What is a Deposition in Law or Court?
A deposition in law is a procedure during a lawsuit where you will be asked questions, and your sworn answers are recorded by a court reporter. Attorneys on each side of a case get to ask questions of the plaintiff, defendants, and witnesses on the opposite side of the case.
The person who testifies is sworn in, under oath, by a court reporter who records the questions asked by the attorneys and the answers by the person testifying. Your answers can later be used at a trial because they are sworn testimony.
Depositions are part of a phase of a lawsuit called “discovery.”
Other Names for Depositions
In New York, a deposition is also commonly called an EBT (Examination Before Trial).
There is a technical difference between a deposition and an EBT, but they are commonly used interchangeably by both plaintiff lawyers and defense lawyers.
What is the Difference Between a Deposition and an EBT?
You can ignore the technical difference between a deposition and an EBT or Examination Before Trial and call it whatever you want. Most lawyers don’t even know there is a difference.
But if you really want to know, the technical difference, in New York, between a deposition and an EBT is the following:
- If a Court Order is obtained, a deposition can be taken of a person before a lawsuit has been started, during a trial, and even after a trial (see, New York CPLR 3102(c) and (d).
- An EBT is taken during a lawsuit at the end of the discovery process, prior to placing the lawsuit on the trial calendar. An EBT is usually taken pursuant to a Court Order but can be taken without a Court Order.
Can You Have a Deposition Without a Lawsuit?
Not usually. A lawyer can request a court order to obtain a deposition prior to filing a lawsuit, but this is rarely done.
How Much Does a Deposition Cost?
A deposition in a personal injury case usually costs several hundred dollars. In New York, the cost is paid in advance by the personal injury lawyer and reimbursed with other case expenses, out of the settlement money, at the end of the case.
Where Will My Deposition Be Held?
Your deposition may be done at any of the following places:
- By video such as via Zoom
- A room at a private company designed for depositions
- A room in the courthouse
- Defense lawyer’s office
- Plaintiff’s lawyer’s office
When Will a Deposition Be Held in My Personal Injury Case?
A lawsuit for injuries may be filed immediately, but often a lawsuit doesn’t even need to be filed because the injury is worth much more money than the insurance and assets available. Anytime before filing a lawsuit, a personal injury case may be settled.
When a personal injury case doesn’t settle, a lawsuit for injuries is usually filed 6-12 months after an accident, and the case will begin to move through the court system toward trial.
Approximately 5-12 months after your lawsuit is filed (and usually 12-24 months before your trial), both you and the defendants will be required to appear at a deposition also called an EBT (Examination Before Trial).
See a timeline of a personal injury case to see the progression of a personal injury case and the different times a personal injury case may settle.
Why Do Personal Injury Depositions Get Postponed?
There are three reasons that personal injury depositions are postponed or adjourned (adjourned means postponed to a future date).
- The deposition was scheduled but was not yet ordered by the court.
- Even after being ordered by the court, personal injury depositions are frequently adjourned or postponed by the defense insurance attorney to delay the case.
- A personal injury deposition may be adjourned or postponed by the defense insurance attorney because your personal injury lawyer hasn’t yet provided all the medical records and other documentation needed by the defense insurance attorney.
How Many Times Can a Personal Injury Deposition Keep Getting Postponed?
Personal injury depositions almost always get postponed. Unfortunately, New York State Supreme Court Judges routinely allow defense insurance attorneys to postpone or adjourned personal injury depositions too many times.
If your personal injury lawyer allows it to continue, depositions in your case could be postponed or adjourned for a couple of years!
What Happens at My Deposition?
The plaintiff’s deposition is usually held in the morning, and the defendant’s deposition is usually held in the afternoon or the next day if your deposition is expected to take more than a few hours.
The lawyer for the people you are suing will ask you many questions, usually lasting approximately 2-4 hours.
You will swear to tell the truth before a court reporter. The question and your answers will be recorded by the court reporter, transcribed, and printed. Within a month after your testimony, you will later be given a copy of your deposition transcript to review, make any allowed changes, and sign.
Your answers can be read back at the trial and used to show or imply that you are lying. Even when you are not lying, but answer the wrong way, it’s easy for the defense attorney to make it look like you are!
The answers you give at your deposition are obviously an important part of your case. The lawyer for the defense is well-trained to try to trap you into giving answers they can use against you at trial.
What is the Most Important Thing to Know About My Deposition?
Your behavior at your deposition is even more important than the answers you give and is one of the most important parts of your case.
At the conclusion of your deposition, the defense lawyer will write a report to submit to the insurance company. The defense lawyer will write a lot about what you look like, how you behave, and whether you are likely to be believed and liked by a jury.
Even if your case is settled before trial, how you do at your deposition will greatly affect your settlement. What the insurance company thinks about you will determine if you can settle your case for what it is worth.
If you don’t do well at your deposition, you can ruin your case!
What Should I Never Do at My Deposition?
- Never argue, be belligerent, or be obnoxious. Act like you are at a job interview.
- Never interrupt the defense lawyer. Always listen to the entire question before attempting to answer.
