The letter says your deposition has been scheduled, and suddenly the lawsuit feels real. A sworn statement is not a trap, and it is not a trial. It is a recorded question-and-answer session that New York’s disclosure rules build into almost every personal injury case, and the people who come through it well are the ones who learned the rules before they walked in, with the help of a Garden City personal injury attorney. Here is what actually happens, who is in the room, what your attorney is permitted to do, and how the transcript follows the case afterward.
Two Sworn Statements, Two Different Rule Books
The phrase “statement under oath” covers two very different events in a New York injury claim, and confusing them causes real harm.
The first is an examination under oath demanded by an insurance company. New York requires owner’s liability policies that meet the state’s minimum coverage requirements to carry a mandatory personal injury protection endorsement. Under its conditions, upon request by the company, the eligible injured person shall “as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same.” That duty comes from the insurance contract, not from a court, and it can arise long before anyone files a lawsuit.
The second is a deposition, often called an examination before trial in New York practice. It normally happens after a lawsuit is filed, and it is one of the discovery devices the Civil Practice Law and Rules make available to every party. Before an action is commenced, it may be obtained only by court order. The rest of this article deals with the deposition, because that is the sworn statement most injured people in Nassau County and Queens are asked to give, whether the case began with a car crash or a fall.
Who Sits in the Room, and Where It Happens
Generally, a deposition looks nothing like a courtroom. There is no judge and no jury, and it usually takes place in a conference room at a law office. New York’s rules fix who administers the oath and where you appear.
The Officer Taking the Deposition
In practice, a court reporter authorized to administer oaths puts you under oath and records the testimony, personally or through someone working under that officer’s direction. An attorney for a party or a prospective party, an employee of that attorney, and anyone whose interest or family relationship would disqualify them from jury service may not serve in this role.
Attorneys for the Parties
The attorney for the party who noticed the deposition asks the questions. Your attorney defends the deposition and, when an adverse party is doing the questioning, may examine you afterward.
The Person Being Deposed (the Witness)
A deposition is not a closed proceeding. A non-party witness may bring counsel who can object on that witness’s behalf, and an interpreter may be present. If someone’s presence is a problem, the remedy is a protective order, which the court may make on motion of any party, on motion of the person the discovery is sought from or about, or on the court’s initiative.
The law also fixes where you have to appear. For a deposition taken within New York on notice, a party is examined in the county where that person lives, where that person keeps an office for the regular transaction of business in person, or where the case is pending. For this purpose, all five New York City counties count as a single place. The party seeking the deposition must give each party 20 days’ written notice stating the time and the place, unless the court orders otherwise. If you do not understand English, the examining party must provide a translation of all questions and answers at that party’s expense.
How the Questioning Actually Works
The officer swears you in, and from that point examination and cross-examination proceed as they would at a trial in open court. That comparison carries a built-in protection. When an adverse party takes your deposition, your attorney may cross-examine you afterward, and that questioning is not limited to the subjects the other side raised.
Objections work differently than television suggests. When one is made, the officer notes it, you answer anyway, and the deposition proceeds subject to the objection and to a person’s right to apply for a protective order. New York also narrows which objections may be made at all. No objection is permitted at a deposition except the ones that would be waived if nobody interposed them, such as a defect in the form of a question. Objections to whether testimony is admissible at trial are generally preserved for the judge.
What They Will Actually Ask You
The scope of the questioning follows the scope of disclosure. New York requires full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, so the questions reach whatever bears on liability or damages. Privileged matter is different. Upon objection by a person entitled to assert the privilege, privileged matter is not obtainable, and the work product of an attorney is not obtainable at all. Inside those boundaries, defense counsel usually moves through the same territory in roughly the same order.
- Background questions: Your name, address, education, work history, and who lives with you, which sets up the later questions about lost income.
- The event itself: Where you were going, what you saw, speeds and distances, the weather, and what was said at the scene.
- The immediate aftermath: Whether an ambulance came, where you were treated first, and what you told the providers who saw you.
- Injuries and treatment: Each provider, each test, each procedure, and where your symptoms stand today.
- Prior medical history: Earlier accidents, earlier claims, and past treatment to the same part of your body.
- Daily impact: The work you cannot do, the activities you gave up, and the help you now need at home.
None of that is exotic, and none of it should be a surprise on the day. The questions are predictable, which is why going through the records with your attorney beats trying to remember under pressure.
What Your Attorney Can and Cannot Do
New York has statewide rules that govern how depositions are conducted, and they limit what any attorney may say and do while you are being questioned. An objection must be stated succinctly and framed in a way that does not suggest an answer, and people in attendance may not make statements or comments that interfere with the questioning.
You must answer every question except in three narrow situations:
- To preserve a privilege or a right of confidentiality;
- To enforce a limitation set in a court order; or,
- When a question is plainly improper and answering it would cause significant prejudice to anyone.
An attorney may not direct you not to answer except on those grounds or as the objection rules otherwise permit. Any refusal or direction not to answer must come with a succinct and clear statement of the basis for it. Your lawyer also may not interrupt the deposition to talk with you unless all parties consent or the purpose is to decide whether one of those three grounds applies, and even then the reason goes on the record. Knowing that in advance keeps you from waiting for a rescue the rules do not allow.
How Long It Takes, and What Happens to the Transcript
Plan on a single day. Unless the parties stipulate otherwise or the court orders otherwise, New York’s uniform civil rules for the Supreme Court and the County Court limit a deposition to seven hours per deponent, and they limit each side to 10 depositions. That durational limit is presumptive rather than absolute. It can be enlarged by agreement of the parties or on an application for leave of court, which the rule says shall be freely granted, and for good cause the court may alter either limit.
The disclosure article adds that the deposition is taken continuously and without unreasonable adjournment unless the court orders otherwise or the witness and the parties present agree, so plan to finish in one sitting. Breaks are ordinary, and asking for one admits nothing.
Afterward, the transcript comes back to you. The rule for reviewing and signing it lets you enter any changes in form or substance at the end of the transcript, with your stated reason for each change, before you sign in front of an officer authorized to administer an oath. Two deadlines matter.
If you do not sign and return the transcript within 60 days, it may be used as fully as though you had signed it, and no changes may be made more than 60 days after it was submitted to you. The finished transcript can then be used, so far as the rules of evidence allow, to contradict or impeach a witness at a trial or at the hearing of a motion. Testimony given by a party may be used for any purpose by a party who was adversely interested when the testimony was given or when it is offered in evidence.
Practical Do’s and Don’ts for Testifying
Preparation matters more than eloquence. A few habits protect accurate testimony without shading it.
- Listen to the entire question, pause, and answer only what was asked.
- Say that you do not know or do not remember when that is the truth, because a guess becomes sworn testimony the other side can read back to you at trial.
- Answer out loud, since a nod or a shrug never reaches the record.
- Correct yourself right away if you realize an earlier answer was wrong.
- Do not volunteer extra facts, estimate speed or distance you did not measure, downplay your injuries, or argue with the questioner.
None of this asks you to memorize a script. It asks you to know which questions are coming.
Talk to a Garden City Personal Injury Attorney Before You Testify
Bornstein & Emanuel, P.C. has focused exclusively on personal injury since 1992. Preparing a client to testify is part of that work, including going over the questions that are likely to come, reviewing the records together, and standing beside you through the examination. Our staff speaks Spanish, and consultations are free. Contact our Garden City office to talk with an attorney before you give a statement under oath.
