What is a Deposition?

A deposition is the taking of sworn testimony. In terms of personal injury litigation, a deposition is allowed by the Florida Rules of Civil Procedure and is one of the primary tools of discovery used by both sides in litigation. The overall purpose of a deposition is to take the sworn testimony of the witness or party so that the opposing party can discover what testimony may be offered at trial. The positions can also play a significant role in the negotiation and potential settlement of a case.

In a typical personal injury case, depositions of the plaintiff and defendant are usually scheduled after initial discovery which is the exchange of documents and written answers to questions and what are called interrogatories. The basic discovery provides each party with an understanding of the other side’s case.

In Florida, the courts favor an open exchange of discovery and will look unfavorably at attempts to hide information or surprise the other party at trial evidence not previously disclosed. Just because this is the policy that is favored by the Florida courts, it does not absolve the attorneys from doing a professional and competent job in representing their clients. An attorney who fails to ask a particular question cannot complain about surprise at a later date. Experienced personal injury attorneys understand that questions to their client must be answered but no one is under an obligation to volunteer information. It is up to each attorney to make sure that their questions are detailed and specific enough to elicit the information that they need in order to prepare for settlement negotiations or trial.

Depending on the jurisdiction, depositions usually take place in an attorney’s office or a court reporter’s office. In some locations, most depositions take place in the court reporter’s office. In other locales, depositions will take place in the attorneys’ offices. It is usually a matter of local custom and practice. On occasion, a deposition may be especially contentious. In those cases, it is not unusual for a neutral location to be selected, such as a court reporter’s office, or a deposition can take place before general master appointed by the court. But overall that is the exception and not the rule.

At some point before the deposition, the client has met and prepared for the deposition with their attorney. Often, the client has met several times with the attorney. The reason for the preparation is not to tell the client what to say. The purpose of the preparation is so that the attorney can relate their experiences to the client so that they understand the process of the deposition and how they can best present their testimony. Sometimes it is as simple as a choice of words such as crash versus accident. Most of all, the attorney wants the client to answer the questions politely and respectfully while at the same time not volunteering information that was not requested.

Once the deposition begins, the attorney who set the deposition is asking the questions. The attorneys for all the parties to the case are in attendance either in person or by telephone. The court reporter is there to swear the witness in and to record the testimony. At the end of the deposition, the deponent is offer the opportunity to read the transcript when it is done or waive that right.

Although there are numerous strategies and techniques in taking depositions, there are some basic rules involved. Attorneys can and will make objections. In many cases if the attorney does not make the objection at the time of the deposition then that objection may be determined to be waived later at trial. The policy is that the objection should offer the questioning attorney the opportunity to fix the question and ask it in a proper non-objectionable manner.

Generally, an attorney can only instruct their witness not to answer a question under certain limited situations. First, if the question seeks information that is covered by the attorney-client privilege then the attorney may properly instruct the witness not to answer. Second, if the question seeks information that is protected by the work product privilege, the attorney can instruct the witness not to answer. Third, if the questioning attorney is being rude, unprofessional, abusive or harassing the attorney can not only tell his client not to answer a question but can also terminate the deposition and seek a ruling from the court. Most attorneys understand that the behavior of the questioning attorney will need to be extreme in order to have the court enter sanctions.

While the deposition experience can vary depending on the type of attorneys that are involved in the case, if you have a personal injury lawsuit then you are likely going to have to get through your deposition. In addition to the exchange of discovery materials, and the gathering of evidence, your deposition will play a significant role in the defending lawyers evaluation of your personal injury case.

The attorney will not only report on your answers but also as to your demeanor and potential jury appeal. These are important items of information for any insurance company in their decision-making process of whether to offer a reasonable settlement or to take their chances with a jury trial. If your personal injury lawyer properly prepares you for your deposition, then you should get through the experience without any significant problems. So long as you tell the truth and listen to your experience personal injury lawyer in terms of preparation and presentation, your deposition can add value to your case.

At Wolfson & Leon, our Miami car accident lawyers and personal injury attorneys attend and defend depositions every week. We have been representing personal injury victims in litigation since 1963. If we are lucky enough to be your attorney, we will make sure you are properly prepared for your deposition. If you have any questions about deposition preparation or the process itself, then please call us at (305) 285-1115 and we will be happy to answer any question you might have.