De Bene Esse Deposition

A de bene esse deposition is sworn testimony recorded, usually on video, so that it can be played at trial if the witness cannot attend. In asbestos cases it is often taken from a plaintiff with mesothelioma or another serious illness, to preserve his or her account of exposure and suffering.

Origin

De bene esse is Latin, roughly "conditionally" or "for what it is worth," reflecting testimony taken in advance to be used only if the witness is unavailable at trial. Court rules in many jurisdictions allow deposition testimony to be used at trial when a witness has died, is too ill to attend, or is otherwise unavailable.

Significance in Asbestos Context

A discovery deposition is mainly a chance for defendants to question the plaintiff and gather facts. A de bene esse deposition is different: it is taken with trial in mind, so the plaintiff's own lawyer usually questions first, and the jury may later watch it as the plaintiff's testimony. For someone with mesothelioma, this can be the only way the jury will hear directly from him or her about the work, the products and the illness. Courts often schedule it quickly when the plaintiff's health is declining, sometimes at home or in a hospital, with breaks as needed. Some jurisdictions combine discovery and preservation testimony; others hold them separately. Objections are handled so that the video can be edited before trial.

Example Sentence

Because his doctors expected him to decline quickly, the court ordered a de bene esse deposition at his home the following week.

Related Terms

Deposition, Trial Preference, Product Identification, Survival Action, Wrongful Death, Coworker Testimony

Notes

• It is normal to need breaks; tell your lawyer what times of day you feel strongest.
• Your lawyer will help you prepare by going over your work history and products before the deposition.
• Family members can often be nearby, though they usually should not speak during the testimony.