Three Things to Know about Depositions in Injury Cases In Massachusetts

Most personal injury claims in Massachusetts settle before litigation.  Cases that do not settle require a  lawsuit – either because the statute of limitations (or time for filing a lawsuit) is about to expire, or because the parties are unable to reach a settlement.  As part of the litigation process, you can expect to be deposed by the opposing party’s attorney.  

One question that our clients often ask, is how soon after the deposition is a case settled?

What is a Deposition?

If you file a lawsuit, the opposing party has a right to have you respond to questions under oath.  This used to be at the insurance defense trial lawyer’s office, but now is usually over zoom.  The court reporter takes down the questions, your responses, and any objections raised by the parties.  The court reporter’s work is memorialized in a transcript.  

Besides yourself as the plaintiff, depositions can be taken of the defendant, any witnesses, of medical providers, friends and family members, and any experts involved in the case.  Before your own deposition is taken in a typical personal injury case the opposing attorney will generally serve written questions to you through your personal injury attorney, called interrogatories, that asks you for biographical information, employment, education, and about the facts of the accident. The insurance attorney will also formally request documents, such as medical records and bills, income information, and photographs. Your attorney or paralegal will draft your responses to these interrogatories and document request, review with you, and have them prepared in the proper form for service on the opposing attorney.  You will be required to sign, under the pains and penalties of perjury.

After you respond to the interrogatories, your attorney will advise you that the opposing party’s attorney has asked to depose you on a certain date.  It is essential that you and your attorney review the questions to be asked and your responses.  Since you will be giving verbal responses under oath, it is imperative that your answers be truthful and that you do not embellish the facts of the accident, or anything about your background, your injuries and your medical care. 

Depositions are taken so as to give the defendant’s attorney a sense of whether the deponent who can be yourself, a witness or any other deponent, is trustworthy or credible and how a jury might perceive the individual.  For anyone being deposed, the attorney asking the questions wants to nail down that person’s testimony so that the case can be accurately evaluated and a possible settlement offer or demand can be later made.  Since a record of the deponent’s testimony is made that is under oath, should the deponent’s testimony at trial deviate from that given at the deposition, the opposing attorney can cite the prior testimony to discredit the witness. 

Your attorney will be present at the deposition and can object to certain questions or how they are asked. However, you will have to respond to most of the questions, and, since the standard is whether the question may lead to discoverable evidence, you will be required to answer many, many questions, even if they appear irrelevant. This includes questions about your background, family, prior jobs, and if you were ever convicted of a crime.  This does not mean that all of these questions will be permitted at trial – there is a far different standard for admissible questions at trial.  The insurance attorney wants your own version of the accident, the extent and seriousness of your injuries, and how your injuries have changed or diminished your enjoyment of life.  Often, however, the insurance attorney is on a fishing expedition for things that s/he can relate to the case that could not have been know by reviewing your attorney’s demand and the medical records.  

Your responses must also be consistent with any statements you gave in the past, especially those in your interrogatory responses that you gave under oath. This includes disclosing any past claims or convictions, or prior injuries or medical conditions that are similar to the injuries you claim were caused in this accident. 

Any inconsistency or non-disclosure will be seized upon by the opposing attorney as evidence of your non-credibility and who will argue that your version of events are not to be believed, nor the nature and extent of your alleged injuries.  This can have a dramatic impact on your ability to settle for an amount that will adequately compensate you for your injuries and damages. 

Your demeanor is also important.  If you are argumentative or evasive, the opposing attorney will feel that your presence and testimony in court will be to his client’s benefit and that a low settlement offer is justified.  Accordingly, you need to be polite, only answer the questions being asked without volunteering additional facts and ask the attorney to re-phrase a question if it is confusing or vague to you. 

How Soon After the Deposition is a Case Settled in Massachusetts?

If the deposition goes well, you may expect the opposing attorney to ask for a settlement demand, or a renewed demand.  At this point, the defendant’s attorney may believe that all the issues are no longer in real dispute and that his client, or his client’s insurance claim representative who has control of the money, has valued the case and given its attorney a range for settlement. 

Many personal injury cases settle soon after your deposition.  In other cases, the insurance company agrees to a mediation after your deposition.  This means, that both sides need a third party to assist in resolving the claim.  Mediation is generally much quicker than trial – and gives our injured clients closure and the ability to play a definitive role in the process.  

In more complex cases where economic and/or medical expenses are substantial, there will generally be more depositions of forensic experts, medical specialists, and others that will prolong the litigation process.  But in more typical cases, your own deposition is the most important event that can determine how much compensation the opposing party is willing to offer. 

Retain the Law Office of Burns and Jain 

In any personal injury case, our attorneys fight hard to settle your case without resorting to litigation. But if we must file your claim, we will prepare you for the litigation process that includes preparing you for your deposition that can often soon lead to a settlement. Call our office at (617) 227-7423 for a free consultation about your injury claim.