EveryBody's Guide to the Law

viewed and accident reports and medical records reviewed. If there is any indication that a
defective condition in either car contributed to the accident or made your injuries worse than
they would have been otherwise, and your injuries justify the expense, various experts in automobile
design or manufacture may be retained to study the problem for a possible lawsuit
against the car’s manufacturer. If you have been injured seriously, you will be evaluated by
medical specialists to determine the extent and permanence of your injuries and the cost of
future medical care to treat you.
The formal discovery process also gives your lawyer the chance to find out what evidence
the other side will be presenting at the trial. There are several ways of doing this. One is
through “written interrogatories,” a list of questions asking the defendant, under oath, for
information about the case: How fast were you driving at the time you struck the plaintiff’s
car? Where were you coming from? Where were you going? Did you have anything to eat that
day? Did you have anything to drink that day? Did you take any drugs or medications in the
twenty-four hours preceding the collision? Who was in the car with you? What are the names
and addresses of the witnesses you plan to call at trial?
The most important—and enlightening—part of discovery in many cases is the “deposition”
(in some parts of the country, the “examination before trial,” or simply “EBT”). A deposition
is testimony taken outside of court, where you are sworn in and give your testimony
under oath, just as you are when you testify in court. You can be held guilty of the crime of
perjury if you lie at a deposition.
Your lawyer will “depose” the defendant, and the defendant’s lawyer will depose you. If
either side will be calling other witnesses to testify, the opposing lawyer may want to depose
them as well. The deposition usually is held in the office of the lawyer taking the deposition,
with lawyers for both sides present. The deposition proceedings are taken down by a court
reporter and can be used at trial. Some depositions are videotaped, particularly when there is
a strong chance that the witness will be unable to testify at the trial because of, say, age, illness,
or a move out of state.
After the court reporter has transcribed your deposition testimony, you are given the
chance to review it to see if your answers were recorded accurately. You can make changes on
the record but may be asked at trial to explain those changes: It’s one thing to explain correcting
a mistake that the court reporter made; it’s quite another to explain why you changed your
answer from “yes” to “no.” If you say one thing at the deposition but another at the trial, your
truthfulness will be questioned at trial by the opposing lawyer and the jury during its deliberations.
Unless you can explain the discrepancy to the satisfaction of the jury, the jury may find
it hard to believe anything you say. Because of this, you should answer deposition questions
with as much care and thought as if you were testifying before a jury at trial.
The discovery stage of a trial is crucial in preventing either side from being unduly surprised
by the other at trial. It is designed to provide a fair and faster trial. Unfortunately, some lawyers
have gotten into the habit of using the discovery process as a means of harassing the other side
528 Everybody’s Guide to the Law