- Never give explanations, tell a story, or speak for long periods. You should give short answers.
- Never give an answer without understanding the question. If you don’t know what a word or phrase in a question is, just ask what it means.
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Will My Lawyer Be at My Deposition?
Yes, your lawyer will be at your deposition and will sit next to you. You should know that there is not much your lawyer can do.
Your lawyer will occasionally object to a question and will most of the time tell you to go ahead and answer the question. Occasionally your lawyer will object to a question and tell you not to answer the question.
Why Will My Lawyer Object to a Question and Tell Me to Answer the Question?
Your lawyer will occasionally object to a question to preserve the right to appeal or have some of your testimony excluded.
To avoid having lawyers call judges all day during depositions to get a ruling as to whether a question can be asked, the procedure is for the lawyer to object and allow the question to be asked. Rulings about what can be excluded from the trial can be easily made by the judge at the time of the trial.
Who Will Be at My Deposition?
- You and your lawyer.
- At least one defense lawyer.
- A court reporter who transcribes everything that is said.
If there are additional defendants, there may also be additional defense lawyers for those defendants. Sometimes, there may be another plaintiff’s lawyer if there is another injured plaintiff.
A judge will not be at your deposition.
Can I Be at the Defendant’s Deposition?
Yes, but it’s not a good idea. We never have our client sit at the defendant’s deposition.
Will the Defendant Be at My Deposition?
No. For the same reason, the defendants are never at our client’s deposition.
How Should I Dress at My Deposition?
You should dress nicely as if you were appearing in court. If you have a suit, that’s great but not necessary.
What to Wear at Your Deposition
A long-sleeved dress shirt, long pants/slacks, dress shoes, and a belt is the best choice. Do not dress too casually.
What Not Wear at Your Deposition
What You Should Never Wear at Your Deposition
- Sandals or
- Anything on your head like a bandana. Religious apparel is fine.
What Are Some Deposition Questions?
You will be asked:
- How the accident happened;
- What injuries you are claiming to have because of the accident;
- If you had any prior similar injuries or claims and the dates;
- The specialties and names of the doctors you saw and the dates;
- About the treatment you received and the dates;
- How your injuries have affected your life at home and at work;
- About your work history; and
- Almost any other questions the defense attorney wants to ask.
Best Deposition Answers & How to Avoid Being Trapped Into Answering a Trick Question
A common trick question is to ask for a numerical answer such as one involving time, distance, or speed. When you don’t know the answer, the defense attorney will follow up with questions designed to force you to answer.
Sample Deposition Questions That Can Trick You
- How many feet from the intersection were you when you first saw the defendant’s car?
- How many seconds passed from the time you first saw the defendant’s car and the impact?
- When was the first time you went to see a doctor after you went to the hospital?
You should never answer questions about time, distance, or speed concerning your accident.
How to Answer a Trick Deposition Question
Q: How many seconds passed from the time you first saw the defendant’s car and the impact? A: I do not know.
Q: Was it more than 30 seconds?
A: I really don’t know, but if you would like, I can make a guess.
But never make a guess! Neither your lawyer, nor the defense lawyer will let you guess, so when you offer to make a guess, the defense lawyer will immediately say no, I do not want you to make a guess, and will move on to the next question.
Answers to Deposition Questions About Medical Treatment
Q: When did you first complain to a doctor about your TMJ pain?
A: I do not remember, but I’m sure it is in my medical records.
Q: Do you remember if you complained about TMJ pain when you saw Dr. X for your neck and back pain?
A: I do not remember, but I am sure it is in my medical records. If you do not have a copy, I will be happy to provide you with an authorization to obtain a copy.
Can I Plead the Fifth in a Civil Case Deposition?
The Fifth Amendment is a privilege against self-incrimination and allows a person to refuse to answer a question to which an answer may incriminate the person answering.
Who Can Plead the Fifth at a Deposition?
- A person who is under criminal investigation
- A person who is not under criminal investigation but who may be subject to arrest if forced to answer the question
In a civil case like a personal injury trial, a jury may be instructed by the judge that they are entitled to draw an adverse inference against the person who takes the Fifth.
This is why someone injured in an accident should probably not claim a loss of income from self-employment. People who are self-employed often take some liberties with their income tax returns.
If you claim loss of income from self-employment, the insurance defense lawyer will be entitled to a copy of your tax returns going back two years before your accident. The defense lawyer will give those tax returns to a forensic account to look for anything inaccurate, improper, or illegal. There is a good chance you will find yourself having to take the Fifth at your deposition and/or trial.
This research article by a white-collar criminal law firm discusses questions relating to the use of the Fifth Amendment in civil litigation.
How Will I Be Prepared for My Deposition?
The common method many lawyers used to prepare you for your deposition is to meet with you 60-30 minutes before your deposition! This is almost always disastrous for you.
Some lawyers will have their clients come to their office a day or two before the deposition to prepare. Some will spend several hours preparing you, but some still only spend an hour or two. Even if a lawyer prepares you for three or four hours, it won’t help much.
