Guide · Injury · Illinois

Preparing for a Deposition in an Illinois Injury Case

Your deposition testimony can be used for the rest of the case. What the Illinois rules allow, what the defense is looking for, and how to prepare.

By Lincoln Square Law · 7-minute read

For most injured people, the deposition is the first time they answer questions under oath. It usually happens in a conference room, or by video, months after the injury. There is no judge or jury, and the defense lawyer is often polite. That setting makes it easy to underestimate. A plaintiff’s deposition is one of the most important events in an injury case, because the transcript will be read by the adjuster, the defense lawyer, the mediator, and possibly the jury, and the answers given that day can be used for the rest of the case. This guide explains what a deposition is, what the Illinois rules allow, and how to prepare.

What a deposition is, and why it matters

A deposition is testimony given under oath before a court reporter, outside the courtroom. Illinois recognizes two kinds. A discovery deposition is taken to learn what a witness knows. An evidence deposition is taken to preserve testimony for use at trial, and it is conducted as if the witness were testifying in court (Ill. S. Ct. R. 202 and 206).

The plaintiff’s deposition is almost always a discovery deposition taken by the defense. Its uses are broad. A party’s discovery deposition may be used against that party for any purpose, including as an admission, and any witness’s deposition may be used to impeach later testimony that is inconsistent with it (Ill. S. Ct. R. 212(a)). In practical terms, if a plaintiff says one thing at the deposition and something different at trial, the jury may hear both.

What the defense is trying to learn

A defense lawyer at a plaintiff’s deposition usually has four goals: to learn the plaintiff’s version of how the injury happened, to identify facts that shift fault to the plaintiff, to explore prior injuries and medical history that may offer another explanation, and to evaluate how the plaintiff will come across to a jury. Illinois’ modified comparative fault rule bars recovery by a plaintiff found more than 50% at fault (735 ILCS 5/2-1116), so questions about speed, distraction, footwear, lighting, and attention are not casual. They are aimed at the percentage.

The rules that shape the day

• Time. A discovery deposition in Illinois is generally limited to three hours, regardless of the number of parties, unless all parties agree or the court orders otherwise for good cause (Ill. S. Ct. R. 206).
• Objections. Your lawyer may object, but objections must be concise and state the legal basis. Many objections are made to preserve an issue, and you will usually still answer the question unless your lawyer instructs you not to, for example to protect a privilege.
• Waiver. Objections to the form of a question, and other errors that could be corrected on the spot, are generally waived if not made during the deposition (Ill. S. Ct. R. 211). That is why your lawyer may object to a question that seems harmless.
• Review and signature. Unless signature is waived, the witness is given the opportunity to review the transcript and make corrections before signing (Ill. S. Ct. R. 207(a)). Corrections are not a chance to change testimony. Substantive changes are noted and can be commented on at trial.

Preparing: the documents

• Review your own records. Read your answers to interrogatories, your medical records, and any recorded statement you gave. Inconsistencies are the defense’s first target.
• Know your medical history. Be ready to discuss prior injuries, accidents, and treatment for the same parts of the body. The defense will already have many of these records.
• Know your work history. Be prepared to describe your jobs, schedules, pay, and the work you missed.
• Review photographs and the scene. Refresh your memory of the location, the vehicles, and the conditions, but do not guess about distances and speeds you did not measure.
• Tell your lawyer anything you are worried about. Surprises are handled far better in a preparation session than in the deposition.

Preparing: how to answer

• Listen to the whole question. Wait until the question is finished, then pause before answering. The pause gives your lawyer time to object and gives you time to think.
• Answer only the question asked. If the question calls for a yes or no, answer yes or no. Do not volunteer information the question did not ask for.
• Do not guess. “I don’t know” and “I don’t remember” are complete, honest answers when true. An estimate should be labeled as an estimate.
• Ask for clarity. If a question is confusing or contains a word you do not understand, say so. A transcript does not show a puzzled face.
• Correct mistakes when you notice them. If you realize an earlier answer was wrong, say so on the record.
• Be careful with documents. If you are shown a document, read it before answering questions about it.
• Describe your injuries completely. Explain what you could do before the injury and what you cannot do now, with concrete examples. The deposition is also where the defense learns what the injury has cost you.
• Stay calm and courteous. How you answer matters to the people evaluating the case.

Common traps

• The summary question. “So you’re doing much better now?” invites a yes that understates a lasting injury. Answer accurately, including what is better and what is not.
• The absolute word. “Always” and “never” are rarely true. Avoid them unless they are.
• Silence. A lawyer may wait after your answer to see if you will fill the silence. You do not need to.
• The compound question. A question that combines two facts may be true in one part and false in the other. Answer each part separately, or ask for the question to be broken up.
• Questions about conversations with your lawyer. Communications with your lawyer are privileged. Your lawyer will object if a question asks about them.
• Social media. Expect questions about posts, photographs, and activities. Answer honestly, and do not delete anything before or after the deposition.

After the deposition

Review the transcript carefully when it arrives and report any transcription errors to your lawyer. Your testimony becomes part of how the case is valued. A clear, consistent, and credible deposition often moves an insurer’s view of the case more than any document, because it shows how the plaintiff will come across at trial.

Other depositions in your case

Your deposition is usually not the only one. Your lawyer will depose the defendant and key witnesses to lock in their accounts, and the defense may depose family members, coworkers, or friends who can describe how your life changed. Your treating physicians are often deposed as well. In Illinois, a physician’s testimony is frequently taken as an evidence deposition, often on video, and then presented at trial, because doctors’ schedules rarely allow them to appear in court (Ill. S. Ct. R. 212(b)). The party that requests a physician’s deposition generally pays the physician a reasonable fee for the time spent testifying (Ill. S. Ct. R. 204(c)). Your lawyer will explain which of these depositions you may attend and how their testimony fits with yours.

Remote depositions

Many depositions now take place by video. The same rules and the same oath apply. Choose a quiet, private room with good lighting, a stable connection, and nothing on the screen or desk except what your lawyer has approved. Do not communicate with anyone during the testimony, and keep your camera on.

A deposition is not a test of memory or a debate with the other side’s lawyer. It is an opportunity to give truthful, careful testimony about what happened and how the injury has changed your life. Preparation is what turns that opportunity into evidence.