DEPOSITIONS, EXPERTS AND MOTION PRACTICE
Welcome back to the fifth and final Part of this crash course on motor vehicle accident cases. The fourth segment (Link to 4th Part) discussed the preliminary stages of a lawsuit from the timely filing of a Complaint to the exchange of discovery materials and a Bill of Particulars. This final segment will explore the importance of deposition testimony, the use of experts, and motion practice.
At this stage in a car accident case, we have gathered and exchanged the medical records related to the injuries and the documents, statements, and photographs which support your theory of liability. Now it is time to take the depositions of the injured person, the plaintiff, and the individual responsible for causing the accident and injury, the defendant. Both are important for distinct reasons. For the negligent defendant, the deposition is the chance to explore the defenses and arguments for why he/she should not be held accountable for the accident. Even if the defendant is going to deny responsibility for the accident, it is important to conduct a thorough deposition and lock-in the defendant’s testimony even if it is unfavorable to the plaintiff’s theory of liability. A deposition is testimony given after swearing an oath to tell only the truth. A defendant will not be able to change or contradict this testimony at trial without causing irreparable damage to the defendant’s credibility. It is always better to know what the defendant will say in his/her defense at trial. For example, if a car accident happened on a snowy day, a defendant may argue at trial that the weather conditions were unexpected and created an emergency which he/she could not have anticipated. This affirmative defense can be defeated with a thorough deposition transcript. The defendant should have been asked when he/she became aware of the weather conditions and whether he/she was aware that roads become slippery in winter weather conditions. The answers to these questions may demonstrate that the defendant knew that driving in winter weather conditions increased the likelihood of uncontrolled slipping and sliding.
For the injured plaintiff, the deposition is the opportunity to provide meaningful context to the injuries. Medical records are factual and objective. They give the dates, provider names, diagnoses, and treatment recommendations. This information is necessary and valuable to demonstrate what the injuries are and what level of care is necessary. Some injuries require conservative treatments like physical therapy or chiropractic care. More serious injuries may require pain management treatments or surgical intervention. But the records lack qualitative and subjective aspects.
A personal injury lawsuit is primarily about compensating the injured plaintiff for the pain and suffering caused by the negligence of the defendant. The deposition allows the injured plaintiff to describe the experience of living with and recovering from the injuries. It is where the plaintiff explains precisely how these injuries have caused pain and suffering. The deposition should be used to explore how the injuries have affected the plaintiff’s everyday life, from work, to recreation, to family life. For instance, a knee injury may have a more significant impact on a marathon runner than someone who prefers not to exercise. A lower back injury may affect a manual laborer more acutely than desk jockey. A good personal injury attorney will work with the injured plaintiff to cover the questions that will be asked and allow the plaintiff to ponder the answers before the deposition.
The injured plaintiff should be able to answer two important questions that are always asked:
(1) Are there things you used to do before the accident which you can no longer do at all?
(2) Are there things you used to do which are now more difficult or cause pain while doing them?
The answers demonstrate how the plaintiff’s life has been permanently changed by the injuries. Surprisingly, many plaintiffs have not considered these questions and will not be able to give a complete answer when asked for the first time. Therefore, it is important to have the plaintiff consider these questions before the deposition.
Once the depositions have been completed, it is time to hire an expert to perform a comprehensive evaluation of the injuries. This final piece is important because the expert can offer an opinion on the severity and permanency of the injuries, whether any further medical treatment is required, and whether the injuries were directly caused by the motor vehicle accident. The expert’s opinion is crucial to the car accident case. After discovery has been completed, a defendant will often ask the court to dismiss a car accident case because the injuries do not meet the definition of a “serious injury” which we discussed in Part II: The Investigation. While the medical records and the plaintiff’s deposition testimony help to demonstrate the severity of the injury, the expert’s opinion that the injuries are serious or permanent is vital when opposing the defendant’s request to have the case dismissed. A plaintiff must defeat the defendant’s request to proceed to the trial. Similarly, a plaintiff may ask the court to find the defendant at fault for causing the accident before trial. These requests seeking the early determination of certain issues are called motions for summary judgment and typically occur at the end of the discovery phase.
I hope you have enjoyed this exploration of a car accident case and its progression. As always, if you have any questions or would like more information about this topic, please email me or join me on April 26, 2023 for my webinar. I will address it during the webinar at the end of this series.
If you missed any of the prior segments, you can view them by clicking here: (Intro; Part 1; Part 2; Part 3; Part 4).
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This is not intended to be legal advise. You should contact your attorney to discuss your specific situation.
Andrew Boughrum, Esq., is an Associate at the firm and practicing general litigation and personal injury.
He can be reached at 845-764-9656 and by email.