Legal Process
An Examination Before Trial is the deposition stage of a New York personal injury lawsuit. Here is when it happens, who is in the room, and what you will be asked.
If you’ve never been involved in a lawsuit before, the thought of giving testimony can be intimidating. One of the questions I hear most often from clients pursuing a Long Island personal injury claim is, “What is going to happen during my deposition?” The good news is that an Examination Before Trial, commonly called an EBT, is usually much less dramatic than people imagine.
In this blog I’ll explain what an EBT is, when it takes place, why attorneys conduct them, and who will be in the room. I’ll also walk you through the types of questions you can expect and share the practical advice I give my own clients before they testify.
After nearly three decades of preparing clients for depositions across Nassau and Suffolk Counties, I’ve found that most of the anxiety people feel beforehand disappears once they understand the process ahead of time.
An Examination Before Trial is the formal question and answer session that takes place during the discovery phase of a lawsuit. In many states it is called a deposition. In New York, attorneys often use the term EBT, though both words describe the same proceeding.
You will be placed under oath and asked questions by the opposing attorney, typically the lawyer representing the insurance company for the person or business you are suing. A court reporter records every question and answer, creating a written transcript that may be used later in the case, including at trial if your testimony ever changes. Your attorney is present to protect your rights, make appropriate objections, and help ensure the process is conducted fairly.
An EBT is important because you are under oath, it is not done in a courtroom proceeding. But is an important proceeding. It is an opportunity for both sides to gather information directly from the people involved, rather than relying solely on paperwork and medical records.
Most EBTs take place in a conference room, either at an attorney’s office or, increasingly, over a secure video platform. The setting is far more relaxed than most people expect. There is a table, chairs, a court reporter with a stenography machine, and the attorneys involved. Nothing about the physical environment should add to your stress once you know what to expect.
Most personal injury lawsuits do not proceed directly to trial. After the lawsuit is filed and the defendant answers the complaint, the parties begin discovery. During this stage they exchange documents, obtain medical records, respond to written questions called interrogatories, and eventually conduct depositions.
Depending on the court, the complexity of the case, and scheduling issues, your EBT may occur several months after the lawsuit begins. Some cases in Nassau and Suffolk Counties move through the court’s preliminary conference schedule fairly quickly, while others take longer, particularly if there are multiple parties, ongoing medical treatment, or difficulty coordinating everyone’s calendars.
It’s common for clients to ask whether they should wait until they finish treatment before their EBT is scheduled. In most cases, the court sets deadlines that require depositions to move forward even if you are still receiving care, since your treatment can always be updated with supplemental medical records later in the case.
By the time your deposition is scheduled, your attorney should have already discussed the process with you and prepared you for the questions you are likely to receive, ideally during a dedicated pre-deposition meeting rather than a rushed phone call the night before.
| 1 | Lawsuit Filed & Answered
The complaint is filed and the defendant responds, officially starting the case. |
| 2 | Discovery Begins
Both sides exchange documents, medical records, and written interrogatories. |
| 3 | Your EBT Is Scheduled
Your attorney prepares you in advance during a dedicated pre-deposition meeting. |
| 4 | Deposition Testimony Given
You answer questions under oath while a court reporter creates the transcript. |
| 5 | Settlement Talks or Trial Prep
With the evidence clearer, cases often move toward settlement — or on to trial. |
An EBT serves several important purposes. First, it allows each side to learn the facts directly from the witnesses rather than through summaries or hearsay. The defense attorney wants to understand how the accident happened, what injuries you claim, what treatment you received, and how the incident has affected your life.
Second, your testimony allows both sides to evaluate the strengths and weaknesses of the case. Cases often settle after depositions because everyone has a better understanding of the evidence, including how credible and likeable a witness you will be in front of a jury.
Third, an EBT helps preserve testimony. If a witness later changes their version of events, whether intentionally or simply because memories fade over time, the transcript can be used to point out inconsistencies. This is one reason why answering truthfully and consistently matters so much.
Finally, depositions give your own attorney valuable information as well. Hearing how the defense attorney approaches certain topics, what documents they focus on, and which issues they seem most interested in helps your legal team refine its strategy for settlement negotiations or trial.