The reason can be seen in the OSHA US Dept. of Labor chart “Percent Effective Presentations with Visual Aids” below, which shows that when you listen to instructions, there is a 10% effectiveness when only listening. Obviously, this would be even less when you’re listening to legal instructions familiar to lawyers.
Because clients almost always substantially harm their case when testifying at a deposition, we looked for a way to change that.
You will watch our video showing you how an accident occurred and many details of the deposition. You will see how to behave at your deposition, how to answer questions in a way that will damage your case, and how to answer the same questions in a way that will substantially improve the value of your case.
As can be seen in the above chart, the effectiveness of the presentation increases from 10% to approximately 70% when both listening and seeing. With our video, your effectiveness will be closer to 90-100% because, in addition to just listening and seeing, you will be engaged in the presentation.
Since preparing our clients this way, we have experienced the best deposition testimony we have ever seen! Our clients have testified as well as if they had had a lawyer.
Sit on a comfortable couch while watching our deposition video on a large-screen TV, and we review the facts of your case with you
Justin Bieber’s Deposition Testimony is an Example of How NOT to Testify at a Deposition!
Justin Bieber sets the all-time best example of how not to act at a deposition in this video (below). The deposition was conducted by the attorney for a photographer who was injured.
Even Justin’s lawyer handles the deposition poorly. In fact, I can’t believe how bad his lawyer is. He acts like Justin’s yes-man rather than his lawyer.
Justin’s behavior and answers show that he wasn’t prepared properly, if at all. His testimony looks like he received the too-often typical 20-60 minute prep for his deposition. Don’t let this happen to you! And if you’re a celebrity, read about our confidentiality for celebrities.
Note the following colossal blunders Justin Bieber made during this 6:24 minute video (TMZ edited clips out of time order).
If anyone acts like this at a deposition, they can kill their case, but if you’re a celebrity, you can hurt your career at the same time, especially if your case becomes a disaster. If you’re a celebrity injured in an accident in New York, take a look at how we can protect celebrity confidentiality.
What Justin Bieber Did Wrong at His Deposition
- He sways back and forth in his chair indicating nervousness and arrogance simultaneously.
- Is obnoxious with statements like, “I don’t have to listen to anything you have to say.”
- Obviously lies many times, like saying, “I don’t know if I’ve been to Australia.”
- Leans back, fakes being tired, and appears uninterested.
- Shakes his head constantly.
- Makes faces and smiles inappropriately.
- Is argumentative.
- Comments on the questions.
- Gives answers before questions are asked.
- Asks his attorney questions.
- Objected to a question.
- Refused to answer questions, often rudely.
- Doesn’t look at the lawyer asking questions.
- Instructs the plaintiff’s attorney and says “I think my lawyer’s asking a question.”
- Makes fun of questions.
- Ruins his best answer “I don’t recall” by holding up his hands and smiling, making the answer appear to be a lie.
- Winks at the video camera and also raises his eyebrow.
- Ridicules the plaintiff’s attorney when the attorney doesn’t seem to know the difference between video and film.
- Instructs the plaintiff’s attorney “Don’t ask me about that again.”
- Waves his finger at the plaintiff’s attorney.
- Calls the plaintiff’s attorney Katie Couric.
- Criticizes the plaintiff’s attorney.
- Denies knowing Raymond Usher IV but then admits knowing Usher stating that Usher sounds familiar obviously lying because he then testified that he knows Usher very well.
Watch Justin Bieber’s Deposition Testimony to Learn How NOT to Testify at a Deposition!
What Happens After a Deposition in a Personal Injury Case?
After your deposition, the court reporter will send a written transcript of your testimony to the defense attorney to review. The defense attorney will then send two copies to your lawyer. Your lawyer will also send the transcript to you to review, make minor changes to your answers, and sign.
Your Physical Exams by Doctors for the Defense
We’ll prepare you like a lawyer for your deposition, but we’re not done. After your deposition, you will have to appear at one or more physical exams by the defense doctors.
Most lawyers let their clients go to these exams alone! Not us. We go with you and bring our own doctor! Of course, you’ll be very well prepared.
The Insurance Company May Spy on You
The defense attorney will discuss with the insurance company whether they want to use a private investigator to get surveillance video of you. The most common time that you could be spied upon by a private investigator to get surveillance video of you is after your deposition.
See Do Insurance Companies Use Private Investigators to Spy on You With Video Surveillance to find out if your case is one where the insurance company is likely to use a private investigator to spy on you with video surveillance and what you should know.
How Long After My Deposition Will My Case Settle?
If the insurance company makes a settlement offer after your deposition to settle your personal injury case, it will likely be one to three months after your deposition. The insurance company will need time to get a medical exam by the defense doctor, receive, and read the defense doctor’s report.
If your personal injury case doesn’t settle after your deposition, your case may still settle later. See the timeline of a personal injury case to see the different times a personal injury case may settle.
If you want to be well-prepared for your deposition, call the 1-800-HURT-911® Personal Injury Dream Team™!
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Philip L. Franckel, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association.
Robert Plevy, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York. Rob began his legal career in 1993 as an Assistant Corporation Counsel defending The City of New York against personal injury lawsuits.