If you are a party to a lawsuit, you have heard your attorney talk about taking the deposition of the opposing party, an eyewitness or expert witness. You have also been told that the opposing party will take your deposition. Just what does that mean?
What is a Deposition?
A deposition is a discovery tool used by parties to a lawsuit. It is an opportunity for an attorney to “depose” a party, witness or expert, under oath, regarding their knowledge of the parties, knowledge of the facts and potential testimony at trial. The person who is giving the testimony is called the deponent. A notice of deposition and a subpoena are generally issued to the deponent to assure that he or she will appear at the designated time and place for the deposition. A certified court-reporter is always present and places the deponent under oath before the questioning begins. Court reporters use special machines that allow them to quickly “take-down” or type the questions and answers provided. They then transcribe the testimony and put it in booklet form called a transcript. The deponent has a certain amount of time to review the transcript and make any inconsequential changes or corrections. The transcript is then kept by the attorneys to use at a later time if necessary. Many times, a deposition is also preserved via a video. In instances involving video depositions, the Court and/or jury are able to see and hear the deponent’s tone of voice, mannerisms and facial expressions. These can be important in evaluating the credibility of the witness.
What is the Purpose of a Deposition?
There are several reasons why attorneys take depositions:
- To obtain evidence by asking probing questions to find out what the deponent knows or does not know. Deponents may be asked to identify photographs, documents or other pieces of evidence which are then numbered and attached to the deposition transcript.
- To have the deponent commit, under oath, to certain facts or admit some facts are outside their knowledge or scope of training or experience.
- To evaluate the demeanor and apparent credibility of a deponent in order to evaluate how a jury might view the trustworthiness of the witness.
When are they conducted?
Depositions are generally not taken until after other discovery tools, such as interrogatories, requests for admissions and request for production of documents have been used. This allows the attorney taking the deposition to ask questions that will force the deponent to expand on information provided in the earlier discovery responses and to clarify other discrepancies.
Where are they conducted?
A deposition does not take place in court. Instead, it usually takes place at an attorney’s office. If a party to the lawsuit is being deposed, the deposition generally takes place at the attorney’s office, representing that particular party. However, in instances where a deponent may be near death or have physical or emotional limitations, a deposition can occur within a home, hospital or nursing facility.
Who gets to ask questions?
The attorney taking the deposition will ask the deponent a series of questions related to the parties and the facts of the lawsuit. The Georgia Rules of Civil Procedure allow attorneys wide latitude to ask nearly anything that “may” be related to the parties or the issues in the lawsuit. The deponent must answer all proper questions and cannot ask questions in return; except for clarification.
How are they used?
If something happens to a witness between the time of the deposition and trial, courts will generally allow the witness’s deposition to be used at trial and read into the record from the witness stand as though the deponent was actually present. Another important use of depositions is for impeachment purposes at trial. This means that if witnesses testify differently at trial than they did at their deposition, the deposition testimony can be read to them, in the presence of the jury, and they will be forced to try and explain why they changed their story: “Were you lying then or are you lying now?” The answer to the question doesn’t matter, the damage to their credibility has already been done.
How Your Attorney Will Help You Understand Depositions
Georgia Trial Attorneys at Kirchen & Grant, LLC will spend time with you prior to your deposition so that you are comfortable and prepared to answer questions. We help you understand the process and thereby alleviate your natural tendency to be nervous. We will provide you a copy of our eBook, Deposition Checklists and Strategies. We will keep you informed of the dates and times other depositions that have been scheduled regarding your case. When you are a party to a lawsuit, you have the right to attend any deposition if you so choose. Contact us for more information.