Deposition in Law: Definition & Example

Instructor: Kenneth Poortvliet
Before a trial starts, each side can seek information from the other so that the truth can come out at the trial. In this lesson, we will learn what a deposition is and how it is used.

I Want the Truth!

A trial is about getting at the truth so that a jury can decide the legal issues of the case. So what happens when you need to get information before the trial starts? One way is to hold a deposition.

Discover the Truth

A civil lawsuit has four distinct phases: pre-trial discovery, trial, jury deliberations and post trial appeals. The discovery phase allows each side to obtain information from the other. A deposition, which is an out of court, sworn oral testimony and is transcribed for use in court, is one of those tools an attorney can use in the discovery phase to gain information.

How Does it Work?

Typically, the party seeking the deposition would serve the person they want to depose with a notice of deposition if the person is an opposing party, or with a subpoena for a deposition if the person is a third party. At the deposition, a court reporter takes an official transcript of the session, and the deposed witness will have their attorney present. If a third party is deposed, that witness can have their own attorney if they choose, and both parties to the lawsuit are there with their attorneys.

For example, Jill is suing Jack for bruises she sustained when Jack accidentally knocked her down a hill. Jill's attorney sent Jack a notice of deposition to be taken at Jill's attorney's office. Jill's attorney was there to ask questions, and Jack brought his attorney. During the deposition, Jack mentioned his mother, Ms. Hubbard, in one of the answers. A few weeks later, Jill wanted to depose Ms. Hubbard, so she served her a subpoena instead of a notice of deposition as she wasn't a party to the suit. Ms. Hubbard brought her own attorney, and Jack and Jill were present with theirs.

What Questions can be Asked?

At trial, the standard for the admission of all evidence, including witness' testimony, is whether the evidence is relevant, which means any question that might tend to prove to the jury one of the legal elements of the trial. However, at a deposition, the standard is any question that might lead to relevant information. If there is a disagreement on the allowability of a question, a judge can determine whether it is allowable. They can bring it to the judge at a later time, or they can call a judge and get an in the spot ruling.

For example, Jack is deposing Jill, and Jack's attorney asks if she had had ever been fired from a job. Jill refused to answer on the basis of relevance. Jack's attorney said that her answer might lead to evidence that she got fired for fraud or stealing or some other reason relating to her character. Jill still refused so Jack's attorney got the judge on the line and the judge ruled that Jill had to answer.

Trial Strategy

Depositions can be used for another type of information gathering. A good attorney uses a deposition to gauge how a witness will react during a trial. Will the witness get angry or confused? Will they sound convincing? This information is just as important as facts derived from answers.

What Happens at a Deposition, Stays at a Deposition

Once a deposition is completed, a record is made by the court reporter, and the transcripts are sent to each party. A copy is not sent to the court because, unlike a trial transcript, a deposition transcript is not public record. However, the transcript can be used at trial for certain purposes:

  1. If a deposed witness is unavailable for trial. Death, illness or great distance might make the witness unavailable. Another rule is that if the presence in court of a witness would cause an extreme hardship on a third party. For example, a brain surgeon whose patient would be put at risk if the doctor attended would be such a scenario.
  2. Portions of the transcript can be used to impeach (show dishonesty) a witness by showing that their testimony in court was different than at the deposition.
  3. For any other reasons as allowed by the rules of evidence.

In all cases, any portion of the transcript can not be entered unless it would be admissible as if the witness was in court giving the testimony.

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