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What Is a Deposition?

deposition is a powerful part of the discovery process in a civil case. It allows opposing counsel to question a witness sworn to tell the truth. Following a deposition, parties usually have a better understanding of the case. It can be an essential step toward settlement or further discovery.

This article details what a deposition entails. Specifically, it covers the following topics:

  • Overview of discovery in civil lawsuits
  • The deposition process
  • What to expect if you are deposed
  • What happens after a deposition

Overview of the Discovery Process

In a lawsuit, all named parties have the right to conduct discovery. Discovery is a formal investigation allowing parties to find out more about the case. Accessing this information before a trial is important. It will enable the parties to use facts and potential evidence to define their strategies better. It also prevents unexpected delays once the trial begins. In some cases, information learned during discovery helps the opposing sides settle without having to go to trial.

Discovery can come in many different forms. In most cases, parties send demands for discovery. These often include written questions, called "interrogatories," and requests to produce documents. These demands allow parties to gather relevant information from the other parties.

For example, discovery may include relevant medical records in a personal injury lawsuit. If the case involves a car accident, there may be demands for police accident reports and information regarding insurance companies.

During discovery, parties can use subpoenas to request relevant documents or testimony that are not willingly disclosed.

Many cases warrant depositions. A deposition is the taking of an oral statement of a witness before trial under oath. Depositions may be taken of lay or expert witnesses.

Whether a deposition is needed depends on each case's unique facts and circumstances. Cases that involve only legal, not factual, issues usually do not require them. Witness testimony regarding a solely legal issue most likely is not necessary. In many lawsuits, however, deposition testimony is important in painting a complete picture of the events.

Deposition Basics

Unlike the information recorded in documents or the attorneys' answers to interrogatories, a deposition involves a living, breathing witness. The deposition has two significant purposes:

  • To find out what the witness knows and believes
  • To preserve that witness's testimony

The intent is to allow the parties to learn all the facts before the trial so that no one is surprised once that witness is on the stand. Contrary to what movies and TV shows would have you believe, springing a surprise witness at the eleventh hour of a trial is regarded as unfair. By the time a trial begins, the parties must identify all witnesses. Additionally, parties will identify the topics to which a witness will testify.

A deposition is an opportunity to form a better case evaluation. It is not solely about obtaining favorable testimony. If, for example, a witness's version of events would undermine your case, that's something you should know about long before the trial begins. Depositions tend to eliminate surprises at trial. Therefore, a deposition allows all sides to learn the weak spots in their respective cases. The parties can then prepare for ways to avoid or dispute them at trial.

A third purpose of deposing a witness is to judge how well a witness handles cross-examination. For example, if the witness appears on their behalf well, the opposing party may consider settling the case. Moreover, if opposing counsel believes the witness is sympathetic, they may want to settle the case.

On the other hand, if the opposing party knows the witness lied during their deposition, they may want to take the case to trial. Furthermore, if the opposing party believes the jury will not sympathize with the witness or find them credible, the opposing party may want to try the case.

How Depositions Work

Depositions don't take place in courtrooms. Instead, they usually occur in attorneys' offices or law office conference rooms. No judges are present during a deposition. A court reporter will record every word spoken during the entire deposition. If the parties know the witness will not be available at trial, a videographer may record the deposition.

The court reporter will swear in the witness, also known as the deponent. The oath requires the witness to tell the truth. Any false statements made under oath can carry both civil and criminal penalties. This is known as perjury. If a witness did not take an oath, their statement would qualify as hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Hearsay is generally not admissible in court.

The attorney who noticed the deposition will ask the deponent questions about the lawsuit. If other attorneys are present, they can then ask the witness questions.

All parties to the case may attend the deposition. A deponent often has their attorney present. The deponent's attorney typically has a more limited role than in a courtroom. The deponent's attorney will likely only actively participate if they object to opposing counsel questions or have follow-up questions.

Generally, the range of deposition questions is broader than those allowed in court. Attorneys for the deponent or parties to the lawsuit may object to some inquiries. However, the deponent is usually obligated to answer all proper questions. A judge can later rule on objections made during the deposition.

How long a deposition can last depends on each state's court rules. Generally speaking, the maximum time for a deposition is seven hours in total. In a federal case, the federal rules of civil procedure limit depositions to seven hours. Depositions may take place over several days in some circumstances. However, the length of the deposition cannot exceed the time limit set by the state or federal rules.

A deposition's length depends on many factors, including:

  • The complexity of the case
  • The number of questions asked
  • The length of the deponent's answers
  • The number of exhibits introduced

An average deposition will take between two and four hours. Some depositions may only take 10 to 30 minutes. It all depends on the particular case.

What Happens After a Deposition?

Depositions often provide additional information that the parties may follow up and investigate. The discovery phase will continue, and parties may schedule other depositions.

The court reporter will produce a written transcript of the deposition. The deposition transcript is valuable for parties to review and compare with known evidence. Access to the deposition transcript helps parties further evaluate the case and plan for settlement or trial.

Have More Questions About Depositions? Talk to a Local Attorney

If you are a witness in a lawsuit, it may be worth learning more about depositions. If you are involved in a personal injury case, consider contacting a personal injury attorney near you. They can provide legal advice regarding your case and a potential deposition. Speaking with a skilled litigation and appeals attorney may also be prudent. An attorney can help guide you and preserve your interests in complex legal situations.

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