What Is a Deposition?
In a civil case, each party has the right to review the evidence and testimony that the other side presents. There is no reason to wait for a trial to receive that evidence or testimony—in fact, surprises like that don’t often happen. The official fact-finding phase of a lawsuit is called “discovery,” and depositions are a key part of discovery—although they can also be held before a lawsuit is filed. Depositions allow plaintiffs, defendants, and witnesses to give their sworn testimony before trial. This gives both parties the opportunity to review their positions and, hopefully, negotiate a settlement without having to go to trial.
What does this mean for you as a claimant in a personal injury case? If your claim does not settle quickly, you may need to be deposed. The idea of testifying under oath can be frightening, and the thought of cross-examination even more so, even though you know you will be telling the truth. Your personal injury attorney can help reassure you and explain what will happen during and after the process.
The Deposition Process
In Texas, a deposition may be given orally or in writing. In either type of deposition, the deponent—the person being questioned—testifies by answering direct inquiries from their attorney, followed by cross-questions from the opposing attorney. If an opposing attorney asks the deponent a question that is against the rules in some way, the deponent’s attorney will object. The deponent may not have to answer if their attorney objects, although this is not always the case.
Written depositions consist of prepared questions that the deponent answers under oath in the presence of a deposition officer. At oral depositions, the deponent appears with their attorney, and the other side’s attorney appears to conduct the cross-examination. Additionally, the deponent may be requested to bring certain documents with them. A court reporter creates a transcript or a video that will serve as a formal record of the deposition.
Your attorney will advise you about how to prepare for the deposition: what to wear, what to expect, and how to approach the questions you receive. The rules forbid an oral deposition from exceeding six hours, although it is unlikely you will need to stay so long.
After the Deposition
Investigation will continue, and if a lawsuit has already been filed, your attorney will be handling the discovery phase of the suit. This must follow certain deadlines and rules set by the Rules of Civil Procedure. Discovery can include:
- Requests to enter and examine real property (such as the site of an accident)
- Requests for the other party to produce documents or other physical objects for examination
- Finding and consulting expert witnesses about the accident or the injuries
- Finding and examining eyewitnesses and other people with relevant knowledge
You may also be under private investigation. Investigators hired by insurance companies or defense counsel go on the lookout for fraudulent claims or anything that can be twisted into “evidence” that you are exaggerating or lying. They may follow you physically or record you remotely, and they will certainly examine any information you post on the internet. It’s best to avoid posting pictures on social media or making any public statements about what happened to you.
As part of the discovery process, you may have to undergo an independent medical exam (IME). The law only requires you to do this if a judge grants a defense motion for it. Despite the phrase, the examining doctor may not actually be “independent” in reaching their conclusions. Some doctors have ongoing professional relationships with insurance companies or defense counsel, and it is in their interest to produce results the companies will appreciate. Thus, it is wise to be very careful about what you say, even if the doctor seems kind; they may be an “agent” of sorts. Your attorney can help you prepare for an IME and anticipate any misleading tactics.
Your attorney is also likely to be conducting other depositions in the case—examining witnesses and cross-examining the opposing party. After the depositions are complete, the attorney will also need to receive and review the transcripts, which may take some time. New facts and avenues of investigation may come to light. Your attorney will look for any information possible to “impeach” the other side’s testimony—that is, to show that it is not believable.
As the investigation and discovery proceed, each party will come to understand how they stand in the case. The party at fault should realize that they need to settle if they want to avoid more expense; they are likely to attempt a “lowball” offer first. Your attorney will work to keep the pressure on, negotiating for a settlement that will cover your needs without subjecting everyone to the costs of a trial.
The Crash Angels at the Pelaez Law Firm, Crash Angels know how this process works. We have local experience with depositions, investigations, and medical examinations—we can defend you and help you protect yourself. If you have any kind of personal injury claim in Texas, especially one involving car accidents, truck accidents, or catastrophic injuries, we want to hear from you. Contact us today at 210-801-9314 to schedule your free initial consultation in our San Antonio offices.