Broadly speaking, most personal injury claims survive the death of the plaintiff. They live on as survivor’s actions or wrongful death claims brought by representatives of the deceased plaintiff’s estate.

Although seriously injured or terminally ill plaintiffs may no longer be a party to their legal actions, their testimony is often crucial to the value – or viability – of whatever legal claims might survive their demise. For this reason, the prospect that an injured plaintiff will not be available to testify at their own trial raises interesting challenges for litigators on both sides of the case. Chief among them is the need to secure the plaintiff’s deposition testimony before it becomes unavailable due to death.

Terminally ill parties possess persuasive and compelling evidence regarding the extent of their injuries, the circumstances leading up to their injury or illness, and the impact of their health condition on family members – much of which will be lost upon their demise.

Navigating Court Rules

In the United States, depositions fall broadly into two categories: “discovery depositions,” which are used to uncover relevant evidence during the early stages of litigation, and “trial depositions” or “evidence depositions,” which are used in lieu of trial testimony. Evidence depositions are often used for physicians and expert witnesses to spare them the inconvenience of trial proceedings. In many jurisdictions, there is no need to show that expert witnesses are, in fact, unavailable in order to use their deposition testimony at trial.

Terminally ill parties possess persuasive and compelling evidence regarding the extent of their injuries, the circumstances leading up to their inquiry or illness, and the impact of their health condition on family members – much of which will be lost upon their demise.

For other types of witnesses, however, court rules in most jurisdictions will require a showing of unavailability in order to use their deposition testimony at trial. “Evidence depositions” approximate trial testimony, so greater attention must be paid to the formalities of introducing evidence during an actual trial.

Lawyers in video-recorded evidence depositions make real-time objections, which are ruled upon by the trial court before the recording can be shown to the jury.

In the federal system, prospect that a critical witness or party may die before a civil action can be tried implicates, two court rules: Rule 27, which allows depositions to be taken to perpetuate testimony, and Rule 32, which controls how deposition testimony may be used at trial in the event the deponent has died.

There is a third rule, of course: Rule 30, which governs deposition practice generally, including the process for taking video depositions. Video depositions are increasingly common in civil litigation, particularly when the deposition witness will not be available to testify at trial.

Rule 27 (Depositions to Perpetuate Testimony) is a good place to start. The rule applies to two distinct types of depositions: those taken before an action has been filed, and those taken pending an appeal from a district court ruling. The purpose of a Rule 27 deposition, as we noted in a prior blog post on the four types of depositions, is to prevent a “failure of justice.” The loss of testimony from a grievously injured party would appear to meet Rule 27’s “failure of justice” standard.

There’s a catch with Rule 27, however. Depositions taken before a lawsuit has been filed require leave of court and notice to any “expected adverse party.” Pre-suit depositions can’t be noticed within a short timeframe because, under Rule 27(a)(2), potential adverse parties must be identified and given 21 days’ notice of the court hearing seeking the deposition. Another limitation imposed by. Rule 27: these depositions must be for the purpose of perpetuating testimony and avoiding the injustice that would occur if testimony is lost due to the witness’s death; they can’t be used for discovery purposes or for exploring the possibility of filing a lawsuit.

Far more likely is the scenario in which a plaintiff who has already filed a lawsuit is at risk of dying before the trial date. In this scenario, Rule 30 (Depositions by Oral Examination) is the relevant court rule. (In federal court, of course; but all state jurisdictions have substantially similar rules.)

Leave of court to take the deposition of a dying party, or witness, may be required if the deponent has already been deposed or if the deposition would take place outside the parameters of an existing pretrial discovery order. In all cases, the party seeking to take the deposition must give “reasonable written notice” to all other parties. What constitutes “reasonable notice,” will vary according to the circumstances of each case.

Where the death of a party or critical witness is imminent, “reasonable notice” might be no more than a few days. In Jones v. United States, 720 F.Supp. 355 (S.D.N.Y. 1989), the court ruled that eight days’ notice of an expert’s deposition was reasonable in view of the fact that the expert had recently suffered a stroke and would not be able to testify at trial without significant risk to his health.

There may be local court rules or a pretrial discovery order that require counsel to confer and agree on the timing of depositions; in which case, proceeding by stipulation would be more economical than seeking leave of court over an opposing party’s objection.

Finally, Rule 32 (Using Depositions in Court Proceedings) sets the ground rules for using depositions in lieu of live courtroom testimony. Rule 32(a)(4) provides that a deposition may be used “for any purpose” if:

• the witness is dead
• the witness cannot attend or testify because of age, illness, infirmity, or imprisonment
• exceptional circumstances make it desirable to permit the deposition to be used

Most litigators deposing witnesses to create testimony for use at trial will have the deposition video-recorded for greater impact. Procedures for taking a videotape deposition are governed by Rule 30(b)(4), which – while not requiring leave of court – establishes additional rules for noticing and taking video-recorded depositions that will be used as evidence in a subsequent court proceeding.

Questioning Sick or Dying Witnesses

Experienced litigators handle depositions of sick or dying witnesses with caution. While they want to present the witness in a positive light, they don’t want the witness to appear to be seeking sympathy. Instead, depositions of sick or dying witnesses tend to cover the basic particulars of their cases: background information, work history, the extent of their injuries, medical bills, and the factual circumstances leading up to their accident, surgical operation, or cancer diagnosis, as the case may be.

Terminally ill witnesses are sometimes asked about “the worst thing” about their condition, or how they would like to be remembered after death. A commonly cited strategy is to use the deposition to produce evidence supporting the cause of action and to build a human connection with the jury without appearing to seek sympathy or pity.

Lawyers who routinely represent catastrophically injured parties in vehicle mishaps or medical cases know from experience that their clients may not survive to see the end of the litigation. It’s important to make early decisions regarding the evidence needed to support all legal claims and to take steps to ensure that this evidence will be available at trial. In some cases, unfortunately, this means paying very close attention to the plaintiff’s health and moving aggressively to secure his or her testimony when family members report that death is imminent. Without quick action, critical evidence will be lost forever.