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Deposition

From lawbrain.com

The testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney's office.

Deposition testimony is taken orally, with an attorney asking questions and the deponent (the individual being questioned) answering while a court reporter or tape recorder (or sometimes both) records the testimony. Deposition testimony

is generally taken under oath, and the court reporter and the deponent often sign affidavits attesting to the accuracy of the subsequent printed transcript.

Depositions are a discovery tool. (Discovery is the process of assembling the testimonial and documentary evidence in a case before trial.) Other forms of discovery include interrogatories (written questions that are provided to a party and require written answers) and requests for production of documents.

Depositions are commonly used in civil litigation (suits for money damages or equitable relief); they are not commonly used in criminal proceedings (actions by a government entity seeking fines or imprisonment). A minority of states provide for depositions in criminal matters under special circumstances, such as to compel statements from an uncooperative witness and a few provide for depositions in criminal matters generally.

Before a deposition takes place, the deponent must be given adequate notice as to its time and place. Five days' notice is usually sufficient, but local rules may vary. Persons who are witnesses but not parties to the lawsuit must also be served with a subpoena (a command to appear and give testimony, backed by the authority of the court).

Depositions commonly take place after the exchange of interrogatories and requests for production of documents, because the evidence obtained from the latter often provides foundation for the questions posed to the deponent. Any documents, photographs, or other evidence referred to during the deposition is marked and numbered as exhibits for the deposition, and the court reporter attaches copies of these exhibits to the subsequent deposition transcript. Generally, at the outset of the deposition, the court reporter, who is often also a notary public, leads the deponent through an oath that the testimony that will be given will be true and correct.

The examining attorney begins the deposition and may ask the deponent a wide variety of questions. Questions that could not be asked of a witness in court because of doubts about their relevance or concerns about hearsay (statements of a third party) are usually allowed in the deposition setting, because they might reasonably lead to admissible statements or evidence. A party who refuses to answer a reasonable question can be subject to a court order and sanctions. However, a party may refuse to answer questions on the basis of privilege (a legal right not to testify). For example, statements made to an attorney, psychiatrist, or physician by a client seeking professional services can remain confidential, and a client may assert a privilege against being required to disclose these statements.

After the examining attorney's questions are completed, the attorney representing the adverse party in the litigation is permitted to ask followup questions to clarify or emphasize the deponent's testimony. In litigation involving a number of represented parties, any other attorney present may also ask questions.

The court reporter often records the proceedings in a deposition on a stenographic machine, which creates a phonetic and coded paper record as the parties speak. Occasionally, an attorney or witness may ask the court reporter to read back a portion of previous testimony during the deposition.

Most modern stenographic machines also write a text file directly to a computer diskette during the deposition. In the past, arduous manual labor was required to turn the phonetic and coded paper copy into a complete hand-typed transcript. This is now rarely necessary because sophisticated computer programs can create a transcript automatically from the text file on the diskette. When the transcription is complete, copies are provided to the attorneys, and the deponent is given the opportunity to review the testimony and correct any typographic errors.

The deposition, because it is taken with counsel present and under oath, becomes a significant evidentiary document. Based upon the deposition testimony, motions for summary judgment or partial summary judgment as to some claims in the lawsuit may be brought. (Summary judgment allows a judge to find that one party to the lawsuit prevails without trial, if there are no disputed material facts and judgment must be rendered as a matter of law.) If motions for summary judgment are denied and the case goes to trial, the deposition can be used to impeach (challenge) a party or witness who gives contradictory testimony on the witness stand.

The advent of sophisticated and low-cost video technology has resulted in increased videotaping of depositions. Both sides must agree to the videotaping, through a signed agreement called a stipulation, and in some jurisdictions, the parties must also seek a court order.

A videotaped record of a deposition offers several advantages. First, a videotape shows clearly the facial expressions and posture of the witnesses, which can clarify otherwise ambiguous statements. Second, physical injuries such as burns, scars, or limitations can easily be demonstrated. Third, a videotape may have a greater effect on a jury if portions of the deposition are introduced at trial as evidence. Finally, a videotape can serve as a more effective substitute for a party who cannot testify at trial, like an expert witness from another state or a witness who is too ill to be brought to the courtroom. If a witness dies unexpectedly before trial, a videotaped deposition can be admitted in lieu of live testimony because the deposition was taken under oath and the opposing attorney had the opportunity to cross-examine the witness.

Another advance in technology is the ability to take depositions by telephone. Telephonic depositions are allowed under the federal rules and are acceptable in most states. The procedures for a telephonic deposition are the same as for a regular deposition, although it is preferable (and sometimes required) that the examining attorney state for the record that the deposition is being taken over the telephone. A telephonic deposition can occur with the attorneys and the deponent in three different sites; in any case, federal and state rules stipulate that the judicial district within which the deponent is located is the official site of the deposition.

Another technology used for depositions is videoconferencing, where sound transmitters and receivers are combined with video cameras and monitors, allowing the attorneys and deponents to see each other as a deposition proceeds. Videoconferencing makes the examination of exhibits easier and also helps reduce confusion among the participants that may result from ambiguous or unclear verbal responses.

Further Readings

Balabanian, David M. 1987. "Medium v. Tedium: Video Depositions Come of Age." Practising Law Institute/Litigation 328.

Collins, Maureen B. 2002. "Taking the Deposition (and Getting It Right)." Illinois Bar Journal 90 (June): 323.

Malone, David M., and Peter T. Hoffman. 2001. The Effective Deposition: Techniques and Strategies That Work. rev. 2d ed. Notre Dame, Ind.: National Institute for Trial Advocacy.

Martiniak, Chris. 2002. How to Take and Defend Depositions. 3d ed. New York: Aspen Law & Business.

McElhaney, James W. 2003. "Deposition Goals: Develop a Plan to Get What You're After from Witnesses in Discovery." ABA Journal 89 (August): 30.

Montoya, Jean. 1995. "A Theory of Compulsory Process Clause Discovery Rights." Indiana Law Journal 70.

Zweifach, Lawrence J., and Gerson Zweifach. 1994. "Preparing to Take and Taking the Deposition." Practising Law Institute/Litigation 507.

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