Depositions are the taking of out-of-court testimony of witnesses. After a civil lawsuit has been filed each side, as a part of the process called discovery, is allowed to question the other side.
This questioning will pertain to things the other side may intend to use during court proceedings, which may include:
- Facts;
- Witnesses; and
- Evidence.
During a deposition, the attorney for one side asks a witness a series of questions regarding the witness’ knowledge of the facts, circumstances, and events that are relevant to the case. The witness being deposed may be:
- The other party;
- Another individual whom the other party claims has relevant knowledge; or
- An expert whose conclusions and opinions are sought.
The purpose of a deposition is to obtain answers to the questions an attorney asks from a witness who is sworn in, or under oath. During a deposition, a court reporter is present and takes notes of the proceeding.
The notes taken include a word-for-word recording of what the witness says. These notes are then translated into a deposition transcript.
Either side to the lawsuit may obtain a copy of the transcript. A witness is permitted to review their transcript testimony as well. If the witness believes that their testimony was recorded inaccurately, the witness can note the perceived inaccuracies as well as provide what they maintain that their actual testimony was.
Preparing for a deposition is very important. The attorneys in the case will brief their clients in advance regarding how to prepare.
A witness may prepare by reviewing statements and documents that are related to their claims or defenses. When a witness arrives to have their deposition taken, also called being deposed, the witness should be suitably dressed.
The witness should also bring any documents they may be questioned about. The witness should arrive on time as well as be physically and mentally prepared.
Ensuring that they have adequate rest the night before the deposition is an important part of preparation. If a witness is not properly prepared, they may answer questions by providing unhelpful information, too much information, or incorrect information.
Depositions can be used by both sides to obtain relevant evidence regarding the case. Evidence is material which supports one of the party’s claims or defenses.
For example, if a plaintiff in an automobile accident case claims that the defendant was negligent, the plaintiff’s attorney will be able to depose the defendant driver. Their attorney may ask the defendant driver if there were any conditions which impaired their performance prior to the accident.
Conditions which may be relevant include:
- Whether it was raining;
- Whether the defendant neglected to wear their glasses; or
- Whether the defendant was using a cellular device while driving.
How is a Deposition Used?
A deposition is used when the facts of the case are in dispute by the parties. When the deposition is complete, it can be offered into the court record as admissible, relevant evidence.
This means that the party is permitted to use and to refer to the deposition during a trial. A trial is a presentation of a party’s case before a judge or jury. If the case is presented before a judge, it is referred to as a bench trial.
A party may also use a deposition at trial to show that a witness who is testifying is not being truthful. Trial testimony on a certain question may vary from how the witness answered during their deposition.
An attorney may point out these discrepancies in order to call the witness’ credibility into question. This process is called impeaching the witness.
What Happens During a Deposition?
During a deposition, the attorneys from each side of the case ask witnesses questions. For example, in an automobile accident case which is filed by a plaintiff, an attorney for the plaintiff may ask the defendant questions, which may include questions related to the accident and other information about the defendant.
The questions asked during a deposition are designed to obtain relevant information and include:
- Who;
- What;
- When;
- Where; and
- How.
Usually, the witness who is being deposed will be represented by their own attorney. During a deposition, an attorney may ask a question which is improper, such as a relevant or leading question.
The attorney for the other side may make an objection if this occurs. An objection may lead to a request for the other attorney to withdraw the improper question.
In some cases, a dispute may arise regarding whether or not a witness will be required to answer a particular question. If the deposition is being conducted in court, the parties may attempt to secure the assistance of a judge, who will determine whether or not the party is required to answer.
Depositions commonly occur at the law offices of the attorney for the individual who is being deposed. During a deposition, when a judge is not readily available, a dispute is usually settled.
This often occurs when the attorney re-states the question in a manner which is satisfactory to all parties involved. During the deposition, as noted above, the court report records what the witnesses and the attorneys say.
The transcript which results from the deposition can then be obtained by the parties. In some cases, a deposition will be videotaped by an individual who is referred to as a videographer.
During a deposition, a witness is required to truthfully answer any questions which are asked of them. After the attorney for one of the parties completes their portion of the questioning, the other party’s attorney is permitted to ask questions.
These questions often serve as clarifying or follow up questions. If it is necessary, the other attorney may then ask redirect questions, or questions which related to the clarifying or follow up questions.
The attorneys for the parties may also choose to have a break during the deposition, to take a lunch break, or to prevent questioning for a period of time.
Who is a Non-Party?
A non-party is an individual who is not named as a party to the lawsuit. The individual is neither the plaintiff nor the defendant and they do not have an interest in the lawsuit.
Do I Have to Appear for a Deposition as a Non-Party?
If an individual is served with a deposition subpoena as a non-party, they may not be required to appear. Depending upon the involvement and knowledge of the case matter of the non-party, they may be able to obtain a protective order to prevent the deposition from occurring.
What Privileges Can I Invoke?
In general, a non-party may move for a protective order to prevent the taking of their deposition. The non-party may be able to assert that the deposition is harassing, embarrassing, or non-essential because of their relationship with the parties in the case or because other parties who are more knowledgeable are being deposed.
In addition, there are certain evidence code privileges which may prevent a deposition, including:
A privileged communications lawyer can assist an individual with these issues.
What if My Protective Order is Denied?
If an individual’s protective order is denied, they will be required to give a deposition. If they do not appear for the deposition, they may be sanctioned or held in contempt of court.
It is important to note that an individual is permitted to have their attorney present during their deposition. Their attorney will ensure that the deponent, or individual asking the questions, is only asking questions which are relevant and within the scope of discovery.
Do I Need a Lawyer?
If you are a non-party to a lawsuit who has received a deposition subpoena, it may be helpful to consult with an attorney. A personal injury lawyer can represent you during the deposition and if you are required to testify in court.
