What is a deposition?

During the time of a lawsuit, all parties have the right to conduct Discovery. Discovery is a formal investigation to find the facts related to your case. Pre-trial access to the information found during the discovery process allows the parties to use facts and potential evidence to better decide what strategies they will use and to help avoid further delays once the trial begins.

Discovery can come in several forms including subpoenas, a court-ordered demand for relevant documents, a written questionnaire, called an interrogatory, or a deposition, which is a formal oral statement taken before the trial and under oath.

A deposition has three real purposes: 1 – to find out what a witness knows and 2 – to preserve testimony. It may take some time to go to trial, and people’s memories are fleeting at best. A deposition is usually recorded and there is also a court reporter present to take down everything that is said. Another critical purpose is to evaluate the witness—is the person credible? Likeable? Will the person make a favorable impression in front of a jury or judge?

The intent of discovery and the deposition is to make sure everyone knows the facts prior to the case and that no one is surprised once the witness takes the stand. The surprise witness at the end is stuff of Hollywood.

Obviously, a deposition isn’t about getting the responses you want from an opposing witness, but it gives you a clear understanding what you are working with so you can prepare for trial in a meaningful way and give you a chance to not only know where your strengths are, but where the weaknesses are and how to either avoid or rebut them at trial.

Depositions usually take place in your attorney’s office. Each witness is asked a series of questions related to the facts and events of the case. While your attorney is present, the attorney has a limited role in a deposition. The attorney may object to questions, but for the most part, the person being deposed must answer all appropriate questions, which can be broader than what may be asked in court. Whether or not questions and answers are admissible is a question for later since a judge is not present at a deposition.

Depositions can be as short as a few minutes or may span over the course of several days for more involved cases. As is the case at any time you are asked questions, be careful to listen to the question and only answer the question that is asked. You will meet with your attorney prior to the deposition to discuss what may be asked and what information you must provide and what if anything you are not obligated to provide. You also have to remember that depositions are made under oath, which means that false statements will have both civil and criminal penalties.

Depositions are not always required, but in a lot of cases, they are an important tool in understanding all of the events from the viewpoints of all of the witnesses. If you are expected to be a witness, you should familiarize yourself with what may be involved in the deposition and you may also want to contact a private attorney who could guide you and preserve your own interests.

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