What’s a deposition?
Vail, CO, Colorado
Rather than your disposition, what is a deposition? A deposition is part of the process of legal discovery. And if you’ve been reading this column, you know that discovery is the means by which information is gathered in preparation for trial.
A deposition taking testimony of a witness, under oath, but not in open court. While the testimony is not taken in open court, the process is highly formalized. First, the witness must be “noticed” of the deposition. That is, formal papers must be served upon the potential witness, informing him or her where and when the deposition will take place and identifying the matter in which his or her testimony will be elicited.
The testimony is taken before a certified court reporter, who takes down, in shorthand form, a verbatim transcript of the proceedings. Increasingly, depositions may be recorded on video tape by a certified videographer in addition to the court reporter.
The testimony elicited at deposition has the same force and effect as if it had been given in a courtroom. In other words, having sworn to tell the truth, failing to do so is perjurious.
The witness is placed under oath and advised of how the proceedings are to be conducted, following which the interrogation begins. Interrogation, you might note, is sort of a daunting word that trembles with the resonance of its own internal force. To be “interrogated” smacks of heavy-handed police tactics. But it’s really a rather benign word that simply means to question. Thus, the witness is questioned about the matters which are, or may be, susceptible to his or her knowledge.
Generally speaking, interrogation at a deposition is more thoroughgoing than at trail. First, the standard for legal discovery generally, and depositions in particular, is that attorneys may inquire into any and all matters which “may lead to admissible evidence” at trial. This is, within permissible bounds, a fishing expedition. The attorneys are trying to find out just what the witness knows and cull those gems which may be admissible at trial.
The attorneys are, likewise, permitted to delve into the deponent’s background in order to establish the witness’ credibility and in order to establish whether he or she was susceptible of ascertaining the pertinent facts. If, to take a simple example, a witness is sight impaired, he or she may not have seen (or, at least not clearly) a critical event. Accordingly, it is relevant for the attorney to question the deponent about his or her medical history.
The second reason that depositions tend to run longer and to range more broadly than trial testimony is that, as a deposition does not involve the court, it does not squander what is always the limited time allotted for trial. If a trail is set for a week, a week is all you get. Accordingly, if the attorney thoroughly examined each witness on the stand, the trial time would soon be squandered. In a deposition, the attorney learns what among the witness’ account is relevant at trial.
A third reason why depositions traditionally run long is that the attorney doesn’t yet know what he’s got. Having once met and examined the deponent during the course of the deposition, however, when the same witness is called at trial, the lawyer has an understanding of what to expect.
A fourth, and likely not last, reason that depositions tend to consume what may seem an inordinate amount of time is that, as a general rule, the attorney gets one shot at a witness before trial. That is to say, except in highly unusual circumstances, a witness may be deposed only once. Accordingly, the attorney wants to make sure that he or she gets everything he or she can which may be important to the litigation.
Depositions are usually “noticed” by opposing counsel. What this means is that the witnesses favorable to the plaintiff will be deposed by the defendant’s counsel, and vice versa. Depositions are, however, “defended.” In this setting, if it is the defendant’s counsel who is conducting the interrogation, the plaintiff’s counsel will be present to defend the witness and to interject appropriate objections. Following the interrogating attorney’s examination, the defending attorney is permitted to cross-examine the witness.
Broadly, there are two kinds of oral depositions: percipient and expert. A percipient deposition is one taken of a person who, through his or her own senses (that is sight, hearing, smell, etc.) perceived facts relevant to the litigation. An expert deposition, on the other hand, is one taken of an expert in a field relevant to the litigation.
An example of a percipient witness would be one who saw a plane go down. In the same setting, an expert might be an avionics engineer who, after studying the accident report, renders his or her opinion as to the cause of the plane’s unscheduled descent.
In addition to oral deposition, depositions may be, and sometimes are, taken in written form.
One other little wrinkle is a deposition “de bene esse,” which comprises testimony to be read a the trial as though the witness were present in the court, when he or she is not. In most cases this occurs when the deponent is no longer available, usually, but not always, owing to ill health.
Deposition is a little slice of trial before trial and, along with documentary discovery, often forms the backbone of the party’s case.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 926.4461 or by e-mail at firstname.lastname@example.org
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