deposition


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Deposition

The testimony of a party or witness in a civil or criminal proceeding taken before trial, usually in an attorney's office.

Deposition testimony is taken orally, with an attorney asking questions and the deponent (the individual being questioned) answering while a court reporter or tape recorder (or sometimes both) records the testimony. Deposition testimony is generally taken under oath, and the court reporter and the deponent often sign affidavits attesting to the accuracy of the subsequent printed transcript.

Depositions are a discovery tool. (Discovery is the process of assembling the testimonial and documentary evidence in a case before trial.) Other forms of discovery include interrogatories (written questions that are provided to a party and require written answers) and requests for production of documents.

Depositions are commonly used in civil litigation (suits for money damages or equitable relief); they are not commonly used in criminal proceedings (actions by a government entity seeking fines or imprisonment). A minority of states provide for depositions in criminal matters under special circumstances, such as to compel statements from an uncooperative witness and a few provide for depositions in criminal matters generally.

Before a deposition takes place, the deponent must be given adequate notice as to its time and place. Five days' notice is usually sufficient, but local rules may vary. Persons who are witnesses but not parties to the lawsuit must also be served with a subpoena (a command to appear and give testimony, backed by the authority of the court).

Depositions commonly take place after the exchange of interrogatories and requests for production of documents, because the evidence obtained from the latter often provides foundation for the questions posed to the deponent. Any documents, photographs, or other evidence referred to during the deposition is marked and numbered as exhibits for the deposition, and the court reporter attaches copies of these exhibits to the subsequent deposition transcript. Generally, at the outset of the deposition, the court reporter, who is often also a Notary Public, leads the deponent through an oath that the testimony that will be given will be true and correct.

The examining attorney begins the deposition and may ask the deponent a wide variety of questions. Questions that could not be asked of a witness in court because of doubts about their relevance or concerns about Hearsay (statements of a third party) are usually allowed in the deposition setting, because they might reasonably lead to admissible statements or evidence. A party who refuses to answer a reasonable question can be subject to a court order and sanctions. However, a party may refuse to answer questions on the basis of privilege (a legal right not to testify). For example, statements made to an attorney, psychiatrist, or physician by a client seeking professional services can remain confidential, and a client may assert a privilege against being required to disclose these statements.

After the examining attorney's questions are completed, the attorney representing the adverse party in the litigation is permitted to ask followup questions to clarify or emphasize the deponent's testimony. In litigation involving a number of represented parties, any other attorney present may also ask questions.

The court reporter often records the proceedings in a deposition on a stenographic machine, which creates a phonetic and coded paper record as the parties speak. Occasionally, an attorney or witness may ask the court reporter to read back a portion of previous testimony during the deposition.

Most modern stenographic machines also write a text file directly to a computer diskette during the deposition. In the past, arduous manual labor was required to turn the phonetic and coded paper copy into a complete hand-typed transcript. This is now rarely necessary because sophisticated computer programs can create a transcript automatically from the text file on the diskette. When the transcription is complete, copies are provided to the attorneys, and the deponent is given the opportunity to review the testimony and correct any typographic errors.

The deposition, because it is taken with counsel present and under oath, becomes a significant evidentiary document. Based upon the deposition testimony, motions for Summary Judgment or partial summary judgment as to some claims in the lawsuit may be brought. (Summary judgment allows a judge to find that one party to the lawsuit prevails without trial, if there are no disputed material facts and judgment must be rendered as a matter of law.) If motions for summary judgment are denied and the case goes to trial, the deposition can be used to impeach (challenge) a party or witness who gives contradictory testimony on the witness stand.

The advent of sophisticated and low-cost video technology has resulted in increased videotaping of depositions. Both sides must agree to the videotaping, through a signed agreement called a stipulation, and in some jurisdictions, the parties must also seek a court order.

A videotaped record of a deposition offers several advantages. First, a videotape shows clearly the facial expressions and posture of the witnesses, which can clarify otherwise ambiguous statements. Second, physical injuries such as burns, scars, or limitations can easily be demonstrated. Third, a videotape may have a greater effect on a jury if portions of the deposition are introduced at trial as evidence. Finally, a videotape can serve as a more effective substitute for a party who cannot testify at trial, like an expert witness from another state or a witness who is too ill to be brought to the courtroom. If a witness dies unexpectedly before trial, a videotaped deposition can be admitted in lieu of live testimony because the deposition was taken under oath and the opposing attorney had the opportunity to cross-examine the witness.

Another advance in technology is the ability to take depositions by telephone. Telephonic depositions are allowed under the federal rules and are acceptable in most states. The procedures for a telephonic deposition are the same as for a regular deposition, although it is preferable (and sometimes required) that the examining attorney state for the record that the deposition is being taken over the telephone. A telephonic deposition can occur with the attorneys and the deponent in three different sites; in any case, federal and state rules stipulate that the judicial district within which the deponent is located is the official site of the deposition.

