What is a Deposition?
A legal deposition is sworn testimony given outside of court. The deponent (testimony giver) must be sworn in, but a judge does not need to be present for a deposition to take place.
Depositions are used by lawyers as they prepare to make their in-court case. By taking testimony before the court case, the attorney learns facts they can use to make their case, and can even use the deposition testimony to cross-examine the witness or catch them in a contradiction.
Depositions are part of a larger pre-court process called discovery. Understanding the discovery process can help one understand the purpose of depositions in relation to a larger picture.
Conducting Discovery
The discovery process is the pre-trial time when a lawyer or attorney gathers evidence and prepares their case. There are several tools that can be used to allow an attorney to gather the evidence he needs. These tools include:
Interrogatories
Requests for Documents
Requests for Admissions
Requests for Depositions
Interrogatories:
Interrogatories are written questions that an attorney can send to other parties involved in a case. The questions are required by law to be answered, allowing the attorney to get responses from his adversaries they might be unwilling to give if the attorney had just asked.
Request for Documents:
In the name, a Request for Documents is a formal request for pertinent files in physical or digital formats. This request is similarly required to be fulfilled, allowing for the collection of evidence, personal or otherwise, an attorney would not have access to.
Request for Admissions:
A Request for Admissions is a formal document, similar to an Interrogatory, but structured differently. An Interrogatory asks a question that other parties must respond to how they see fit. A Request for Admissions makes a statement and requests the other party to admit the truthfulness of the statement or deny its veracity. These admissions can be used, much like a deponent’s testimony, to contradict and cross-examine witnesses in court.
Request for Depositions:
A Request for Depositions is a formal request sent to opposing parties for out-of-court testimony. If circumstances do not allow for in-person testimony, legal depositions can be done over video or audio conferencing, so long as a sworn oath is given and a court reporter is present. The purpose of a deposition is best understood in the discovery context — it is easy to see how useful testimony would be pre-trial, just like documents, answered interrogatories, and admitted statements.
Motion to Compel Discovery:
If any party rejects a discovery request (for example, if they felt a document was not pertinent to the case), the requesting party can file a “Motion to Compel Discovery” with the Court. The Court will then decide whether to mandate the fulfillment of the discovery request or allow the adversary to reject the request.
Subpoenas:
Discovery requests can be made to non-parties or individuals outside the case at hand. These requests are made with a subpoena from the Court, compelling the outside person to give evidence or testimony in the discovery process.
What is the Deposition Process?
Now that we understand what legal depositions are in a discovery context, let’s take a closer look at the deposition process itself.
What is the primary purpose of a deposition?
As discussed previously, the primary purpose of a deposition is to gather evidence in the form of testimony to be used at trial. The deposition is evidence that can be used to structure a case, cross-examine a witness, or even disqualify a witness based on contradictory statements. Impeaching a witness can have powerful effects on a case in trial.
Depositions also serve other purposes. Depositions can be used by attorneys to test theories they have about the case at hand. They can also be used to gather information from non-parties, like medical experts or professionals in pertinent fields. Although this information may not be frequently used or presented in court, it will still help lawyers develop a complete picture of how best to present their case.
What are Deposition Rules?
Depositions follow similar rules to in-court testimony. Parties must be sworn in, a court reporter must be present, and attorneys are limited in how they may treat a witness. That said, a judge need not be present for a legal deposition, and unlike during cross-examination in court, actions like leading questions are typically allowed (though this can be considered bad form and reflect poorly on the attorney). This freer form of questioning can be useful both for information gathering and getting commitments from witnesses.
Can a Settlement be Made at a Deposition?
While settlements are made and agreed to through their own process, a deposition can often provide the necessary information to lead to an out-of-court settlement. By taking testimony from the right witnesses, parties may see that they will likely lose if the case goes to trial, and will thus be more likely to agree on a settlement. This is especially true of personal injury cases, where there is often one clearly responsible party.
What is a Deposition Like?
What are depositions? Out-of-court testimony. What is the purpose of a deposition? Pre-trial discovery. It’s easy to understand with a little basic background, but you may still wonder, “What should I expect at a deposition?” If you’ve been called as a deponent, it’s a good idea to do a little research and learn what you’re getting into.
What should I expect at a deposition?
In-person depositions are typically small events, with as few as three people present. There is always a legally certified court reporter present, the deponent (you, if you’ve been asked to give testimony), and the examiner (usually the attorney conducts the deposition themselves). The attorney can question a deponent in one day, for no more than seven hours. Be prepared for an entire day in case the lawyer intends for a long session, as a deponent can be required to stay the entire seven hours.
How should I conduct myself at a deposition hearing?
As a deponent, there are a few key rules you should follow:
Don’t guess. If you aren’t sure about an answer to a question, simply say so. “I don’t know” or “I don’t remember” is better than being wrong and disproven later.
Understand the documents you are asked about. Ensure you read or review the documents you are asked to testify about. Make sure you understand the context in which the photos are taken and don’t guess at anything you are unsure about. If you verify that a document is accurate, anything in that entire document can be used to impeach you.
Correct yourself or add information. Don’t be afraid to correct yourself. If you realize that you made a mistake or were confused about an earlier topic, you can correct yourself or add clarifying information.
Tell the truth. You should always be honest when giving sworn testimony in a deposition. Lawyers are great at uncovering lies, and it will only hurt you if you give false testimony and they catch a contradiction.
What Does a Court Reporter Do at a Deposition?
A court reporter’s job at a deposition is to take down all statements made by all parties present at the deposition. This can be a challenging job, especially if deponents begin answering questions before the examiner is finished, or parties are speaking at the same time. The quality and accuracy of the court reporter can make or break the evidence gathered from the deposition. If a court reporter is inaccurate and misses a key piece of evidence, whether or not it was said, it can no longer be used in court. The court reporter plays a key role in the core purpose of a deposition.
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