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Depositions: The Basics

Depositions: Dispelling Fear of the Unknown

The process of civil litigation can be an arcane and stressful process for non-lawyers.  One of the most substantial pre-trial events for parties and non-parties are depositions.    

What exactly is a deposition?  Most simply defined, a deposition is a formal proceeding whereby an attorney asks questions of the opposing party or the opposing party’s witnesses.  The person who is asked questions is referred to as the deponent, and must take an oath to answer the questions truthfully and fully.  It is conducted prior to trial for the purpose of allowing parties to gain information in preparation for the court case. 

Typically, depositions take place in a lawyer’s office.  No judge will appear.  Parties and attorneys to the case will be in attendance, as well as a court reporter.  The court reporter will record the deposition and later transcribe the oral discussion word for word onto paper.  This paper account of the oral testimony is known as the deposition transcript.  The deposition transcript may be used in trial preparation, and, under certain circumstances, portions of it may be admitted into evidence at the actual trial. 

Videotaping depositions is gaining popularity.  Like written transcripts, the videotape can be admissible at trial.  Having a judge or jury see and hear deposition testimony can have a greater impact than a written deposition transcript for obvious reasons.          

The purposes or goals of taking a deposition are the following:

(1) To discover new information about the case.  Interrogatories and document production provide a limited amount of information and are also limited in scope.  Depositions are broader in scope and allow attorneys to seek information that wouldn’t otherwise be able to be obtained.

(2) To pin down the witness as to facts.  Because depositions are taken under oath, witnesses must take care not to perjure themselves by stating an untruth or changing their testimony later.  This provides two primary benefits to the deposing party.  First, it provides a greater degree of certainty as to the facts of the case.  Second, if the witness does change his or her testimony after the deposition, the attorney can attack the witness’s truthfulness and credibility at trial.       

(3) To assess the strength of the witness.  The attorney conducting the deposition can learn a great deal by closely observing the deponent during the deposition.  The attorney should be asking him/herself questions pertaining to the witness’s personality.  Is the witness credible? Truthful?  Articulate?  Likable?  Intelligent?  Respectful?  Even tempered?   Emotional?  These are just a few examples of characteristics an attorney may be assessing in the witness.    

Prior to deposition, you should prepare with your attorney.  If you are not a party to the case, and are not represented in the lawsuit, you should seriously consider consulting with your own attorneys about the pending deposition. Even if you are not a party, you have the right to have your attorney be present and represent you in the deposition.  While you may only be a witness today, you could be a party tomorrow.  In addition, there are privileges and certain types of questions that either need not be answered or are not appropriate.  Only your attorney can provide the right advice when the questions are asked on the day of deposition. 

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