Do Personal Injury Cases Settle After Deposition in Massachusetts?


Although many personal injury claims in Massachusetts settle before a lawsuit is filed, many times cases have to be filed in court by your personal injury attorney if settlement at this stage is not possible.  Also, sometimes it’s premature to attempt to settle and you, or your attorney, must  file your claim before the 3-year statute of limitations for most injury cases expires.

Once a case is filed and  the summons and complaint are served on the opposing party, the litigation process begins.  At this stage, the parties enter into the discovery phase.  Discovery allows all parties to request and exchange the evidence that the other party has to support its version of events or defenses, and to question the other party and the witnesses it plans to present at trial. 

The deposition is often the most essential part of discovery, and the most critical tool for preparing for the testimony of the opponent at trial.  Persons who can be deposed in a personal injury case include:

  • Plaintiff
  • Defendant
  • Police who were at the scene and conducted an investigation
  • Emergency medical personnel
  • Treating physician
  • Medical specialists/experts of either party
  • Forensic economists
  • Physical therapists
  • Eyewitnesses to the accident
  • Accident reconstruction experts
  • Family members and friends of the plaintiff

Not all of these persons are deposed in a personal injury case since their observations or the information they possess may be minimal or inconsequential.  But once all essential depositions are completed, the parties often explore settlement. 

What is the Purpose of a Deposition in a Personal Injury Case?

Usually in a personal injury case, the defendant’s attorney will want to depose the plaintiff even if the attorney has a good idea of how the accident occurred and the claimed injuries.  The attorney will want to observe the plaintiff’s demeanor and how s/he will react under questioning since a jury will be carefully scrutinizing the plaintiff for truthfulness and sympathy. 

In a deposition, nearly everything about you can be explored.  Some questions may be too extreme, nonsensical, totally irrelevant to the issues, but it is up to your attorney to object.  Often, the insurance defense attorneys explore inconsequential avenues – either to annoy, to bill time, or because they have information about a related accident or injury.  Many times attorneys get into long and sometimes heated arguments about the questions but this is only the concern of the lawyers. 

A deposition can compel an uncooperative witness to give testimony when subpoenaed to appear at a certain time and place to give testimony under oath.  A failure to appear can result in serious consequences.  Should the recalcitrant witness refuse to answer questions, a judge can compel the witness to testify or be held in contempt. 

Depositions also serve the purpose of pinning down witnesses, physicians, and experts as to their observations and opinions.  Opposing experts and attorneys will want to know what to expect at trial and not be surprised by testimony or evidence. 

By knowing ahead of trial through depositions if there remains issues of liability, whether the nature and extent of the plaintiff’s injuries are clear and established, what the defenses are and how credible they are, and if your damages are supported by admissible and reliable evidence, both parties can get a clear idea of how much your case is worth. At this point, serious settlement negotiations can begin, and cases often settle after a critical deposition.  

Best Practices to Handle At Your Deposition

The first thing to do to prepare for your deposition is to review your interrogatory responses since your answers to similar questions at your deposition must be consistent, or explained.  Your own personal injury attorney has an obligation to thoroughly prepare for what will be asked of you and what your responses will be.  We recommend that you follow these suggestions at your deposition:

  • Prepare, prepare, prepare – with your attorney before the deposition
  • Remain calm and composed
  • Dress well and be well-groomed
  • Do not argue with the insurance defense attorney
  • Only answer the question asked and do not volunteer additional facts until asked
  • Do not guess but the attorney is entitled to your best estimate if you did observe an event
  • You can respond that you do not recall or can only guess at certain questions
  • Ask for clarification if you do not understand a question 
  • Follow your attorney’s instruction if he/she advises you to not answer a particular question

Generally, the attorney asking you questions will want to thoroughly question your background, education, employment history, marital and family history.  Sit back and relax because this is their job, and your obligation to answer.  Second, you can expect detailed questions about the accident including what you did that day leading up to the incident, the time it occurred, all actions you took in the moments leading up to the accident, where your attention was focused, how fast you were going if a car accident, and others relevant to the type of accident.  Questions about your medical history, injuries, physicians, care, expenses, activities you can no longer perform, the pain you experienced, and others will be just as detailed and exhaustive. 

Do not embellish or exaggerate your injuries or pain.  If you fail to disclose a prior lawsuit or claim if asked or lie about a past conviction or injuries, this can seriously jeopardize your chance of obtaining a reasonable offer of settlement and can bite you when cross examined at trial.  Having an experienced personal injury attorney preparing you is critical.  

Retain a Personal Injury Attorney from Burns and Jain 

Retain an attorney in a personal injury claim who has litigation and trial experience like the attorneys at Burns and Jain.  Our attorneys have an extensive and successful litigation practice and can adequately prepare you for a deposition should your case go into litigation as well as knowing how to question other relevant parties in your case. Call us at (617) 227-7423 for a free consultation about your injury claim.