Expect During a Deposition
Depositions are the most formal type of discovery. The person who is answering the questions is sworn under oath to tell the truth. Depositions typically take place in a law office conference room. The attorney for the party requesting the deposition will ask a series of questions that must be answered honestly while a court reporter records the proceeding.
The person whose deposition is being taken is usually accompanied by a lawyer who will make sure that the questions asked are appropriate and don’t violate any rules of procedure. During the deposition, the person answering questions is not allowed to discuss the questions with their attorney before answering.
Under Oklahoma laws governing civil procedure, unless otherwise agreed, witness depositions must be taken in the county where the witness lives or an adjoining county or the county where the subpoena was served on the witness. Parties to the action may also be deposed in the county where the lawsuit is filed. Depositions must normally be scheduled on a non-holiday weekday and during normal business hours. The maximum length of time a typical deposition can take is six hours.
Objecting to Questions During a Deposition
When testimony is being taken by deposition, the attorney asking the questions must not try to confuse the person answering or unfairly try to influence the person’s answers. The attorney representing the person being deposed may rightfully object to the questions being asked in any of the following circumstances, which may then lead to a question being withdrawn or rephrased.
- Asking a question that has already been answered – Asking about similar information repeatedly is seen as a tactic to try and get a person to contradict a previous answer.
- Asking questions in a harassing manner – Questions cannot be presented in a manner designed to elicit an unfavorable emotional response.
- Asking questions concerning privileged information – Certain information between a doctor and a patient or an attorney and client is considered privileged and does not need to be disclosed.
- Asking a speculative question – Speculative questions ask the responder to give an answer to a ‘what if’ factual situation and are not based on the actual facts in dispute.
- Asking a question when the answer results in a legal conclusion – These questions are inappropriate because legal conclusions are only to be made by a judge or jury.
When an attorney objects to a question being asked, the deponent should not answer until instructed to do so. If a deposing attorney continues to ask objectionable questions, the attorney for the deponent may decide to end the deposition.
How to Prepare for a Deposition
Unlike other types of discovery when an attorney may assist a client with their responses, proper deposition questions must be answered directly by a deponent without the advice of an attorney. However, the procedure for depositions tends to be rather routine, and a deponent’s attorney can anticipate and go over potential questions to help prepare appropriate answers.
Other tactics that can aid a person in preparing for or during a deposition include:
- Review all of the prior evidence – the police report, prior statements, medical records
- Listen to each question carefully. Wait for the attorney to finish asking it before responding.
- Answer each question completely with as little information as possible. Never volunteer information. This is not the time to tell a story.
- If your attorney objects to a question, don’t answer until told to do so.
- Be sure to clearly understand a question. If a question seems unclear or confusing, ask that it be clarified.
- Don’t speculate or guess if the answer to a question is not precisely known. Only give information from personal knowledge.
- Try not to communicate with emotion or body language. If a break is needed, ask for a brief time to regain composure.
Having a deposition taken is just part of the legal process when making a personal injury claim. How intense or not the experience will be often depends on the circumstances of the accident and the injuries being claimed. The best thing a deponent can do is be adequately prepared beforehand, listen to their attorney, and keep cool during the proceedings.