When Depositions are Used

  • By:David Bate

Depositions are formal investigations used as a part of discovery during litigation in civil cases. The main purpose of deposition is to obtain an out-of-court sworn testimony from the witness in a case. This allows for all parties involved to learn about facts and evidence in a case, as well as preservation of the witness’ testimony, before the case goes to trial. To depose a party in a case, they must receive proper notice of the deposition. To depose a witness in the case that is either not a party or hesitant to testify, then a subpoena must usually be served on that person.

How do Depositions work?

  •         Depositions usually take place at the office of an attorney representing one of the parties or witnesses in the case.
  •         There will usually be a court reporter to transcribe the testimony and a camera to record the testimony.
  •         Usually the attorney who issued the deposition, his client, as well as the witness and the attorney of the witness, are present. All parties and their  attorneys, however, are permitted to attend.               
  •         The attorney who issued the deposition will give a “direct examination” where they will question the opposite party or witness about the case.
  •         Other attorney’s present are allowed to cross-examine the witness the direct examination.
  •         The attorney representing the person being deposed may object to some questions.

Discovery Depositions

Discovery depositions are best used to assess the testimony and credibility of the witness. It allows the attorneys to determine how questions will be answered in trial. Although a discovery deposition is not directly used in trial, it can be used to impeach a witness if their testimony during trial is inconsistent with the deposition testimony.

Records

During discovery, employment and medical records can be requested and obtained with a proper subpoena. Once a subpoena is placed on the record holder, they are required to photocopy the requested documents and send documents to the attorney who issued the subpoena. These records may have been discovered during a deposition, or they may be used during a deposition.

Evidence

If a witness is unable to give testimony because of a severe sickness or injury, then evidence deposition can be used. This is more common in personal injury cases. In such case, the physician will give testimony on behalf of the witness. The testimony will usually be recorded and used as evidence, then played at trial as if the doctor is present to testify. A discover deposition is usually required prior to this so that the attorneys are able to learn what will be said.

Depositions and other forms of discovery are very important, because they can determine the fate of the case. When approaching a deposition, it is best to prepare for potential questions and/or answers. Having an experienced lawyer and court reporter is vital to a successful deposition.


Thanks to our friend and contributors from Veritext for their insight into depositions and court reporting.

 

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