Crime documentaries presented in various formats (news, tv series–fiction or non–and most recently on Netflix) always present witnesses during “depositions”. It’s often hard for those unfamiliar with the practice of law, or who have not taken part in litigation themselves to fully understand the difference between mediation, litigation, and deposition. These are three entirely different legal processes and within this article, we will seek to explain the difference between them. It’s important to demarcate these legal channels thoroughly, as they’re all part of the whole picture and in some cases, all three mediums are used to see a case to its conclusion.
Remember, a board certified civil trial attorney exceeds the experience and know-how of a lawyer that’s not willing to do what it takes to become board certified. A board certified trial lawyer is the best option for a personal injury claim.
The due diligence of Discovery
Before we look at the three distinct legal processes known as mediation, litigation, and deposition, we must establish the act of performing Discovery in a case. Discovery must take place before the case can proceed to any of the principles of law we’ll explain further in this article.
Law.com defines Discovery as:
n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.
During Discovery, both parties may summon for a “Request to Produce”. This request is simply a request for any documents–electronic or otherwise–in order to disclose information between the parties. This information could include a complete medical, work, and personal history of the plaintiff or defendant (or both) as well as a complete history of doctors visited, surgeries undergone, prescriptions taken, and any documentation of undo hardships placed upon the plaintiff as a result of the accident for which the lawsuit is being brought.
Aside from providing all necessary documentation when a Request to Produce is received, the most important thing to provide within the legal process (and as a helpful life’s lesson) is honesty and credibility. Honesty and credibility in an attorney-client relationship are the most important factors. Lying to the lawyer just to give he or she what you think they want to hear will not win your case.
When it comes to mediation, there are many viable reasons to go this route, if it suits the case at hand. It’s important to heed the advice of the lawyer when they’re advising what may be asked within mediation. It’s also important to go over any questions you may have in the event you don’t understand something prior to the mediation. The lawyer will be able to answer those questions and send their client into mediation confident and ready to win their case.
Before, during, and after mediation:
- The parties and the mediator have control of where and when the mediation takes place, who will be present during a mediation, and how the mediation is to be financed
- Mediation is usually voluntary, and both parties must agree that this is how they will attempt to resolve a legal dispute; however there are occasionally used statutes or court orders that may legally require a person or persons involvement in mediation
- Mediation is a common practice in personal injury cases and often helps to speed up the process to recovering damages on the client’s behalf after a settlement is reached
Law and Litigation
Litigation is defined simply as “the process of taking legal action”. Within the scope of a personal injury claim, this usually means that instead of choosing to go to mediation, for whatever reasons the lawyers have come to the decision to take the case to trial. During litigation, the case is presented to a judge and jury and the matter is decided in court.
Litigation usually takes place when the back and forth between the parties’ legal counsel is strained, unacceptable to either party, or the two parties cannot reach a reasonable agreement on a settlement and will not be able to for the foreseeable future. A judge will decide the outcome of the case once it goes to trial, unless the parties decide to settle out of court at any point during the trial process.
The deal on Deposition
Now that we’ve established the difference between Mediation and Litigation, we can now look at Deposition. What is it? How does it affect a case and what goes into a successful deposition that provides the plaintiff with the certainty that justice will be offered to them as the case proceeds?
Deposition is defined in the dictionary as:
The testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney’s office.
Deposition testimony is taken orally, with an attorney asking questions and the deponent (the individual being questioned) answering while a court reporter or tape recorder (or sometimes both) records the testimony. Deposition testimony is generally taken under oath, and the court reporter and the deponent often sign affidavits attesting to the accuracy of the subsequent printed transcript.
What does the client need to do before a deposition? Let’s look at the most important factors that go into a successful deposition.
- Honesty and credibility: no matter how much we stress this fact on the Shaked Law Blog, we can never do so enough. Being honest and credible in any legal proceeding is non-negotiable. Telling the whole truth is the best thing a client can do for themselves. There is no reason to embellish because it’s what a client thinks their attorney or the deposing attorney wants to hear, or that it will help them win their case. Lying during the legal process is the fastest way to kill a case before there’s even talk of compensation.
- The Book of Your Life: during a deposition, the deposing attorney may ask questions that will chronicle the Book of Your Life. These questions will span everything from medical inquiries to inquiries about employment and wages. Your attorney should prepare you beforehand to be able to fully answer these questions to the best of your ability, but will always step in if they feel the other party has crossed a line or if they prefer you don’t answer a question. When an attorney does this, remain quiet, focused, and do not interrupt or continue to attempt to answer the question.
- Look clean, presentable, and practice proper hygiene: this may not seem like it’s important, but it is. The way a client presents themselves during a deposition can say a lot about their credibility. The client should look clean, be well dressed in a suit and tie or a dress or skirt, and allow their professional, put-together appearance to speak for them. There are always exceptions to rules like this. For instance, if the client is catastrophically injured or in a hospital or rehabilitation facility, then those factors are taken into consideration rather than expecting a client with a fractured spine or broken legs to wear a suit.
To wrap up this article, Shaked Law Firm once again stresses the importance of honesty when consulting with a lawyer. Telling one little lie can kill the entire case. Claiming to have a back injury and being caught on social media dancing, partying, or moving around in ways that an injured person would not be able to do is something that should be avoided at all costs. In this day and age with the rise of social media, what we post, what people see, and the truth are three separate things. Keep that in mind when speaking with your attorney. Always provide accurate statements of what occurred, and don’t embellish any details. Your attorney doesn’t want the heat of the moment version of events, they simply want the facts.
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