Who May Be Deposed?
Any party or potential witness may be called upon to appear for a deposition. The person being deposed is called the "deponent."
How Is a Deposition Scheduled?
To schedule a deposition, a party is served with a Notice of Deposition denoting the date and the time of the deposition. That Notice of Deposition may be accompanied by a subpoena or a subpoena duces tecum which also requires the person being deposed to produce certain documents listed as part of the deposition notice. If the deponent is not a party, the subpoena must be accompanied by a statement and/or check compensating the deponent for their mileage to the deposition. Some states also require that the non-party deponent is compensated for their time at a reasonable rate. This is particularly true where the deponent is an expert witness such as a business appraiser, psychologist or physician.
Who Is Present at the Deposition?
Present at the deposition are generally the parties, their counsel and, in some cases, a Guardian Ad Litem or an expert witness who will later evaluate the testimony of the deponent. A Court reporter will also be present to transcribe the questions and answers as they occur. No Judge is present to preside over the proceedings.
How Is the Deposition Conducted?
The deposition is commenced when the deponent is sworn in by the court reporter and swears to tell the truth under oath with the penalty for false information. After the deponent is sworn, the party or attorney that is taking the deposition will explain some basic rules regarding the deposition and how it will be conducted. Specifically, it is explained that the deponent will be asked a series of questions and that they must respond out loud to those questions without nodding or shaking their head, so that their answers may be properly transcribed by the court reporter. Additionally, the deponent is also reminded not to respond or interrupt until the complete question has been asked since it is difficult for the court reporter to take down the testimony if two parties are talking at once.
Why Is the Deposition Taken?
The deposition is a discovery tool and is performed for two primary reasons (1) to reveal information and/or documents relative to the issues in the case; (2) to elicit statements that may be used at trial. The opposing side is taking your deposition for at least four reasons:
Reason 1: Finding Facts and Information.
They want to find out the facts in your actual knowledge regarding the issues of the case. In other words, they are interested in what your story is now and what it is going to be at trial.
Reason 2: Determining how a Party or Witness Acts under Pressure
They want to see how you handle yourself in a tense testimony situation. How a witness handles himself or herself will tell an attorney how hard to press for settlement or trial. Witnesses who cannot handle testifying may not do well in trial and may therefore have less flexibility when settling the case.
Reason 3: Finding False Statements
They hope to catch the witness in a lie so they can show at the trial that the witness is not a truthful person and therefore, the testimony should not be believed.
Reason 4: Case Evaluation
The deposition will assist the other side in evaluating the case for settlement purposes. This is often the first and only opportunity the other lawyer has to see each critical witness before the case comes to trial. As a result, wherever possible, a deponent should answer the questions in an honest and straightforward manner so that the other lawyer will be impressed with the fact that the judge will know, if the case is tried, that they are completely honest and sincere.
What Kind of Questions Can Be Asked?
It is important to remember that discovery is very broad. As a direct result, discovery depositions are very broad. The other lawyer may ask a wide range of questions that he/she could not ask at trial. In a deposition it is only necessary that the questions have the possibility of leading to admissible information or evidence for trial. As a direct result, do not be surprised when the opposing attorney asks questions that you may think are irrelevant or intrusive. Many of the questions will ask about specific issues such as property division, spousal maintenance or custody issues.
What Information Will the Other Lawyer Seek?
The information that the opposing party or attorney will seek depnds on the particular facts of the case. You can expect inquiries in the flooing areas:
In most cases, the deposition will start with general questions about the deponent's personal facts and background including their name, address, education and profession and then their relationship to the parties or their role in the case itself.
In most cases, the deponent will be asked what whether they have spoken with anyone to prepare for their deposition. Consultations with counsel, however, are privileged and should not be disclosed. The deponent will also be asked what records they reviewed in preparation for their deposition testimony.
The person conducting the deposition will try to get all possible information regarding names, identity and addresses of any witnesses to assist them in investigating and preparing their case for trial. For any incidents a deponent relates, they can expect to be asked who else was present as well as their name and address.
If a deponent relates any incidents or events relevant to the issues of the case, they may expect the other attorney to explore those events or incidents in detail. As a result, the deponent should be as clear as possible regarding dates and times of events. If they are unsure, the deponent should not commit to a specific date or time since an error in that regard can be fertile ground for impeachment of the witnesses recollection at trial. As a direct result, the attorney will attempt to get the deponent to commit to exact dates, years, times, and facts. The purpose of these inquiries is induce the deponent to commit under oath to a specific set of facts so that they cannot say anything different at the final hearing, it can be useed against them.
The opposing attorney will ask questions to determine if there are any other relevant documents or items that may be relevant to the case. DO NOT bring and documents to the deposition unless they were specifically requested as part of the Notice of Deposition or Subpoena.