Most EBTs are attended by you, your attorney, the defense attorney and a court reporter. If there are multiple parties, such as in a multi-vehicle car accident, additional attorneys may also attend, each representing a different defendant.
Today, many depositions are conducted by Zoom or another secure video platform, making scheduling easier while still allowing everyone to participate effectively. Even in a remote setting, you remain under oath and the same rules apply as if everyone were in the same room.
Before questioning begins, the court reporter will administer an oath and explain the process, including the importance of giving verbal answers instead of head nods, since the transcript can only capture what is spoken aloud. Once the questioning starts, your attorney remains by your side throughout the examination and can object to improper questions, request breaks, or clarify the record when needed.
Every deposition is a little different, and every attorney has a different style. Some attorneys begin with background questions before discussing the accident. Others go directly into how the incident happened. No matter the order, most personal injury depositions cover the same general topics. Knowing what to expect often makes the experience much less stressful, and it lets you focus on giving honest, thoughtful answers instead of worrying about what might come next.
Most depositions begin with basic background information. You may be asked your address, how long you’ve lived there, your education, employment history, marital status, who lives in your household, and whether you support anyone financially. Depending on the case, you may also be asked about prior lawsuits, workers’ compensation claims, or criminal convictions.
These questions can feel invasive, but they are routine. The defense attorney is simply learning who you are and building context for the rest of the deposition. Answer honestly and directly, even if a question feels unrelated to your injuries. Trying to guess why a question is being asked, or resisting basic background information, tends to create more suspicion than it avoids.
Next comes the discussion about how the accident happened. Lawyers refer to this as liability. Expect questions about where you were going, what you saw, what you heard, weather conditions, lighting, traffic, the position of the vehicles or people involved, and what happened immediately before, during, and after the accident.
In a Long Island car accident case, this often means detailed questions about your speed, the traffic signals or signs at the intersection, whether you were using a phone, and what the other driver did in the moments before impact. If there are photographs, diagrams, property damage estimates, or surveillance video, you may be asked about them in detail.
The goal is to understand exactly how the incident occurred and to lock in your version of events. Take your time, picture the scene as you answer, and don’t feel pressured to fill in gaps you genuinely don’t remember.
Damages are the losses you suffered because of the accident. You will likely be asked what parts of your body were injured, what symptoms you experienced, whether you continue to have pain, what activities you can no longer do, and whether your injuries are permanent.
Depending on your case, this might include a herniated disc, a soft tissue injury such as a strain or sprain, or a fracture that required a cast, surgery, or hardware. Be honest and specific about each injury, including ones that have improved, since minimizing legitimate ongoing symptoms can hurt your credibility just as much as exaggerating them.
Expect detailed questions about your medical care. That may include ambulance treatment, emergency room visits, primary care physicians, orthopedic doctors, neurologists, chiropractors, physical therapists, pain management doctors, imaging studies such as X-rays or MRIs, injections, surgeries, medications, and your current condition.
You may also be asked about gaps in treatment, meaning periods where you did not see a doctor. If you missed appointments because of work, childcare, transportation, or because you felt you were improving, explain the real reason rather than guessing at dates or leaving the impression that you simply stopped caring about your recovery. If you do not remember exact dates, say so rather than guessing, since your medical records already establish the timeline far more reliably than memory can.
The defense attorney will usually ask whether you injured the same body parts before this accident or after it. These questions are expected, and nearly every experienced injury attorney prepares clients for them in advance.
Prior injuries do not prevent recovery under New York law, but failing to disclose them can seriously damage your credibility once the defense obtains your prior medical records, which they routinely do. Review any prior accidents, workers’ compensation claims, or significant medical history with your attorney before the deposition so there are no surprises.
If you are claiming lost wages or diminished earning capacity, expect questions about your employer, job duties, work schedule, pay, benefits, and the amount of time you missed from work. You may also be asked whether you used sick time, vacation time, or short-term disability benefits during your recovery.
If you returned to work with restrictions, needed accommodations, or changed jobs because of your injuries, be prepared to explain why in specific, concrete terms rather than general statements.
