Frequently Asked Questions – What Is A Deposition?
A deposition is a procedure whereby the attorneys representing parties to a lawsuit have an opportunity to question a person out of court but under oath. The person testifying in the deposition is referred to as the deponent. The deponent may be a party to the lawsuit or a witness to some aspect of the lawsuit. For example, the deponent may have witnessed a motor vehicle accident that is the subject of the lawsuit, the deponent may have information as to the injuries sustained by the accident victim, the deponent may have observed how the injuries sustained in the accident have affected the victim’s quality of life, or the deponent may have observed the injured party engaging in activities that are inconsistent with the injuries that the injured party claims to have sustained. The deponent may be a health care provider who has treated the injured person or an expert witness (i.e., doctor, chiropractor, economist, rehabilitation therapist, accident reconstructionist, etc.) who has formed an expert opinion at the request of one side.
A deposition is typically attended only by the deponent, the attorneys for all parties, and a court reporter. Although a party does have the right to attend all depositions, it is not always advisable that a party do so. The deposition is usually held in a conference room at the law office of an attorney for one of the parties or in a conference room at a court reporter’s office. However, when it is not practical for all parties to meet at the same location, as might be the case when an attorney or witness is located in a different city, the deposition can be conducted by telephone.
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The court reporter’s job is to make a written record of all that is said and done during the deposition, in much the same manner that a court reporter makes a record of what is said and done in a courtroom. The court reporter does this through a combination of recording devices and/or stenographer machines. After the deposition is concluded, the court reporter will then prepare a written transcript of the deposition. If the deponent was shown any documents during the deposition, or if the deponent asked to draw a sketch during the deposition, the documents and/or sketch will be attached as an exhibit to the deposition transcript.
Unless the deponent or his attorney has waived the right to read and sign the deposition, the deponent has the right to review the written transcript of his or her deposition. This is an important function. While court reporters are trained to record verbatim all that is said, they have been known to make mistakes. For example, the court reporter may have misheard the deponent’s answer or, in the court reporter’s haste to record an answer, he may have inadvertently left out a word or two. Where the court reporter has inadvertently left out the word “not,” the meaning of the answer can be very different. Thus, the opportunity for the deponent to read and sign the deposition is the deponent’s opportunity to correct any mistakes that the deponent may notice in the transcript.
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Some attorneys prefer to take video depositions. In the case of a video deposition, there is a videographer present in addition to the court reporter. The videographer’s job is to make a video and audio recording of the deposition, while the court reporter is charged with preparing the written transcript and managing the documents that are used in or created in the deposition. During a video deposition, the camera is trained exclusively on the deponent. Consequently, in addition to the deponent’s answers, the camera will record the deponent’s physical appearance and all of the deponent’s mannerisms and body language.
A deposition can serve several purposes in a lawsuit:
First, it provides an attorney with an opportunity to learn what the opposing party or a witness may have to say as to the facts of the case, or in the case of an expert witness, what opinions the expert may have to offer.
Second, a deposition provides an attorney with an opportunity to pin down the deponent’s sworn testimony. If the deponent testifies differently at a later date, the attorney has a written record of the deponent’s earlier testimony and can use the earlier testimony to attack the deponent’s credibility.
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Third, the written transcript of the deposition testimony provides the attorney with information that can be very useful in preparing an effective cross-examination for use at trial.
Fourth, a witness’ deposition testimony provides the attorney for the other side with advance insight as to the facts that the other side intends to present. The attorney for the other side can then use this information to locate other witnesses or other evidence with which to rebut the deponent’s testimony.
Fifth, a deposition can be used to create a record of a person’s testimony for later use at trial. This might be advisable or necessary if the deponent is elderly, ill or about to leave the jurisdiction of the court.
Sixth, a deposition provides both sides with an advance look at how a witness may conduct himself or herself on the witness stand. A defense attorney will make an assessment of the plaintiff’s demeanor as a witness as part of a written case evaluation that he submits to his insurance company client. For example, does the plaintiff come across as truthful and sincere or does it appear that the plaintiff is fabricating a story or exaggerating his or her injuries. A plaintiff’s attorney will study his client’s demeanor at a deposition to identify those apsects of his client’s demeanor that should be improved upon at trial.
A deposition is an important step in the preparation of a case for trial. If you are a plaintiff (i.e., the person bringing a lawsuit) and are being deposed, you should treat your deposition very seriously as it will have a significant impact on whether your case can be settled or must proceed to trial. The quality of the deposition that you give will also influence the amount of the settlement offer elicited from the other side. It is generally held that you cannot win the case with your own deposition, but you can lose your case with a poor deposition.
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