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Deposition FAQs

What is an examination before trial?

An examination before trial is also called an EBT or a deposition. It is a legal proceeding where both sides answer questions about their lawsuit under oath in front of a court reporter and lawyers. A transcript of the proceeding is made including all the questions and answers.  All sides to the lawsuit are represented by attorneys but no judge or jury is present. Some of the questions and answers may become evidence in your case.

Why are examination before trials important?

Examinations before trial are important because it is an opportunity to devalue or lose your case. Lots of times a lawsuit is won or lost by what the parties say at a deposition. Careful and meticulous preparations are mandatory. Exactly how your accident happened and what your injuries, treatment and complaints are will be explored in excruciating detail during the proceeding. A good lawyer will carefully prepare you and guide you through the deposition.

What is the main purpose of the deposition?

The main purpose of a deposition is to evaluate the witness, explore the claims and defenses to the lawsuit and obtain missing information.

Who is present at a deposition?

All parties to a deposition have a legal right to be present at all depositions. That includes the plaintiff, defendant, plaintiff’’s lawyer, defendant’s lawyer, and a court reporter or videographer.

What happens at an examination before trial?

Depositions or examinations before trial  are usually held at the courthouse or in an attorney’s office.  Each party to the lawsuit is represented by an attorney and court reporters are there to record the proceedings. All  depositions are taken under oath with the penalties of perjury for lying. Questions are asked by the opposing party’s lawyer and the witness provides answers. A transcript is produced by the court reporter of every question and answer and everything said at the examination before trial. Watch what you say because everything is recorded by the court reporter.

Can a settlement be made at a deposition?

Settlement offers are sometimes made at a deposition. They are rare. More often offers of settlement are made after all discovery is finished. Settlements can be made at any time even after a jury verdict. Although one is rarely made if you lose a jury verdict. Remember that settlements are the result of negotiation between the parties. Your lawyer’s advice of when to settle and for how much money is invaluable.                 

How long does it take to get a settlement after deposition?

Cases rarely settle after just the deposition of the plaintiff.  Once the deposition is finished of all parties to the lawsuit and all non-parties to the lawsuit  the case is then evaluated by all attorneys for additional needed discovery and the relative strengths of each party’s position. There are too many variable factors to put an exact time to receive a settlement offer following  depositions. Every attorney involved in a lawsuit keeps an eye on a possible settlement and works toward that goal from the first day of their involvement in the lawsuit.

Does the deposition mean my case is going to trial?

No, it does not. Attending a deposition is one step in the long process of going to trial. Most personal injury cases do not go to trial. They tend to settle before that.

What happens after an examination before trial?

After your examination before trial or deposition is completed additional discovery generally takes place. That can include a physical examination by one or more physicians hired by the defense in a personal injury case. Additional  medical records of treatment are collected and reviewed. Your case is put on the Court calendar because all discovery has been completed and you wait for your time to go to trial. During that wait the attorneys often will meet with the Court in an attempt to resolve the case. If that is not possible, the case will go to trial before a judge and a jury.

How long do the depositions last?

Depositions can last anywhere from a half-hour to a few hours.  Some depositions take all day and require multiple days to complete.  Remember each attorney at a deposition has the right to ask you questions about you in your case.  Each party in a lawsuit whether plaintiff or defendant must be deposed. 

What types of questions will I be asked at a deposition?

Defense attorneys at depositions are given wide latitude and ask whatever questions they feel are necessary to defend the case. Many of the questions will seem unnecessary to you but your attorney will not let them ask questions merely to harass you. 

Remember that defense attorneys already know the answers to most of the questions they ask and are questioning you to evaluate your demeanor and truthfulness. Usually, they are seeking to fill in the gaps in their information about the case.  Always be truthful. 

 Generally speaking deposition questions fall into these 5 broad categories: 
 
  1. Historical and biographical information. This includes information like social status, educational status, medical history and work history. 
  2. Accident or malpractice details.  How your accident happened, witnesses, time and place, weather, speed, road conditions, what you were looking at and what you were doing. This list is not meant to be all-inclusive but should serve as a general guideline.   In malpractice cases the questions will focus on your medical care, who provided it, your complaints and tests you underwent. 
  3. Conversations.  in general negligence cases like car accidents and slip and falls conversations focused on what was said at the time to first responders, witnesses and medical personnel.  Any statements by the opposing party will also be explored. In malpractice cases conversations with the defendant doctors in treating doctors and other medical personnel will be gone into detail by the questioning. 
  4. Treatment for your injuries will be probed.  The first date of treatment and of pain will be asked.  Names and addresses of all medical personnel and treaters will be asked for even though they have already been given to the defendant’s lawyers.  What type of medical tests and treatments have you undergone?  Where any of those treatments successful and to what extent. 
  5. Injuries/ limitations. What injuries and limitations do you claim to have sustained from the accident or malpractice?  Be wary of claiming there are activities and things that you cannot do at all.  Defense lawyers will have access to your social media and your friend’s social media looking for photographs doing the very activities that you claim you cannot do.  If that fails the defense there is always secret surveillance of you and an evaluation by physicians of their choice. 
As a final note, your attorneys should meet with you at least once if not more prior to your deposition to go over the things I’ve mentioned and those things which have not been mentioned. 

What are some common answers to Deposition questions?

Please fully understand the question asked and the implications of your answer. 
 
Try to use these answers when appropriate and discuss them with your Attorney beforehand. 
 
  1. I don’t understand the question.  
  2.  I don’t remember 
  3.  I don’t know the answer 
  4.  I am not sure. 
Please remember your purpose at a deposition is to answer the questions put to you. Do so politely and do not volunteer information. Never argue with the defense lawyer. This is not a conversation and the lawyer on the other side is not your friend.  Do not be upset if you are not asked a particular question because your time to tell all about your case is at trial not at the deposition. 

What is a videotaped (virtual) deposition?

A videotaped deposition is a regular deposition recorded using software like Zoom or Teams. No video tape is used.  It is all done digitally over the internet.  Not only is a written transcript produced but a movie of the proceedings with full visuals and audio is produced.  What this means is that everyone involved can evaluate the movie and the witness in terms of what they look like and sound like answering questions. 
 
Body language experts and novices alike can evaluate the truthfulness of witnesses and determine whether they are lying or exaggerating key facts in their testimony. For plaintiffs, this means their answers will be scrutinized for truthfulness about how the accident happened and the nature and extent of their injuries. The limitations caused by their injuries will be visually explored. Does the claimant seem happy and un-injured, or do they present themselves as a sympathetic figure?  The defendant’s review will include a more detailed evaluation about how the accident occurred, why decisions were made or not made, and credibility will be assessed. In other words, does the witness look like a liar or faker? 
 
Importantly, the witness’s audio and visual impact on a jury can be assessed.  Many times, what is said by a witness is just as important as how it is said and how it looks. 

What is the physical difference between a traditional deposition and a video deposition?

In a video taped deposition your lawyer is usually seated right next to you and the Webcam or camera is in front of you. Most times the defense counsel is asking you questions remotely on a monitor or television screen. Most clients find this set up preferable to the in-person confrontation when the defense lawyer is in the room with them. The court reporter who produces the deposition transcript and many times the video recording will also be remote and not in the examination room.