One of the most important subjects is how your injuries affected your everyday life. You may be asked about hobbies, exercise, household chores, driving, vacations, family activities, sleep, and anything else that changed because of your injuries.
These questions help paint a picture of how the accident affected you beyond the medical records, and they often matter as much to the value of your case as your diagnosis does. Give real, specific examples rather than broad statements like “I can’t do anything anymore.” Specific details, such as no longer being able to coach your child’s soccer team or garden the way you used to, are far more persuasive and credible to a jury or an insurance adjuster than general complaints.
Every attorney conducts depositions differently. Some move back and forth between topics. Others follow a strict outline. Don’t worry about the order. Simply listen to each question and answer it honestly.
| 1 | Tell the Truth
The truth is always the easiest testimony to remember. Discuss anything that concerns you with your attorney beforehand. |
| 2 | Don’t Guess
If you don’t know or don’t remember, say so. “I don’t remember” is one of the safest answers you can give. |
| 3 | Answer Only What’s Asked
Listen carefully and keep answers focused. Volunteering extra details often invites follow-up questions. |
| 4 | This Isn’t a Trial
Don’t argue with the defense attorney. Your job is simply to answer truthfully and let your attorney handle the rest. |
| 5 | Stay Calm & Professional
Treat everyone with courtesy. Defense attorneys report their impressions back to the insurance company. |
| 6 | Take Your Time
Listen to the full question before answering. Ask for clarification, or a break, whenever you need one. |
“After preparing clients for depositions over the years, I’ve found that the best witnesses are usually the simplest witnesses. They listen carefully, answer honestly, and stop talking once they’ve answered the question. Trying to outsmart the other attorney or win an argument almost never helps. Credibility matters more than almost anything else in a personal injury case. If you tell the truth, stay composed, and trust your attorney to handle the legal strategy, you’ve done your job well.”
Steven Palermo
An EBT, or Examination Before Trial, is sworn testimony given during the discovery phase of a lawsuit, similar to what other states call a deposition. The opposing attorney asks questions while a court reporter transcribes every word. Your own attorney attends to protect your rights and object to improper questions when necessary.
Most personal injury depositions last between one and three hours, though complex cases with multiple defendants or extensive medical treatment can take longer. Your attorney can request breaks at any time, and the process is rarely completed in a single rushed sitting.
Yes. If you honestly don't recall a detail, saying "I don't remember" is an acceptable and often the safest answer. Guessing at facts you aren't sure of can create inconsistencies that hurt your credibility later, so accuracy matters more than filling every silence.
After your deposition, the transcript is prepared and both attorneys review it. Depositions often lead to renewed settlement discussions, since each side now has a clearer picture of the evidence, the witnesses, and how a jury might view the case going forward.
Sometimes. Your attorney will tell you in advance if any records, photos, or paperwork are required, based on the defense attorney's demand. Never bring documents on your own without first reviewing them with your attorney to confirm they should be produced.
It's possible. Defense attorneys sometimes ask whether you post on social media and may reference public posts that seem to contradict your claimed injuries. Avoid posting about your accident, injuries, symptoms, or daily activities online while your personal injury case remains pending, since even innocent posts can be misread.
Yes. If your trial testimony differs from your deposition testimony, the opposing attorney can use the transcript to highlight the inconsistency in front of a jury. This is exactly why truthful, consistent answers during your EBT matter so much for your credibility later.
Dress neatly and conservatively, similar to what you might wear to a job interview. You don't need a suit, but clean, professional clothing helps convey that you are taking the process seriously and shows respect for the proceeding.
Yes, and it happens often. Many personal injury cases resolve through settlement once both sides have completed depositions and understand the strength of the evidence, avoiding the additional time, expense, and uncertainty that a trial would otherwise involve for everyone.
You can ask that a confusing or unclear question be rephrased before answering. If you believe a question is improper, your own attorney is present specifically to object on the record. You should never argue with the defense attorney directly during your testimony.
The information provided in this blog is for general informational purposes only and reflects the opinions of the author. It is not legal advice and does not create an attorney-client relationship. Every case is different, and results depend on the specific facts and applicable law. You should not act or rely on any information in this blog without first seeking advice from a qualified attorney regarding your individual situation.
