In New York personal injury cases, such as a Brooklyn slip and fall accident, Bronx motor vehicle accident, or a Westchester construction accident, probably the most important legal procedure in the case before trial is the deposition. In a deposition, also known as an Examination Before Trial (EBT), the parties to a lawsuit, or witnesses to an accident, are placed under oath and asked questions about the accident, the injuries suffered by the Plaintiff, and generally everything they observed on the date of the car accident, trip and fall accident, or fall from a scaffold or ladder, to use a few examples.
The deposition is absolutely critical for several reasons. First, it provides the attorneys and parties with an opportunity to assess and determine whether the witness is believable, likeable, and will make a good or poor witness at trial. This becomes tremendously important when insurance companies are deciding whether to settle the case or take it to trial. If the defense attorney reports to the insurance carrier that the plaintiff is a very credible witness, the case is more likely to settle prior to trial. The deposition transcript of the plaintiff or defendant’s testimony can also be used to devastating effect at trial. For example, if the defendant changes his or her testimony about whether the traffic light was green when he or she first saw the light in a New York car accident case, the attorney can ask him at trial: “You testified under oath at your deposition that when you first saw the light it was green; now you’re testifying that it was red when you first saw it…Were you lying then or are you lying now?”
Since depositions are such a critical part of the case, preparation is absolutely essential and we spend several hours with our clients preparing for the types of questions they will be asked, and how to testify as effectively as possible to convince the insurance companies involved that this is a case to settle and not let a jury decide the outcome. As part of this preparation, it can’t be emphasized enough that the client must be absolutely honest with the attorney when it comes to factors which could be damaging at trial, such as: prior criminal convictions, the use of alcohol or drugs at the time of the accident; previous lawsuits; a delay or gaps in medical treatment after the accident; or potentially negative witnesses, since we must always assume that the other side either knows about these facts or will find out about them before the case comes to trial.