When an injury victim files a lawsuit, the insurance company for the person or business that has been sued will hire a lawyer. The lawyers for the injury victim, like a personal injury lawyer Atlanta, GA relies on, and the insurance company will then gather evidence to prepare for trial.
Lawyers generally gather evidence in two ways. First, they investigate the facts by interviewing witnesses, inspecting the accident scene, and reviewing police reports, photographs, medical records, and any other evidence that helps the lawyer understand how the accident occurred and its impact on the injury victim. A lawyer may want to have a private investigator or an expert witness (for example, an accident reconstruction expert) assist with the investigation.
The second way to gather evidence is called discovery. Discovery is a formal process of gathering evidence under court supervision. While witness interviews are useful when witnesses are cooperative, investigators cannot force witnesses to answer questions. Discovery allows lawyers to gather evidence from people who might otherwise be reluctant to provide it, including the opposing party.
Depositions in Civil Lawsuits
Depositions are a discovery tool that lawyers often use to learn what a witness knows about a case. A lawyer takes a deposition by asking questions that the witness must answer under oath. A private court reporter makes a record of the questions and answers and later prepares a written transcript of the deposition. Some depositions are also recorded on videotape.
Lawyers will usually take the depositions of opposing parties. For example, in a lawsuit involving a car accident, the injury victim’s lawyer will take the deposition of the other driver and the insurance company’s lawyer will take the deposition of the injury victim. In a lawsuit against a business where an injury occurred, the injury victim’s lawyer might take the depositions of the store manager and any employees who saw the accident or whose negligent performance of job duties may have contributed to the accident.
Lawyers take depositions for many reasons. Depositions help lawyers understand and uncover the facts of the case. Depositions also give lawyers an early opportunity to probe the weaknesses in the opposing party’s case. For example, if the opposing party denies causing the accident, careful questioning often makes it clear that the denial is not credible. When a witness gives inconsistent answers, contradicts provable facts, or claims a convenient lack of recollection, the lawyer who is questioning the witness will develop strong ammunition to use at trial.
Depositions also lock witnesses into a story. When a witness testifies in a deposition “I did not see Mr. Jones that day” and evidence at trial makes it clear that the witness and Mr. Jones were together, the witness is in a bad position. The witness will either stick with a story at trial that is obviously untrue or will change his story. When a witness changes a story, the lawyer will confront the witness with the transcript of the deposition to show that the story has changed. This is known as “impeaching” the witness. The ability to expose false testimony by impeaching a witness is one of the key benefits of taking a deposition.
Finally, depositions help lawyers evaluate a witness. How the witness performs in a deposition offers valuable information about how the witness will perform at trial. If a witness who will help the other side is credible and likeable, it might be smart to settle rather than risking a trial. If a witness who will help the other side is shifty or condescending, the other side might be willing to offer a higher settlement rather than placing a bad witness in front of a jury.
Preparing for a Deposition
Lawyers prepare their clients to testify in a deposition. That doesn’t mean that lawyers prepare answers for clients to give, but lawyers can anticipate questions a client will probably be asked, and can help them understand how the question can be answered in clear and precise language.
Lawyers try to assure that clients will not be surprised by questions so that clients can feel comfortable during the deposition. Lawyers also help clients refresh their recollections prior to a deposition so they do not need to search their memories before answering questions.
Finally, lawyers will usually give clients some pointers, such as the need to answer out loud so that a court reporter can record the answer, and to avoid guessing at answers if the client does not know or remember the answer. Working with the lawyer prior to a deposition should help ease a client’s anxiety about being questioned.
Thanks to our friends and contributors from Butler Tobin for their insight into depositions.