Deposition

A deposition is testimony made under oath and taken down in writing by an authorized officer of the court, typically in an out-of-court setting and before trial. Deposition is an integral part of the discovery process, which enables both sides involved in a legal case to learn all the pertinent facts and discover the other side’s view of the case, so as to map out an effective legal strategy. Depositions are usually taken from key witnesses, but can also involve the plaintiff or defendant, and often take place in an attorney's office rather than the courtroom.

The individual making the deposition is known as the deponent. Since the deponent is under oath, false statements can carry civil and criminal penalties.

In Canada, the deposition process is called “examination for discovery.”

As with any discovery proceeding, the primary objective of a deposition is to give all parties involved in the litigation a fair preview of the evidence and level the field as far as information is concerned, so that there are no unwelcome surprises at trial. A deposition also preserves the testimony of the witness if it is taken in a relatively short time period after the occurrence of the crime or accident, since a trial may be months away and the witness’s recollection of event may get blurred with the passage of time.

A deposition would be required, for instance, if one were to witness an accident that resulted in a liability lawsuit. All parties involved in the case are permitted to attend the deposition. The deponent will be asked a number of questions related to the lawsuit by the attorneys on both sides. A court reporter who is present accurately records every question and answer in the deposition, and produces a transcript that can later be used at trial. Due to the exhaustive questioning that is characteristic of depositions, they may last several hours. Under the Federal Rules of Civil Procedure and its state equivalents, a deposition must take a maximum of seven hours per day for each deponent. In Canada, examinations for discovery are limited to 7 hours per party conducting the examination.

Questions asked at a deposition can be more wide-ranging than those that may be allowed in courtroom proceedings. For example, a witness to an automobile accident may be asked a series of questions such as:

• Background – Does the witness have any prior convictions? Is he or she related to the parties involved in the case? Does he or she have physical limitations such as poor eyesight?
• Scene of the accident – Is the witness familiar with the scene? Does he or she know traffic controls and posted speed limits at the scene?
• Accident observations – How far was the witness from the scene of the accident? Did he or she have a clear view of the occurrence? What was the estimated speed of each vehicle?

As depositions are a critical part of the litigation process and can significantly affect the outcome of a trial, legal professionals strive to adequately prepare their clients for depositions. While deponents are required to be scrupulously honest in their answers to questions, the objective is to avoid common mistakes made by deponents. These mistakes may include saying too much, thereby providing information that can be used to advantage by the opposing side. Another common mistake is making guesses or assumptions, since deponents are required to stick to the facts and not speculate or theorize.