A deposition is an out-of-court oral testimony of a witness which used later in court or for discovery purposes. Just like testifying in court, you are obliged to swear in a promise to tell “the truth, the whole truth, and nothing but the truth.”
Depositions are done to allow the parties to learn all of the facts before the trial. In fact, springing a surprise witness at the tenth hour of a trial is regarded as unfair. During a deposition, all witnesses are asked questions about the case so that by the time a trial begins, all parties will be aware of who the witnesses are and what they will be saying during the testimony.
Another aim of deposition is to know the weak spots of your case and prepare for ways to avoid or rebut them at the trial. You don’t want to hear damaging testimony for the first time during the trial. It is an opportunity to understand the case better prior to the trial.
The witnesses are obliged to answer the questions of the attorneys to determine what knowledge a witness has about the case. Usually, this is done without the presence of a judge.
How Are Depositions Conducted?
Depositions normally don’t take place in courtrooms. They are usually conducted at the law firm and even may take place at the witness’s home or workplace.
The attorneys ask questions to the witness, otherwise called a deponent. The entire deposition is recorded word-for-word by a court reporter. The court reporter attends the session and produces a transcript at a later time. It may be possible to videotape the deposition in case the witness cannot attend the trial due to illness or if he or she may be out of town.
The deposition is attended by:
- the deponent
- the deponent’s attorney
- a court reporter
- the attorney for the opposition party
The attorney representing the deponent may have a more limited role than the attorney would have in a courtroom. The deponent does not ask questions and only answers the questions addressed to him/her.
The attorneys can make objections to some inquiries. They may address questions that are broader than what is allowed in court.
Typically, a deposition lasts two hours. But in case of a heavily-involved witness, it may last as long as a week or more.
Even though the deposition is an out-of-court testimony, what is said by the deponents may have both civil and criminal penalties as the deponents are under oath.
Deposition Attorney: Do I need to File a Motion?
With the exception to the cases when the parties reach an agreement, the party that wants to take a deposition must file a motion.
The notice of deposition must include:
(1) The time and place of the deposition;
(2) The name and address of the person before whom the deposition will be taken;
(3) The name and address of the witness whose deposition is to be taken; and
(4) Any documents or materials that the witness must produce.
When Are Depositions Normally Required?
Normally, a case that involves only legal, not factual issues will not require a deposition since witness testimony does not play a crucial role in the decisions. In most lawsuits, however, depositions play an important role in creating a complete picture of the events.
It is prudent for a deponent to be represented by an attorney who can guide the witness and preserve his/her interests.