Deposition (law)

In law, a deposition is the out-of-court testimony of a witness that is reduced to writing for later use in court or for discovery purposes. In many countries, depositions are given in courtrooms. In the United States and Canada, they are usually taken elsewhere. A minority of U.S. states, like New York, refer to the deposition as an "examination before trial" (EBT). Deposition is the preferred term in U.S. federal courts and in the majority of U.S. states, like California, because depositions are sometimes taken during trial in the certain unusual situations, such as when the plaintiff is dying from a terminal illness.

Depositions are a part of the discovery process in which litigants gather information in preparation for trial. Some jurisdictions recognize an affidavit as a form of deposition. The routine practice of obtaining the oral evidence of a witness before trial is foreign to common law jurisdictions such as England, Australia and New Zealand. Having the right to pose oral questions to opposing parties in litigation before trial developed in Canada and the United States in the nineteenth century.

United States

Civil procedure

In cases pending in United States federal courts, depositions are carried out under Rule 30 of the Federal Rules of Civil Procedure. About 35 states use versions of the FRCP in their state courts. Other states have discovery rules that are set out either in court rules or statutes, and which vary somewhat from one state to the next.

If the desired witness (the deponent) is a party to the action, then notice may be given to that person's attorney. If the witness is not a party to the lawsuit (a third party), then a subpoena must be served on him/her if he/she is reluctant to testify. The person to be deposed (questioned) at a deposition, known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. To ensure an accurate record of statements made during a deposition, a court reporter is present and typically transcribes the deposition with stenographic equipment. Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well.

Depositions usually take place at the office of the court reporter or in the office of one of the law firms involved in a case. However, depositions are also sometimes taken at a witness's workplace or home, or in a nearby hotel's conference room.

Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. Some jurisdictions allow stenomask technology in lieu of traditional stenographic equipment, although many jurisdictions still prohibit stenomask because of its disconcerting effect on most lawyers and witnesses (the mask makes the court reporter look like Darth Vader).

Attorneys for the deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning of the deponent (this is referred to as "direct examination" or "direct" for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross.

During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. All other objections, in particular those involving the rules of evidence, are generally preserved until trial. They need not be made at the deposition. California is the notable exception; under the California Civil Discovery Act as enacted in 1957 and heavily revised in 1986, most objections must be given on the record at the deposition (and must be specific as to the objectionable nature of the question or response) or they are permanently waived.

As with oral examination at trial, depositions can become heated at times, with some attorneys asking harassing questions to provoke witnesses into losing their tempers, some witnesses giving evasive answers, and everyone using foul language. In extreme situations, one side or the other may ask the reporter to mark the record, then may suspend the deposition, demand a rush transcript, and file an emergency motion to compel a response, for a protective order, or for sanctions. Some courts have magistrates or discovery commissioners who are on call for such contingencies, and the parties are supposed to use them to referee such disputes over the phone before resorting to filing motions.

Under FRCP 30(d)(1) and its state counterparts, a deposition normally must take place for no longer than seven hours on one day, unless otherwise stipulated by the parties or ordered by the court. This means that the deposing party who knows that a deposition will go longer than one day must either ask the deponent to stipulate to more time, or, if the deponent is uncooperative, go before the court and file a motion for a longer deposition. Again, California is the major exception, in that it has no default time limit; depositions can theoretically proceed indefinitely, or at least until the deposition becomes so obviously excessive and burdensome that the deponent is able to move for and obtain a protective order.

After the deposition, the transcript is then published in the form of a hardcopy booklet, which is provided to the deponent as well as to any party to the suit who wishes to purchase a copy. The booklet will have the case caption (the name of the court, case number, and names of the parties) on the front. Inside, the pages have line numbers along the left margin, so that the parties can precisely cite testimony by page and line in later court documents. Timestamps are inserted into the margin if a videorecording is being made. An index is automatically generated by the stenographic system's software and included in the back. Most court reporters can also provide a digital copy of the transcript in ASCII and RealLegal formats.

The chief value of obtaining a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence. The process provides a "level playing field" of information among the litigants and avoids surprises at trial (traditionally regarded as an unfair tactic). Another benefit of taking depositions is to preserve a witness's recollection while it is still fresh, since the trial may still be months or years away. When a witness's testimony in open court is inconsistent with that given at deposition, a party can introduce the deposition to impeach (or contradict) the witness. In the event a witness is unavailable for trial (usually because they are deceased, seriously ill, or live hundreds of miles away), their deposition may be read or played before the jury and made part of the record in the case, with the same legal force as live testimony. In some states, stenographic, audio, or video records of depositions can be offered into evidence even if the witness is available.

Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional costs of litigation. Accordingly, while most depositions are not videotaped, opposing counsel may use the opportunity to get an impression of the witness's affect and appearance, because these are telling factors as to how that person will present in front of a jury.

Criminal procedure

In the United States, depositions may be taken in criminal cases, for reasons that vary between jurisdictions. In federal criminal cases, Federal Rules of Criminal Procedure Rule 15 governs the taking of depositions. Each state has its own laws which govern the taking of depositions.

Most jurisdictions provide that depositions may be taken to perpetuate the testimony of a witness, that is, preserve their testimony for trial. 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 examination before trial can be given to the other side's attorney, but if the witness is an independent third party, a subpoena must be served on him/her if he/she is recalcitrant. This occurs when a witness may not be able to testify at trial. The deposition of the witness is taken and, if the witness is unable to appear at trial, the deposition may be used to establish the witness' testimony in lieu of the witness actually testifying. Regarding depositions to preserve testimony, the Confrontation Clause of the Sixth Amendment to the United States Constitution establishes a constitutional right of the defendant to be present during the deposition and to cross-examine the witness. The defendant may waive this right.

Some jurisdictions provide that depositions may be taken for purposes of discovery. In these jurisdictions, the defendant does not have a constitutional right to be present, although such a right may be established by statute.

A defendant in a criminal case may not be deposed without his consent because of the Fifth Amendment right to not give testimony against oneself.

Other jurisdictions

In Canada, the process is nearly identical but is called an examination for discovery.. In Australia and England, there is no right of oral examination of opposing parties in civil litigation. The discovery process is usually completed after pleadings and requests for particulars by exchange of affidavits of documents and sometimes written questions and answers (interrogatories). Often affidavits are exchanged before trial, but the first opportunity to question the opposing party in most lawsuits is at trial.

The extraordinary contrast between civil procedure where there are no examinations for discovery, for example in Australia and England, and North American practice can be discerned by reading an extract from the New South Wales Law Reform Commission Report in 1978. The process is described in detail and aimed at an Australian audience. It is clear that the entire process is completely foreign to Australian lawyers as the author witnessed an examination for discovery in Toronto and outlines in intricate detail the rules in Ontario as they were in effect at that time .

The process is considered in Canada to be time consuming and expensive when conducted without limits. As a result, Rule 31.05.1 of the Ontario Rules of Civil Procedure has, since January 1, 2010, limited examinations for discovery to 7 hours per party except with consent of the other parties or the leave of the Court. . British Columbia will implement similar reforms on July 1, 2010, although the new Rule 7-2(2) can be read in two ways, it appears to be that each party can examine each other party for a maximum of 7 hours unless the court orders otherwise. . The alternative reading is that each party is only to be examined for a maximum of 7 hours.

See also

• subpoena duces tecum
• subpoena ad testificandum
• Section 1782 Discovery

External links

• Law.Jrank.com - Discovery, Types Of Discovery Devices