When a person is injured in a car accident and has filed a personal injury lawsuit against another party, the case enters a phase known as discovery. This is a time when each side has the opportunity to obtain evidence relevant to the allegations in the lawsuit, which can include questioning the other party and witnesses during a deposition.
Here are some things to know about depositions, what happens during a deposition, and what to expect after one has taken place.
As explained by Cornell Law School’s Legal Information Institute, a deposition is a form of out-of-court, sworn testimony. Both the plaintiff’s attorney and the defendant’s attorney have the right to depose witnesses, and these depositions can be written or oral. An oral deposition involves face-to-face questioning of the witness at a predetermined location, while written depositions involve a list of questions typed out on paper.
If you are asked to give an oral deposition, you can be noticed to attend. This requires you to show up at the set location and time in order to be deposed. Generally, the only parties who are allowed to attend the deposition are any witnesses that are scheduled to be deposed, as well as both the plaintiff and the defendant and their attorneys. A stenographer can also be present in order to make a transcript of the testimony.
Other witnesses who are not parties to the lawsuit can be required to testify at a deposition when served with a subpoena. The deposition is a critically important stage in the discovery process where the strengths and weaknesses of a case can become apparent. An attorney can explain the deposition process in greater detail.
Once a deposition has occurred, the stenographer or court reporter will make a transcript of the testimony and, assuming the right to read and sign has not been waived, each side will have the opportunity to review it to ensure that the testimony is accurate and free of errors. The attorneys will analyze information gained through the testimony and may even determine the need to depose other witnesses.
After the deposition, it is not unusual in a car accident case for the at-fault party’s insurance provider to request that the plaintiff undergo an independent medical examination, generally by a physician of the insurance provider’s choosing.
Deposition testimony transcripts are often used during the case. For example, a party may bring a “motion for summary judgment” based on things said at the depositions. A “motion” is an application for relief, and “summary judgment” is the procedural equivalent of trial inasmuch as the party bringing the motion can show that they should win the lawsuit before the facts are even presented to a jury.
Should the case go to trial, New York law provides that deposition testimony can be used under certain circumstances:
1. any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
2. the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence;
3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
4. the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move [for a protective order] to prevent abuse.
While television and the movies would make it appear that every legal claim goes to trial, according to some sources, only about four to five percent of personal injury claims are resolved at trial.
If an at-fault party’s insurance provider fails to either pay a claim in full or offer a fair settlement, the case may go to trial. The deposition often facilitates more meaningful negotiations and an eventual settlement.
A personal injury plaintiff determines if the claim goes to trial and whether to accept a settlement offer. An attorney can provide guidance so that the plaintiff’s decision is well informed.
Seeking compensation for the injuries you sustained in a car accident can be an overwhelming process. Luckily, you can have an experienced car accident attorney from William Mattar, P.C. on your side.
For your free case evaluation, contact us online or by calling (844) 444-4444