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 pr physician.
WHO IS PRESENT AT A 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 TAKEN?
The deponent is required to appear at the designated location and time appearing on the Notice of Deposition. This usually occurs in the conference room of a court house or an the attorney's office. The deposition will be recorded by a court reporter or, in some cases, with prior advance notice, the deposition may be videotaped. 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.
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.
As a direct result, as a deponent, consistency in your answers is extremely important. If the case goes to trial and the deponent takes the witness stand to testify, their deposition may be used to cross examine the witness. The opposing counsel's goal will be to point out inconsistencies in those statements to undermine the witnesses credibility.
The opposing side is taking your deposition for at least four reasons:
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.
Determining how a Party or Witness Acts under Pressure They want to see how you handle yourself in a tense testimony situation. How a
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.
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