I am often asked by my clients what their involvement will be if a lawsuit is filed and the case does not settle before litigation. My typical answer is to explain they will have to answer written questions called interrogatories, which are part of the discovery process. They will also have to appear for trial if things get that far. And they will almost certainly have to appear for their deposition to be taken by the opposing attorney. Over the 30 years I have done this, it has become apparent that very few clients even know what a deposition in a personal injury case is. Yet almost all of them tell me they are extremely nervous about them.
Let’s calm everyone down and explain what a deposition is — and what it isn’t.
While my beloved home county of Cook County in Illinois is the only place on the planet that still utilizes carbon paper to prepare multiple copies of the court orders we write to memorialize each court appearance, for the most part, depositions are pretty much standardized throughout the country.
With one exception. Illinois still distinguishes between a discovery deposition and an evidence deposition. How to explain the difference?
A discovery deposition is used to “discover” information that might turn into relevant information. It also is a way to “lock in” a witness, so that if they change their testimony later, they can be impeached by their prior statement at trial. If you say the light was green at your deposition, but later say you aren’t sure, the opposing lawyer will be sure to “remind” you of your prior statement, to make you look shaky about your memory or outright loose with the facts.
Discovery depositions do not follow the rules of evidence, and objections are more plentiful. Witnesses can avoid answering some questions. The way questions are asked is also more varied, due to the evidentiary rules not applying strictly.
On the other hand, an evidence deposition is evidence. It is testimony to be used at trial. An example would be a treating physician who is busy operating on six people a day. In order to not inconvenience the good doctor, the attorney seeking his or her testimony would ask to take the evidence deposition of that doctor. That testimony could then be presented to the jury at trial as if the doctor was there. It can be read to the jury or, if the deposition is videotaped, can be shown to the jury.
Most of my cases take place in Illinois state court, meaning that, unlike federal court, there is a discovery deposition and potentially an evidence deposition.
Once my client and I have completed answering the written discovery questions and producing documents (and the opponent has responded to our requests), we proceed from “written discovery” to “oral discovery,” meaning it is deposition time.
We almost always begin with depositions of the parties — plaintiff, defendant, and any fact witnesses. (These are usually known as “fact witnesses,” defined and classified under Illinois Supreme Court Rule 213(f)(1).)
Then, after that, the defendant will often take one or several depositions of the treating physicians. (These are often called “non-controlled experts,” classified under Supreme Court Rule 213(f)(2).)
Finally, if either party has named a “controlled expert” (controlled by Supreme Court Rule 213(f)(3)), those depositions proceed. A controlled expert is typically a “hired gun,” with no connection to the case other than being hired for his or her expertise.
Other than boredom?
The anticipation is often worse than the reality.
In short, the deponent will be asked questions under oath. A court reporter records the deposition in shorthand and transcribes it later.
The questions can be tedious. The deposition can last up to three hours without a court order allowing it to go longer.
Think about how stressful that sounds if you are the one injured in a car crash that occurred a few years ago. You now have to sit in a lawyer’s office, with all these people in the room, and answer questions about something that you don’t remember very well. And, because it is the lawyer’s job to ask detailed questions, the questioning will be very precise. (“How many car lengths from the corner were you when you first saw the other vehicle?” “When you visited Dr. Quack on August 27th, was your pain level better or worse than the last visit?”)
One way to make it not so horrible is to calm my client down. I remind them that although they are being judged in every respect and evaluated for how they will appear as a witness at trial, this is not taking place in a courtroom, and there is no jury there.
I like to meet with my client prior to their deposition. Some clients with very complex cases might require hours of preparation over several days. Other clients can be prepared adequately in under an hour. I also have found that the less I prepare people, the less nervous they are. In the long run, some people are very comfortable answering questions. Others flat out can’t remember their children’s names or wedding anniversaries, or get stumped by the most straightforward questions.
I review all discovery answers, the police report, and at least some important medical records with the client. I try to keep things general. Rather than having a client memorize the days they went to doctor Quack, I’d rather have them know a general chronology of treatment (“I saw Dr. Quack for about three months, and she prescribed therapy, which I had at XYZ”).
I review any photos of the injuries, the crash scene, or the vehicles involved (or in a slip and fall, of the place they fell), so the client is comfortable with what is shown in each.
I try to remind the client to provide answers that are guarded, so that they answer only the question asked, rather than volunteering information. My standard instruction is that if the other attorney asks your name, you provide it but do not volunteer to spell it until he or she asks.
Most important, I try to explain the overall strategy and theory of the case to the client, including what we must prove and how we plan to do that. Once a person understands the big picture like that, it makes answering questions about minutiae much easier.
As in all cases involving injury and potential liability, if you have been hit by a vehicle, immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.
If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.
Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.