There are two moments in a birth injury lawsuit where a client has a major role to play. The first is to help answer written discovery questions given by the defendants. The final role is to testify at trial. Between those two events is the client’s deposition.
Depositions are semi-formal proceedings. It is an opportunity for the lawyers to learn more about the case by asking questions of plaintiffs, defendants, witnesses, and experts. These questions are recorded, sometimes by video, but more frequently just by transcript. The following people may be at a deposition:
- The court reporter: the court reporter is the person who types up the transcript. She records everything that is said in the room using a specialized computer. This transcript may later be used as evidence.
- The videographer: if requested, the deposition may be videotaped. This recording, like the transcript, can be used as evidence at trial. If the defendant plans to videotape your deposition, we will let you know beforehand. We welcome videotaped depositions of our clients because the recording can be given to the insurance adjuster so they know what a good impact our client will make at trial. Some birth injury cases settle shortly after a client’s deposition.
- The lawyers: the lawyers (and sometimes assistant paralegals or law clerks) from each side will be present.
- The deponent: the person being deposed is known as the “deponent.” This is the person who must answer all of the questions.
- The parties: the parties to a lawsuit have a right to be present at each of the depositions. It is uncommon for the parties to attend every deposition, however. Most birth injury lawsuits have between 15 and 30 depositions, each lasting between one and five hours, on average.
When a party to a case arranges for a deposition, that party’s lawyer has the right to ask questions. These questions are answered by the deponent under oath, meaning that they must be answered truthfully and under the penalty of perjury. The other side’s lawyer will have the opportunity to object to improper questions, and will be able to ask questions after the first lawyer has finished.
We commonly tell our clients that there are three rules for a deposition:
- Tell the truth. The most important thing in any deposition is that the witness tells the truth. Particularly for the parties in the case, telling a lie, even a white lie, can affect credibility. In our experience, credibility is the most important characteristic of any witness at trial. If the jury believes that the witness lied on one occasion, they have an excuse to disbelieve all other testimony by that witness. If that witness is the plaintiff, they have good reason to find against them when deciding on a verdict. Even if the truth is painful or if you believe the truth casts you or your case in a bad light, it is better than a lie.
- Keep your answers short: The defense lawyer’s job is to find out as much information as he can, and to pin you down on the facts of the case. Your job is to be truthful, but you should not volunteer information. Your answers should be as short as possible—preferably “yes” and “no.” Remember—the defense lawyer, even though he may be friendly, is not your friend. Do not think of the deposition as a conversation. It is more akin to a major battle in the lawsuit war. If the defense lawyer pauses, do not feel the need to “fill the empty space” by talking. Make the lawyer do his job by asking the right questions.
- Don’t guess: If you do not know an answer, do not guess. The defense lawyer will try to pin you down about dates, distances, time measurements and events. It’s okay if you don’t know—in most cases, there are other ways for us to find out the important information. Guessing wrongly, however, can hurt the case. Simply tell the defense lawyer that you do not remember, or you do not know. Don’t let them force you into answering a question that you do not know.
You will be permitted to take breaks if you need them—simply ask us, and we will arrange it. The role of your lawyer at a deposition is simple—our job is to ensure that the process goes smoothly and that the other lawyer follows the law. If we start to speak, wait to answer until we finish—we might be trying to tell you that the other lawyer asked an improper question, and we might be instructing you against answering it. Typically, we won’t need to ask many questions during your deposition.
Preparing For Your Deposition
We will spend time with you before the deposition reviewing the information that you know and remember, and going through the questions that you can expect from the defense lawyer. By the time of your deposition, we promise that you will be well-prepared. In addition to a mock deposition, where we role-play the deposition, we will probably:
- Have you review all of your discovery responses. At some point before your deposition you likely signed answers to interrogatories under oath. We will ask you to review those answers so that they are fresh in your mind.
- Have you review all important case documents. If there are any photographs or other documents that you provided to us, or that we believe you should know about, we will provide those to you before the deposition.
The deposition of a parent or guardian in a birth injury lawsuit typically lasts between two to four hours each. Some of this is spent on questions that you might feel are irrelevant, like where you live, people who live with you, and even your medical history. Rest assured, we will not let the defense lawyer ask any improper questions. The important thing is for you to stay calm during the deposition, ask us if you have any questions, and to get a good night’s rest.
If you would like to see a sample deposition transcript of a parent in a birth injury cases, contact us at (440) 252-4399 or click here to send us an online message. If you believe you have a birth injury lawsuit, please call us and we will do our best to help you and make you as comfortable as possible through the whole process.