A legal deposition records a witness’ sworn, out-of-court testimony. Pretrial depositions are typically used for discovery purposes, and may be used in court as well.
Most people know the basic procedure for questioning and cross-examining witnesses at trial. Before trial, a lawyer subpoenas a witness, who must appear at trial. Sometimes, a lawyer gives a person a subpoena duces tecum, which requires the person to appear in court and bring documents, such as financial records, in his/her possession.
As a side note, most courts don’t allow witnesses to sit in the gallery and watch. They also don’t allow non-testifying witnesses, except parties, to attend depositions. Instead, most judges require most witnesses to wait in the hall, so they cannot line up their testimony with other witnesses. The rules are different for expert witnesses.
Before the witness sits in a chair, a court officer, usually a bailiff, administers an oath. Next, the witness answers questions (direct and cross-examination) from each lawyer, while a court reporter transcribes the proceedings. Afterwards, the judge releases the witness, who can then go home or watch the rest of the trial.
The procedure for a deposition’s out-of-court testimony is much the same. A lawyer sends a witness a subpoena or subpoena duces tecum. A court reporter transcribes the proceedings, and usually videos them as well. Only the attorney that subpoenaed the witness may ask questions. The other lawyer may object to questions, and a judge rules on those objections at a later date.
Primarily in civil cases. A few serious criminal cases, such as murders, may include depositions. But most courts only allow limited discovery, if any, in less-serious crimes, such as DUIs.
Depositions are very common in divorce, contracts, personal injury, and other civil cases. Civil lawyers typically use depositions for several purposes.
Discovery, a Legalese word we’ve used several times, is basically a pretrial information exchange process, during which both sides must put all their cards face-up on the table. Depositions force the other side to put more cards on the table.
For example, if Tom is attacked in a hotel parking lot, Tom’s lawyer may depose a security expert who testifies about the standard of care (what security measures the hotel should have used). If the hotel wants to question the security expert, the hotel’s lawyer must arrange a separate deposition.
Sometimes, depositions are preventative. Lawyers usually depose witnesses who may be unavailable for trial. Under Rule 32, a witness is unavailable if s/he:
The judge may also allow a lawyer to use a deposition in court, perhaps as part of trial presentation software, if said use is “in the interest of justice and with due regard to the importance of live testimony in open court.”
A witness with a terminal illness is the most obvious example. Lawyers also depose military servicemembers who are subject to deployment, or witnesses who plan to relocate far away from the court’s jurisdiction.
Prior inconsistent statements, like deposition statements, may be admissible as impeachment. Frequently, witnesses and parties in personal injury and other civil actions tell the same story over and over. As a result, the details blur.
Assume that, during his deposition, Ralph testifies that Dave drove a blue car. At trial, Ralph testifies that Dave drove a purple car. That’s a minor inconsistency. But it may be sufficient to undermine Ralph’s credibility.
On a related note, lawyers sometimes use depositions to refresh witnesses’ memories before they testify in court. But the rules are complex.
As discussed below, oral depositions are expensive. Deposing fringe witnesses, or re-deposing witnesses, forces a party to spend money which, in many cases, the party really doesn’t have. Parties can successfully object to such deposition requests in some cases.
We mentioned that special rules apply to expert witness depositions. For example, experts can listen to other witnesses testify and base their opinions on that testimony. Different states define “expert” in different ways.
Special rules also apply to party depositions. Rule 32(a)(3) states that an adverse party’s, designee’s, or officer’s deposition is admissible at trial for any purpose.
As mentioned, depositions are usually recorded on video and transcribed. The transcript is a Q&A-format document which also includes objections, formal statements (e.g. the deposition start and end times), and the jurat (notary’s authentication).
Some states have special discovery rules. For example, Texas requires parties to disclose certain information whether the adverse party asks for it or not. Texas also restricts the length of discovery and the objections counsel makes during depositions.
Sworn depositions are important tools in civil cases, and to a lesser extent criminal cases. Federal and state rules of civil and criminal procedure control the use of deposition testimony in court. A discovery plan that includes strategic depositions helps lawyers prepare effective cases. Using this testimony, and specifically presenting it to a jury in a compelling way, could be the difference between winning and losing at trial.
Usually, lawyers ask for depositions to preserve witness testimony, so they can use it to build stronger cases or impeach witness credibility. Many lawyers also use depositions to drive up the cost of litigation and force the other side to accept an unfavorable settlement offer.
Listen carefully to a lawyer’s question and answer that question as narrowly as possible. Don’t volunteer information and don’t answer questions you don’t understand.
A deposition subpoena is like a trial subpoena. Witnesses who refuse to give their dispositions, like witnesses who refuse to testify at trials, could face severe penalties for contempt of court.
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