Deposition in a Car Accident Case: What to Expect

Once a lawsuit is filed, each side is entitled to discover the other's evidence before trial, and a deposition is the main way to discover what a witness will say. The defense attorney, who represents the other driver and is paid by their insurer, asks you questions under oath. A court reporter records the questions and answers and produces a transcript; the session is often video-recorded as well. Your attorney sits beside you, objects where the rules allow, and can question you afterward to clarify.

The defense has three purposes. It wants to hear your account of the crash and the injury in your own words. It wants to evaluate you as a witness, because a claimant who is credible and sympathetic is worth more to settle than one who is not. And it wants to commit you to a version of events it can hold you to, so that any later change, at trial or in a medical record, becomes a contradiction.

Your attorney will also depose the other driver, and the two depositions, with the medical records and the experts' reports, are the basis on which both sides value the case. Settlement discussions commonly intensify after depositions, because each side has then seen the other's witnesses.

Depositions follow a pattern. The attorney begins with background: your name, address, education, employment history, and prior lawsuits and claims. Then the crash: where you were going, the road, the weather, the speed, what you saw, what you did, what the other driver did, what was said at the scene, and what the police did. Then the injuries: what hurt, when, what you told the first doctor, every provider you saw, every treatment, and what the doctors told you.

Then the prior history: every earlier injury, accident, claim and treatment to the same parts of the body, which the defense already knows from the records it has subpoenaed. Then the effect of the injury: what you can no longer do, what you have given up, how work has been affected, and the lost wages. Then anything in your social media, which the defense has reviewed, that appears inconsistent with the injury.

The questions are usually courteous and methodical, and the attorney's tone is often friendly, because a relaxed witness volunteers more. The attorney is not your friend and the friendliness is a technique. A few attorneys are aggressive; the answer to either is the same: listen, answer the question, stop.

Suppose you are being deposed about a crash in which a driver ran a stop sign and struck your car, injuring your shoulder, which required surgery. The defense attorney asks how fast you were going. You were not looking at the speedometer and do not know; the correct answer is that you do not know, not an estimate offered to be helpful, because an estimate above the limit becomes a comparative negligence argument.

The attorney asks whether you had ever hurt your shoulder before. You had seen a chiropractor for shoulder stiffness four years earlier, which your attorney reviewed with you beforehand from the records. You say so accurately: a few visits, it resolved, no treatment since. The attorney, who has those records, moves on; had you said no, the records would have made you a liar on a point that did not matter.

The attorney asks whether you can lift your arm above your head. You can, with pain, and you say that. He asks about a photograph from your social media of you holding a child; you explain it was with the other arm, briefly, and it hurt afterward. The deposition takes three hours. Two months later the case settles at mediation, the defense having concluded you would be a credible witness. The pattern is typical of a well-prepared deposition.

Your attorney will prepare you in a session before the deposition, reviewing the records and the likely questions. The rules of answering are simple and hard to follow under questioning.

• Listen to the whole question, pause, and answer only that question; do not anticipate the next one or explain the answer unless asked.
• Tell the truth, including on prior injuries and prior claims; the defense has the records, and a false denial on a small point damages everything else you say.
• Do not guess or estimate speed, distance, time or amounts; if you do not know, say so, and if you can only approximate, say it is an approximation.
• 'I don't know' and 'I don't remember' are complete answers when they are true; do not fill a silence with a guess.
• Ask for a question to be repeated or rephrased if you do not understand it; answering a question you did not understand is the common error.
• Do not argue with the attorney, and do not try to win; the deposition is not where the case is decided.
• Review your social media beforehand with your attorney; do not delete anything, which can be treated as destruction of evidence.
• Take breaks when you need them, and if your attorney objects, stop and wait for the instruction.

Deposition procedure follows each state's civil rules, which set the time limits, commonly a day of seven hours in federal court and similar or shorter in many states; the rules on objections, which in most states must be stated briefly and do not stop the answer except on privilege; and whether video recording is permitted, which it generally is. A few states restrict the number or length of depositions in smaller cases, and some have expedited procedures for cases under a value threshold.

The use of the deposition at trial also follows state rules. A party's deposition can generally be read to the jury by the opposing side for any purpose, which is why a contradiction between the deposition and trial testimony is damaging. In some states a deposition can be used in place of live testimony if the witness is unavailable. The rules on what the defense may ask about prior claims and injuries, and about social media, are governed by relevance and privacy rules that vary.

The deadline for the underlying claim, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina, has by this point been met by the filing of the lawsuit, but the court's scheduling order sets deadlines for discovery, including depositions, and missing them has consequences for the case. In no-fault states, the threshold injury question is often the focus of the deposition, because the defense is testing whether the injury is serious enough to permit the claim at all.

The court reporter produces the transcript within weeks, and in most states you have the right to read it and note corrections, though changes to substance are noted and can be used against you. Your attorney reviews it for problems. The defense attorney reports to the insurer on how you presented, and the insurer's valuation of the claim is adjusted. Where the deposition went well, the offer often improves; where it exposed problems, the defense's position hardens.

The other driver's deposition, the treating doctors' depositions, and the experts' depositions follow or precede yours depending on the scheduling order. Once the depositions are done, the case is usually set for mediation, where most cases settle, and for trial if mediation fails. Your deposition is the single piece of evidence the defense weighs most in deciding what to offer.

If the case goes to trial, the deposition is used to contradict you only if your trial testimony differs from it, which is why consistency, not performance, is the goal.

A deposition is the defense's opportunity to hear your account under oath and to evaluate you as a witness, and how it goes depends on preparation with your attorney and on answering accurately, briefly and without guessing. It occurs only in a case that has been filed, which means an attorney is already involved. If you are at an earlier stage, the question is whether the claim will need to be filed at all.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you have an injury claim and are unsure what the process ahead involves, you can request a free claim review.

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