Deposition

The testimony of a witness sworn in an out-of-court setting, typically before a trial

What is a Deposition?

Deposition refers to the testimony of a witness typically sworn before a trial in an out-of-court setting. It is used to get information for gathering evidence, and the testimony may be used at the trial. A deposition involves a living witness being asked questions related to a case. Here, the witness is called the deponent.

 

Deposition

 

Deposition provides an opportunity for both sides to discover all the facts before the trial and learn all the information that is known to the witnesses, so there are no surprises at the trial. It enables the attorneys to learn their weak spots and prepare ways to avoid or disprove them in the courtroom. In Canada, deposition is referred to as the examination for discovery.

 

Summary

  • Deposition refers to the testimony of a witness sworn in an out-of-court setting, typically before a trial.
  • Deposition provides an opportunity for both sides to discover all the facts and information known to the witnesses, to avoid any surprises at the trial.
  • A court reporter is present during the whole session and makes a word-for-word record of the entire deposition.

 

Understanding Deposition

Generally, deposition takes place in the office of an attorney instead of the courtroom. The attorneys ask several questions to the witnesses on the events related to the case. Before starting the deposition, a court reporter directs an oath – the same as the one that the witnesses would take if they were in a courtroom. The court reporter is present during the whole session and makes a word-for-word record of the entire deposition. He/she will present a transcript later at the court during the trial.

The deposition can be attended by all the parties involved in the lawsuit. Usually, the attorneys ask questions that are broader than what is permitted in the courtroom. The deponent’s attorney or any party may raise objections to any deposition question. Generally, the objections raised can only be of two categories – one to object to the type of question being asked and the other to declare a privilege. However, the deponent is required to answer every appropriate question aloud on which a decision is made later on.

The duration of deposition can be short (e.g., a half an hour) or can extend up to a week or more, depending on the number of witnesses involved. Depositions can also be taken from the defendant, apart from the primary witnesses. Since the deponent is under oath during a deposition, providing false information or statement may carry criminal or civil penalties.

 

Deposition - Process

 

Deposition Law in the United States

In several regions of the United States, deposition is referred to as examination before trial. In some cases, deposition can take place even during or after trial. Almost all the civil cases in the US federal courts follow Rule 30 outlined in the Federal Rules of Civil Procedure (FRCP) for depositions. Some states follow the discovery rules set in the court rules, which differ from state to state.

As per Rule 30, there can be a maximum of ten deponents on each side, and the hours of deposition are limited to seven hours per deponent per day. The deponent is notified about the place and time through a subpoena. In the case when the key deponent is from the opposite party, a legal notice is sent to the key deponent’s attorney instead of a subpoena. If the deponent is a third party and not from either side (defendant or plaintiff), a subpoena is needed.

The jurisdiction in some states of the US may take depositions in criminal cases as well. The criminal cases in the U.S. follow Rule 15 of FRCP for depositions. The law related to deposition varies from state to state. Many states take a deposition to preserve the witness’s testimony for the trial.

Similar to the procedure followed in civil cases, a subpoena can be sent to the deponent if he/she does not belong to either party of the lawsuit. A legal notice is needed to be sent if the deponent is from the opposite party.

In case the deponent is not able to appear in the courtroom during the trial, the deposition can be considered the statement of the witness in place of the witness testifying. Several states require that if the deponent is a minor, the deposition must be videotaped.

 

Additional Resources

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