Another technology used for depositions is videoconferencing, where sound transmitters and receivers are combined with video cameras and monitors, allowing the attorneys and deponents to see each other as a deposition proceeds. Videoconferencing makes the examination of exhibits easier and also helps reduce confusion among the participants that may result from ambiguous or unclear verbal responses.

Further readings

Balabanian, David M. 1987. "Medium v. Tedium: Video Depositions Come of Age." Practising Law Institute/Litigation 328.

Collins, Maureen B. 2002. "Taking the Deposition (and Getting It Right)." Illinois Bar Journal 90 (June): 323.

Malone, David M., and Peter T. Hoffman. 2001. The Effective Deposition: Techniques and Strategies That Work. rev. 2d ed. Notre Dame, Ind.: National Institute for Trial Advocacy.

Martiniak, Chris. 2002. How to Take and Defend Depositions. 3d ed. New York: Aspen Law & Business.

McElhaney, James W. 2003. "Deposition Goals: Develop a Plan to Get What You're After from Witnesses in Discovery." ABA Journal 89 (August): 30.

Montoya, Jean. 1995. "A Theory of Compulsory Process Clause Discovery Rights." Indiana Law Journal 70.

Zweifach, Lawrence J., and Gerson Zweifach. 1994. "Preparing to Take and Taking the Deposition." Practising Law Institute/Litigation 507.

deposition

n. the taking and recording of testimony of a witness under oath before a court reporter, in a place away from the courtroom before trial. A deposition is part of permitted pre-trial discovery (investigation), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition. If the person requested to testify (deponent) is a party to the lawsuit or someone who works for an involved party, notice of time and place of the deposition can be given to the other side's attorney, but if the witness is an independent third party, a subpena must be served on him/her if he/she is reluctant to testify. The testimony is taken down by the court reporter, who will prepare a transcript if requested and paid for, which assists in trial preparation and can be used in trial either to contradict (impeach) or refresh the memory of the witness, or be read into the record if the witness is not available. (See: deponent, depose, discovery)

deposition

noun compurgation, declaration under oath, disclosure, documentation, oral evidence, oral stateeent under oath, proof by a witness, solemn declaration, statement on oath, statement under oath, sworn evidence, testification, testimonial, testimonium, testimony, transcript of testimony, vouching, written declaration under oath
See also: abdication, affirmation, alluvion, confirmation, discharge, disclosure, dismissal, entry, record, removal, repudiation, statement, testimony

deposition

a statement made by a witness under oath and reduced to writing for subsequent use in court proceedings.

DEPOSITION, evidence. The testimony of a witness reduced to writing, in due form of law, taken by virtue of a commission or other authority of a competent tribunal.
     2. Before it is taken, the witness ought to be sworn or affirmed to declare the truth, the whole truth, and nothing but the truth. It should properly be written by the commissioner appointed to take it, or by the witness himself; 3 Penna. R. 41; or by one not interested in the matter in dispute, who is properly authorized by the commissioner. 8 Watts, R. 406, 524. It ought to answer all the interrogatories, and be signed by the witness, when he can write, and by the commissioner. When the witness cannot write, it ought to be so stated, and he should make his mark or cross.
     3. Depositions in criminal cases cannot be taken without the consent of the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl. Pand. 206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's Ab. Index, h.t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C 4.
     4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs that when the testimony of any person shall be necessary in any civil cause depending in any district, in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient, or very infirm, the deposition of such person may be taken de bene esse, before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor, or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause; provided that a notification from the magistrate before whom the deposition is to be taken, to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after being notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty and maritime jurisdiction, or other causes of seizure, when a libel shall be filed, in which an adverse party is not named, and depositions of persons, circumstanced as aforesaid, shall be taken before a claim be put in, the like notification, as aforesaid, shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid, shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. And the deposition so taken shall be retained by such magistrate, until he deliver the same with his own, hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid, of their being taken, and of the notice, if any given, to the adverse party, be by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court, that probably it will not be in his power to produce the witnesses, there testifying, before the circuit court, should an appeal be had, and shall move that their testimony shall be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court, which shall try the appeal, that the witnesses are then dead, or gone out of the United States, or to, a greater distance than as aforesaid, from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel or, appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, that nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem, to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken.
     5. The Act of January 24, 1827, 3 Story's L. U. S. 2040, authorizes the clerk of any court of the United States within which a witness resides or where he is found, to issue a subpoena to compel the attendance of such witness, and a neglect of the witness to attend may be punished by the court whose clerk has issued the subpoena, as for a contempt. And when papers are wanted by the parties litigant, the judge of the court within which they are, may issue a subpoena duces tecum, and enforce obedience by punishment as for a contempt. For the form and style of depositions, see Gresl. Eq. Ev. 77.

DEPOSITION, eccl. law. The act of depriving a clergyman, by a competent tribunal, of his clerical orders, to punish him for some offence, and to prevent his acting in future in his clerical character. Ayl. Par. 206.

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