Soon after the filing of a personal injury lawsuit, both sides of the case -- the person who was injured (the plaintiff) and the person being sued (the defendant) -- will engage in the discovery process. A big part of discovery is deposition testimony. A deposition is an out-of-court proceeding in which an attorney questions a witness -- whether the plaintiff, the defendant, an expert, or some other person with a connection the case -- under oath. The deponent's answers will often help both sides evaluate the strengths and weaknesses of their case, and prepare for trial. Technically, you can depose any person with knowledge about the facts of a case.
In this article, we will discuss how a witness becomes a deponent, and we'll give examples of who might be deposed in different kinds of personal injury cases.
What is a Deposition Subpoena?
The plaintiff and the defendant in a personal injury case can expect to have their deposition taken (more on this in the next section). But some witnesses do not voluntarily appear. Instead, their testimony is compelled by a subpoena.
A subpoena is simply a legal document commanding a witness to do something -- such as produce certain documents or appear at a certain place and time. A deposition subpoena commands a person to appear at a deposition. This is a formal document that is usually signed by an attorney, although in some cases it will be signed by a judge.
The subpoena will contain the name of the case, the court where the case is filed, the case number, as well as the location, date, and time of the deposition. It may also request that the witness bring certain documents to the deposition.
Failure to comply with a subpoena can result in a court order commanding the witness to appear. The witness may also face sanctions. A motion to quash or modify the subpoena may be filed with the court if the subpoena places an undue burden on the deponent.
Deposition of Parties
In almost every kind of personal injury case, at a minimum, the plaintiff and defendant will be deposed. And, if there are multiple parties to the case, they can all expect to be deposed at some point. Depending on the state in which the case was brought, the parties will not be subpoenaed. Instead, the attorney who wants to depose the party will issue a “Notice” to the party’s attorney, stating the location, date, and time of the deposition.
Deposition of Non-Parties
Nonparties are simply witnesses with knowledge about the facts of the case. For example, in a car accident case, any eyewitnesses to the accident would likely be deposed. In a slip and fall on a city sidewalk, the city contractor who is in charge of repairing the sidewalk may be deposed. In a slip and fall at a private property, the property manager may be deposed.
Physicians, nurses, and medical staff who treated the plaintiff may be called to testify about the plaintiff’s injury and medical treatment, and about any statements or admissions that the plaintiff may have made about the incident.
Likewise, neighbors, friends, visiting home nurses, or even private investigators can be subpoenaed to testify about the plaintiff’s lifestyle and what the plaintiff can or cannot do as a result of the injuries.
In a car accident case, witnesses who observed the defendant before the accident could be called to testify about the defendant's state of mind, whether the defendant seemed to be in a rush, or whether the defendant looked to be impaired in any way.
Deposition of Experts
In almost every personal injury case, a medical expert may be deposed about the cause of the plaintiff’s injuries and other losses (damages), and the impact of those losses, including the nature and extent of the plaintiff's pain and suffering. The defendant can also call a medical expert to rebut the plaintiff’s expert.
Besides medical experts, there are many other kinds of expert witnesses. In a car accident case, an expert in accident reconstruction could be deposed to analyze and draw conclusions about the cause of the car accident. In a case where the plaintiff is claiming lost wages, an expert in economics can be deposed to testify about how long the plaintiff would have worked and what the plaintiff would have earned were it not for the injury.
In medical malpractice cases, an expert in the defendant doctor’s specialty is called by both sides to testify about whether the doctor violated the standard of care when treating the patient.
Learn more about common deposition questions in a personal injury case.