Understanding Depositions and How it Can Help Your Case: Personal Injury Lawyers in Greenville Explain What Happens at a Deposition and Will I Have to Go?
Individuals injured in a car crash, trucking wreck, slip and fall, or another type of accident may be entitled to compensation for their personal injuries, lost wages, and other damages. Some of these cases may settle before a lawsuit is filed, sometimes even after just a few letters or telephone calls between a plaintiff’s personal injury lawyer and the defendant’s insurance adjuster or attorney. However, most cases will need to proceed to litigation, where a formal complaint is filed and served, officially marking the “commencement” of a personal injury lawsuit. But even then, statistics reveal that approximately 95% of all cases will still settle before trial. Some of these cases will even settle before depositions, whereas some will settle right after. Many victims and their families injured in South Carolina ask our personal injury lawyers in Greenville what happens at a deposition and if they will have to go.
Here at Hammack Law Firm, we know that the answer to this question depends on several factors – some of which are out of the victim’s control (such as a difficult or unreasonable insurance adjuster). However, our experienced personal injury lawyers in Greenville treat every lawsuit as one that will go to trial, including going through depositions. As a result, we prepare every step of the way while zealously advocating for our clients and their families. Therefore, it is best to understand right from the beginning what a deposition is and whether you will need to go, allowing you to prepare yourself for it.
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What is a Deposition?
Also known as an examination before trial (or EBT), a deposition is where a witness provides sworn testimony in a case. The questions are asked by the attorneys, usually just the attorney for the opposite side of the party being “deposed.” Like testimony at a hearing or trial, there is a stenographer who records the questions asked by the attorneys and the answers given by the witness.
Generally, the witnesses are the parties to an action, but they can also be third parties who may have knowledge of the facts (such as, for example, Princess Peach, who witnessed Bowser rear-end Mario’s go-kart). Also, like a trial, the attorneys may make certain objections. Most of these objections are to “form” or the way the question was asked; therefore, a witness must still answer the question. However, some questions may be about privilege, which may result in a witness not being allowed to answer.
Unlike a hearing or trial, there is no judge. The stenographer swears in the witnesses, the parties agree to the “ground rules,” and the attorneys govern themselves during the course of the deposition. Should an issue arise, the attorneys may flag a series of questions for a judge’s review. When a really serious issue arises, they may call the judge’s chambers and ask for an immediate ruling. Such a ruling is often subject to a motion, but most times, it does not have an impact unless the matter goes to trial and on appeal.
What are Some Things That Are Discussed at Depositions?
There are many possible things that may be discussed during a deposition for a personal injury case. Generally, the questions will revolve around the circumstances of the accident and the injuries that were sustained by the plaintiff. Therefore, the attorneys will ask questions related to this, as well as try to uncover information that may help their case fit within established law.
As a plaintiff, some of the most common types of questions that you will be asked include the following:
- When did the accident happen
- What were you doing at the time of the accident
- Where were you going when the accident occurred
- How the accident occurred (your version)
- What you were wearing (slip and fall)
- What you were driving and when it was last maintained
- What injuries did you sustain on or near the time of the accident
- What injuries developed following the accident
- If you had any prior or preexisting injuries, especially to the parts of your body that are now being claimed in the lawsuit
- Financial harm, including medical bills, lost wages, and future damages
- About your treatment and what options you had
- Future impacts and limitations
- Employment history and whether you are still able to continue working and
- Other questions related to your accident and your injuries.
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What Types of Personal Injury Cases Are More Likely to Result in a Deposition?
Although any lawsuit can result in depositions, certain types of cases are more likely to result in depositions. Oftentimes this has to do with the type of case, as well as damages, liability, and other factors related to the case. Some of the most common reasons why a lawsuit continues to a deposition include the following:
- Cases with severe injuries
- Liability issues, such as accidents at intersections or “he said, she said” types of claims
- Cases involving significant damages, such as lost wages or future lost earnings
- Matters involving significant loss of consortium claims (claims by a spouse or family member)
- Where there is a claim of a preexisting injury
- Where the other side challenges causation (i.e., the negligence caused the injuries)
- Due to a difficult insurance adjuster or defense lawyer
- Matters involving complex legal issues or facts
- Medical malpractice or nursing home malpractice cases
- Cases where there is a claim for comparative fault (such as stepping on a banana peel or causing a Wiley Coyote accident)
- Injuries to children
- Matters involving multiple parties, even if just multiple defendants (such as pileup car crashes)
- Trucking accidents involving FMCSA violations and high insurance policies, and
- Many other types of cases or unique issues in cases
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Will I Have to Testify at my Deposition in South Carolina?
Yes, generally, an injured victim will need to testify at a deposition in a personal injury case. There are some exceptions, including where a case settles before depositions occur. However, a victim or a witness will need to testify before any case that does not settle before the deposition.
Some of the exceptions to this rule include the following:
When the Plaintiff is a Young Child
The attorneys may agree that a young child is not able to testify, either due to injuries or “capacity.” The most obvious grounds for capacity include where a child does not understand what it means to tell the truth, as they are too young. Sometimes, the attorneys will want to hold a hearing on this issue for a judge to rule or will conduct a deposition to assess whether a child knows the difference between the truth and lies.
If a child is too young to do this, the attorneys will often enter a stipulation that agrees the child cannot testify due to capacity and that no party can subsequently call the child to testify unless both parties get to do a deposition. Although there is no set age cut-off for when a child is determined to be too young to testify at a deposition, anytime a child is under 10 years old, this needs to be seriously considered.
Extreme Fear or Emotional Distress
A witness may be excused from testifying in certain situations involving extreme fear or emotional distress, which produce possibly life-threatening or damaging harm. This exception is rare but may be available in matters where an individual is raped and viciously assaulted due to the negligent security of a hotel or facility. When the victim is a young child, it becomes more likely that this exception may apply. However, it is truly a very high standard to meet, often requiring medical testimony from a physician, and should not be relied on.
Emotional or Cognitive State
Sometimes, a plaintiff’s emotional and cognitive state may excuse them from going to a testimony. For instance, where a plaintiff has a disability or has suffered a personal injury affecting his or her cognitive state to a significant degree, that testimony may be deemed unreliable and excused. This is often done to avoid a situation where a party’s handicap is being used against them. Although this exception is also rare, it can occur in cases involving traumatic brain injuries and become nonverbal or unable to understand fact from fiction.
Due to Disability
Where a plaintiff suffers personal injuries that result in disability or where an individual has a diagnosed, preexisting cognitive disability, their testimony may be excused. This is particularly true when a victim cannot testify due to injuries from an accident, such as from being in a coma. Although a judge may require the parties to give a reasonable opportunity for the party or witness to regain consciousness and capacity, that time period is not unlimited.
Still Not Sure What Happens at a Deposition and Will I Have to Go? Contact Our Experienced Personal Injury Lawyers in Greenville, South Carolina for Help
After a personal injury accident, if you or a loved one have questions or need help recovering compensation, call the experienced personal injury lawyers in Greenville, South Carolina, at Hammack Law Firm. Our bodily injury lawyers offer free consultations and case evaluations, allowing victims and their families to ask questions and get answers without having any obligations to sign up or pay for help. To learn more about your rights and what happens at a deposition or whether you will have to go, contact us today by calling (864) 428-7591 or by sending us a message through our contact form available here.