Depositions are a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. The person who is deposed is called the deponent. The deposition is conducted under oath outside of the courtroom, usually in a lawyer’s office. A transcript is made of the account, word for word. Depositions can also be either video or audio recorded. A deposition is also done under sworn testimony. It is also referred to as examination before trial.
When a lawsuit is instituted, the parties have the right to conduct discovery or what is also called formal investigation. This is done to find out more about the case. Conducting discovery can be done in a number of different ways; it can include requests for documents, interrogatories (written questions), and depositions. Depositions are the most common way as it allows the parties to find out what the facts are and what each witness knows.
After the deponent is sworn in, an attorney will represent the parties involved in the case. That attorney will have an opportunity to question the witness. After the deposition is finished, a transcript is made available to all parties.
Why is one called in for a deposition? There are several reasons. They include:
• Gathering basic evidence.
• To serve as a record of the witness’s testimony so that the witnesses may be impeached if he/she deviates from that testimony at trial.
• To give attorneys an opportunity to ask questions that they may not be allowed to ask at trial.
• To have the testimony available as evidence in case the deponent is not available for any lawful reason during the time of the trial.
Depositions are primarily taken in civil cases. Depositions of defendants and people who may become defendants are less likely to occur in criminal cases. In civil cases, the opposition has the right to obtain damaging information from defendants. Not every case will require depositions to be taken. The determination is dependent upon facts and issues.
Attorneys for the deposing litigant are often present during a deposition, although this is not required in all jurisdictions. The attorney who has ordered the examination before trial begins questions the deponent (this is referred to as “direct examination” or “direct” for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.
Everything is recorded by the court reporter during a deposition, this includes off the record discussions, private conversations with an attorney (if they are heard), arguments between attorneys, jokes, and non-verbals including body language and gestures. Many attorneys advise their clients to rehearse legal testimony beforehand. This can be done through the practice of answering questions, especially questions presented in a confusing way. It is not uncommon for the opposing attorney to ask repetitious questions in order to wear out the opposition. A deponent should listen very carefully to the questions asked and carefully, precisely and clearly state their answer.
A deposition can take as long as a week, especially if there are numerous witnesses, or as short as fifteen minutes.
Steven Medvin is the Executive Director of SMP Advance Funding, LLC, which provides lawsuit funding to individuals who need a lawsuit loan for pending lawsuits. For more information please visit: https://www.smpadvance.com.
