Many clients are nervous, if not downright scared, of being in a deposition. Most people are never involved in a deposition until they get injured in an accident, and their accident case goes into litigation. Many don’t know what’s going to happen, what questions are going to be asked, and even if a judge is going to be there. With a combined total of 50+ years of experience, the Las Vegas car accident attorneys at D.R. Patti & Associates know that preparing the client for a deposition includes explaining the process, answering the client’s questions, and letting them know there is nothing to be scared about. This blog demystifies the deposition in a Las Vegas personal injury case.
What is a Deposition?
A deposition is an investigatory tool in lawsuit that the parties can use to learn and record a party or witness’ anticipated trial testimony. A good trial attorney will want to know what the other party knows and the evidence that party intends to use well before a trial. As explained in another blog about discovery during litigation, the law does not like surprises at trial. Trial attorneys also don’t like surprises. Also, when a person is represented by an attorney, the opposing party’s attorney cannot speak to that person without their attorney present. So, the law allows the other party to ask questions of the plaintiff with the plaintiff’s attorney present.
Trial attorneys use depositions to impeach a deponent at trial. Impeach means to call into question the truthfulness of a person. In other words, a trial attorney uses a deposition transcript to show that someone is lying or doesn’t know what they’re talking about. That is impeachment.
Are Depositions Common In Personal Injury Lawsuits?
Only a fraction of all personal injury cases end up in litigation. Once a personal injury case does go into litigation, however, it is likely that depositions will be taken. Depositions generally occur even in Las Vegas car accident cases that go into the Mandatory Arbitration Program. Attorneys use depositions to conduct their investigation and to prepare for trial. Attorneys generally do not like going to trial without knowing what the parties and the witnesses will say. Attorneys cannot speak to the other party in the case without an attorney present. Nor can attorneys send an investigator or any one on their behalf to talk to the other party. That is unethical and prohibited by the Nevada Rules of Professional Conduct. So, to find out what a party’s testimony will be, the opposing counsel will generally want to take that party’s deposition.
While an attorney can speak to witnesses who are not represented by an attorney, trial attorneys prefer to have the witnesses’ testimony recorded. By recording a witness’ testimony in a deposition prior to a trial, an attorney can use the transcript of the deposition to impeach the witness’ testimony.
Who Can Be Deposed?
Unlike some other tools of discovery which can only be used against another party, depositions can be taken pretty much of anybody, including the parties. The plaintiff (i.e., the person who brought the lawsuit) will more likely be deposed. The party who is sued is called the defendant. The plaintiff’s attorney may depose the defendant prior to the trial. This is particularly true if there is a dispute about who or what caused the accident or whether the defendant was negligent.
The doctors and other health care providers who treated the plaintiff can also be deposed. However, it’s more likely that only some of the doctors and witnesses will be deposed.
Witnesses to the accident can also be deposed. People who are close to the plaintiff and have information as to how the accident-related injuries affected plaintiff may also be deposed. This could include a plaintiff’s spouse or any adult residing with them.
If the plaintiff has lost income or wages, the plaintiff’s employer may also be deposed.
Lastly, the parties’ expert witnesses will also likely be deposed.
Who Else Will Be At A Deposition in A Personal Injury Lawsuit?
The deponent and the attorneys for the parties in the lawsuit will, of course, be at the deposition. The party or witness who is being asked questions (i.e., the deponent) will, of course, be there. A court reporter will always be at the deposition, and sometimes, a videographer.
The court reporter types up all the questions and answers and will create a transcript. The person who is being asked questions in a deposition is called the “deponent.” The deponent will be given opportunity to review the transcript of the deposition and to correct any mistakes in the transcript. The deponent will usually be reminded that any changes he or she makes to the transcript may be used to impeach him or her at trial.
In some cases, a videographer may also be present during a deposition. Some trial attorneys prefer to play back clips from the video of the deposition to a jury in a personal injury trial. A video has more impact to a jury that reading a transcript.
A judge will not generally be present during a deposition. In Nevada, however, the attorneys may call the judge presiding over the case or the Discovery Commissioner during the deposition. This happens when the attorneys have a dispute that needs to be resolved before the deposition can continue.
While the parties to a lawsuit may also be present during the deposition, other witnesses who are expected to testify at trial cannot be present.
What Happens During A Deposition?
A deposition begins with the court reporter swearing in the deponent. The deponent takes an oath to tell the truth, and this is the same oath a person will take if they were to testify in trial. The attorney who set the deposition and will be asking the majority of the questions then gives his “admonitions.” That’s what attorneys call them, but they really are just the rules of the deposition. The following are some of the common admonitions:
- Reminder to the deponent of his oath to tell the truth
- Answer all questions verbally. The court reporter has difficulty recording gestures, such as nodding or shaking of the head.
- Let the attorney finish his or her question completely before answering. Basically, don’t speak over each other.
If the deponent answers a question, the attorney will assume the deponent understood the question.
What Questions Will They Ask To A Personal Injury Plaintiff?
In a deposition of a personal injury plaintiff, the topics usually covered are:
- The plaintiff’ background – this includes the plaintiff’s employment and educational history, certain prior convictions, past addresses or living situations
- How the accident happened, what led to it, and what happened immediately after the accident – In a car accident case, the defense attorney will usually want to know where the plaintiff was going to at the time of the crash and where the plaintiff came from. The defense attorney will also want to know whether the plaintiff spoke to the defendant at the scene and what they talked about.
- The plaintiff’s injuries and medical treatment – Covering this topic is usually where the defendant’s attorney may get tricky. The defendant’s attorney will usually already have reviewed the plaintiff’s medical records. He or she may even have the medical records in front of him or her during the deposition. The attorney generally already knows what the medical records say. The defense attorney’s hope is that the plaintiff says something different than what the medical records say.
- Any limitations in plaintiff’s activities – An aspect of plaintiff’s damages is lost enjoyment of life. So, the defense attorney wants to know what aspect of plaintiff’s life has been affected by the car accident injuries. Has the plaintiff stopped working out or going to the gym because of his/her injuries? Has the plaintiff been able to do household chores? Or has plaintiff had to pay others to do the chores plaintiff normally does?
- Any pre-existing conditions or injuries – In many car accident cases involving injuries to the neck or back, the defense may argue that the neck or back injuries pre-existed the accident to some degree. So, in a deposition, the defense will ask the plaintiff if he or she has ever had the symptoms they are currently complaining about. The defense will also want to know the doctors or other healthcare providers the plaintiff has seen before the accident.
- Any prior accidents or other personal injury or insurance claims – Insurance companies usually do a background check with the Insurance Services Office (“ISO”) database. This ISO database shows the insurance company whether a plaintiff has previously filed insurance claims. This includes any property or personal injury claim from a car accident, and could include homeowner’s insurance claims. In covering this topic, the defense attorney has two goals: (1) learn more about those prior claims and whether plaintiff’s injuries in those claims are similar to the present claim and (2) hopefully catch the plaintiff lying or failing to mention one of those prior claims.
If you or a loved one have been injured in a car accident or other type of accident, call the experienced personal injury attorneys at D.R. Patti & Associates. Our award-winning attorneys have handled many different types of car accident cases in Las Vegas and have obtained millions of dollars on behalf of our clients. While working on your case, we will keep you informed and be at your side throughout the process.