Your lawyer just sent you a letter informing you of your upcoming deposition or you just received a subpoena to appear for a deposition. This guide answers the most frequently asked questions regarding the deposition process in Florida. The deposition process is governed by Florida Rule of Civil Procedure 1.310.
What is a Deposition?
A deposition is a recorded statement under oath. The deposition can be recorded by a stenographer (court reporter) or video.
Location of the Deposition
Generally, the deposition will be taken in the County in which the lawsuit is pending. However, if the witness is in another part of the state or out of state, the deposition will be taken in the witness' locale.
Who can be Deposed?
A deposition can be taken of any person with knowledge or information regarding the case. This can include parties to the lawsuit, fact witnesses, expert witnesses, or corporate representatives.
Purpose of a Deposition
The purpose of a deposition can vary depending upon the witness that is being deposed. For instance, if the person being deposed was a witness to a car accident, the lawyers will generally ask questions regarding the witness' observations of the accident.
If the witness is a party, the deposition has at least three purposes: (1) locking in the party's testimony regarding the facts in controversy; (2) determining what type of witness the party will make before a jury; and (3) testing the party's credibility.
Scope of the Deposition
The scope of discovery that can be asked in a deposition is very broad. A lawyer is entitled to ask questions regarding any matter, which is not privileged, and is relevant to the subject matter of the lawsuit.
Witness' right to review the deposition transcript
If and when the deposition is transcribed to paper, the witness has a right to review the transcript unless she waives that right. The witness is entitled to make changes to form and substance of the testimony; however, she must provide a reason for the change. The witness must sign the form (errata sheet) with the changes.
Uses of Deposition Testimony
Deposition testimony has a number of uses in a lawsuit, which include:
o Evidence in support of or against a motion pending before the judge.
o As a tool to help foster a settlement.
o In lieu of the witness actually coming to trial if the parties agree or the witness lives
more than 100 miles from the county in which the case is pending.
o To impeach a witness that testifies differently in trial than he testified in deposition.
Does an independent witness need an attorney at the deposition?
The witness is entitled to retain and have an attorney present at the deposition. The decision of whether to hire an attorney to attend the deposition is an individual decision. Many times depositions are taken of witnesses to determine if they need be brought into the lawsuit as a party. Under these circumstances, it is advisable for the witness to hire an attorney.
In Florida, the deposition is a very common discovery tool in litigation because it has many uses. Many lawyers take the process for granted and do not adquately prepare their witnesses, which can negatively impact the outcome of the case.