If you’ve ever been involved in a lawsuit, you’re probably familiar with the term “deposition”. It’s a key part of the discovery process in civil cases, where both sides of the case are gathering information to build their case before trial. It sounds intimidating, but depositions aren’t as scary if you know exactly how they work. Let’s break it down in simple terms so it’s easy to understand.
What Is Discovery?
We all know that in a case, there are two parties fighting for their rights: the plaintiff and the defendant. Therefore, before a case goes to trial, both parties must know what the underlying facts of the case are in order to take the case in their favor. This process is called discovery. On the other hand, you can also consider it a fact-finding mission of the case, where each party tries to find what evidence and arguments the other party has so they will not face any big surprises during the trial.
Discovery comes in a few different forms:
- Written questions (interrogatories): This is when one party sends the other party a list of questions that the other party must answer under oath.
- Document requests: The request may include medical records, e-mails, contracts, or any other document relative to the case.
- Subpoenas: This is when one party formally requests documents or testimony from someone who is not directly involved in the case.
Depositions are another tool in this toolkit. They’re especially useful when you need to hear from a witness directly.
What Is a Deposition?
Well, a deposition is a lot like an interview, but it’s under oath. A witness, called the deponent, answers a barrage of questions from the lawyers on both sides. Anything said during the deposition is recorded, usually by a court reporter, and may later be used as evidence in court.
Depositions permit each party:
- Find out what the witness knows.
- Preserve the witness’s testimony in case they can’t testify at the trial.
- Test how well the witness holds up under questioning.
They give both sides an opportunity to gather information and evaluate the strengths and weaknesses of their case. If the witness says something that does not coincide with what he or she is saying in court, the deposition transcript will be used to point out inconsistencies.
How does a deposition work?
Depositions do not take place in a courtroom. They usually occur in one of the attorney’s offices or a conference room. Here’s what to expect:
- Swearing In the Witness
First, the court reporter administers an oath to the deponent. This means he or she promises to testify truthfully. One can be severely punished for lying under oath.
- The Questioning Begins
The attorney who scheduled the deposition begins by asking questions. The attorney can ask the witness any questions as long as they are relevant to the case. Other attorneys present can then ask follow-up questions.
- Role of the Witness’s Attorney
Even if the witness hires a lawyer, their role during the deposition is limited, except perhaps to object to some questions. The lawyers do not answer the questions on behalf of the witness. If necessary, they may want to clarify points or ask additional questions.
- Recording Everything
The court reporter writes down everything said during the deposition. In some cases, a videographer may also record the session.
What Kinds of Questions Are Asked?
Depositions often involve more open-ended questions than you’d hear in court. The idea is to let the witness explain their side of the story without being restricted to “yes” or “no” answers. For example, a lawyer might ask:
- “Tell me in detail what happened that day”
- “What did you do after the incident?”
- “Do you have any documents related to this?”
Questions are usually polite but thorough, as attorneys want to get as much information as possible in preparation for trial.
What Happens After a Deposition?
After the deposition, the court reporter writes down, verbatim, on a transcript, all that has been said. Lawyers use this transcript to:
- Deposition testimony must be compared to other evidence.
- Preparation of trial arguments.
- Highlight inconsistencies or the possible weakness of their argument.
If anything new comes up in the deposition, further follow-up investigation or even additional depositions may be conducted. In this respect, the deposition process encourages both sides involved in a lawsuit to seriously consider a settlement before trial.
How Long Does a Deposition Last?
The length of a deposition depends on the case. Most last only a few hours, but complex cases might require depositions that last several days. Federal rules generally limit depositions to seven hours of questioning per day, though some states may have different rules.
Factors that could affect this would include:
- The number of questions asked.
- How detailed the witness’s answers are.
- Whether lawyers need to introduce or discuss documents.
Why are depositions important?
Depositions help all parties involved understand the case better. They’re not a way to guard the other side, they’re about building a strong case. Here’s why they matter:
- Avoiding Surprise: The attorney would like to know what a witness will testify to at the trial in order to plan arguments and prepare counterpoints.
- Judging Witness Credibility: Judging Witness Credibility: The deposition also gives an attorney the opportunity to judge how well a witness handles tough questions. If the witness seems confident and reliable, opposing counsel is very likely to discuss a settlement. In case the witness sounds unreliable, they are most likely headed for trial.
- Disclosure of New Evidence: Depositions often uncover information that was not previously known, which can alter both parties’ strategies in the case.
Tips for the Witness
If you’re asked to be deposed, you could feel a little nervous. Here are a few tips that will help prepare you:
- Know what to expect: Understand the process. If you don’t know something, then ask your attorney.
- Tell the Truth: Answer the questions honestly, as lying under oath can have severe consequences.
- Keep It Simple: Only answer the question. Never say anything more than necessary.
- Stay Cool: Depositions are not to debate the merits of your case. Focus on answering questions clearly and calmly.
- Take Your Time: If you don’t understand any questions, ask for clarification. It’s always better to pause or think over it than to guess.
When Should You Talk to a Lawyer?
If involved in or suspecting to be called for a deposition, it’s appropriate to seek the advice of an attorney. They will be in the best position to explain what to expect, prepare you for that, and advise you through it. Lawsuits are a source of stress, but proper advice may make all the difference.
Wrapping It Up
Depositions are a powerful part of most lawsuits. Depositions help the attorney discover the facts, test a witness, and prepare for trial. While the word “deposition” sounds intimidating, once one understands how it works, the deposition process is far more manageable. The best way to feel confident and stay on track, whether as a witness or as a party in the case, is to be prepared.
