I’m confident that most people who regularly read our blogs have, at one time or another, seen one of our attorneys refer to a “deposition”. It occurs to me that while many of you may be familiar with the term, you may not be quite as familiar with what it actually involves. In the few paragraphs that follow, I’ll try to give you a basic understanding of what happens in a deposition, and why a deposition is taken in the first place.
A deposition is started when an attorney for one of the parties to a lawsuit files a Notice with the Court, indicating that he/she wants to depose a certain party or witness. In most cases, the attorneys will work together to agree upon a date for the deposition that causes the least scheduling problems for all concerned. When the date and location of the deposition have been agreed upon, everyone shows up as provided for in the Notice.
The attorneys for each party to the suit will be present, and sometimes (though not very often) the parties themselves will make an appearance. There will also be a court reporter present, who is responsible for taking down every single word that is uttered by anyone in the room. (I am always amazed at the ability of a court reporter to accurately take down what is being said, when often times 2 or even 3 people are talking at the same time.) Finally, in many cases there will also be a videographer in attendance, who is actually digitally recording the entire process. If that happens, the camera is always focused on the witness, and never on anyone else in the room. Everyone else who is present will have a microphone to make sure that the audio is captured as well.
Once everyone gets settled in and we are confident that all of the equipment is working as it should be, the court reporter will administer the oath to the witness, and the deposition begins. The attorney who schedules the deposition will start the process, usually beginning by informing the witness about what will be happening in the hope of making him/her relax a bit. The attorney then starts asking questions, seeking to develop whatever information he was seeking when he scheduled the deposition. There are very, very few limits on what an attorney is permitted to ask a witness in deposition, and for that reason it’s tough to predict how long they may last. I’ve seen depositions last 10 minutes, and I’ve seen them last 10 hours or more. Everything depends upon the complexity of the case, the cooperation of the witness, and the experience of the attorney doing the questioning.
So, what is the point of all of this? I always tell clients that there are three reasons that depositions are taken. First, the lawyer wants to “size up” the witness. He wants to see what kind of an impression the witness will make. Is he a nice guy that a jury will like? Or is he an arrogant jerk that will cause a jury to turn against him? Second, the lawyer wants to find out everything that witness knows about the issues at hand. The only way to do that is to question the witness at length, sometimes asking the same question in 2 or 3 different ways, so that you can be sure to uncover every last bit of information. Finally, the attorney wants to “lock in” the witness’ testimony for the record. That way, if the case goes to trial and the witness testifies inconsistently with the testimony he gave in his deposition, the attorney can use the deposition transcript to make the witness look bad. The questioning would go something like this:
Q. “Mr. Witness, do you recall when I took your deposition back in August of last year?”
A. “Yes, I do.”
Q. “And do you remember when I asked how familiar you were with the scene of the accident, and your answer was ‘not very’? If you need to check, that question appears at page 17 of your deposition transcript, at line 20.”
A. “Yes, I see it.”
Q. “And you just told this jury that before this accident, you drove by the scene at least two times every day! In August you said you were not familiar with the scene, and now you’re telling us that you drove it daily! So, which answer are we to believe?”
I think you get the point. Deposition testimony can be a powerful tool to make a witness appear to have a faulty memory at best, or to be a liar at worst.
Depositions are a routine part of the litigation process. Our attorneys here at Bordas & Bordas have handled literally thousands of them throughout our respective careers. We will make sure that you are properly prepared and properly protected throughout the entire process.