A Deposition in a civil lawsuit is the formal questioning of a witness, or a party to the litigation, under oath. It usually occurs at the office of the attorney who is doing the questioning. Every word of the questioning attorney, and the party being deposed, is recorded by a court stenographer and a complete typed transcript of the Deposition is prepared.
If you are being deposed or participating in a Deposition, there are usually two main purposes for the session:
A fact finding mission. The party being questioned is required to answer any question posed by the attorney that may lead to the discovery of admissible evidence. This is a very broad category regarding admissible questions, and, assuming they’re properly served with a Subpoena, if necessary, the witness is required to answer. Thus, even reluctant witnesses that may not want to get involved can be compelled to answer and to testify regarding their knowledge of the events at issue. (The attorney also gets the opportunity to observe and evaluate the demeanor of the witness, i.e. does the witness seem to be telling the truth, or do they appear to be overly nervous and evasive, based on their appearance while testifying.
To provide predictability regarding Trial testimony. The Deposition Transcript will be in the possession of the attorney if and when the case proceeds to Trial. Assuming that the attorney has asked the necessary questions in the Deposition, he or she can reasonably rely upon the witness giving the same testimony in court, at a Trial. If a witness to a car accident testifies at the Deposition that Party A ran a red light and struck Party B on July 1, 2018 at 2 PM, on a rainy day, the attorneys will reasonably expect the same testimony at Trial. If the witness at Trial testifies differently, he or she can be impeached with the Deposition testimony during cross-examination.
How the purpose of a Deposition is decided
The nature of a Deposition will depend on the type of underlying case that is before the court. For instance, in a Divorce proceeding involving a 20 year marriage, the Husband or Wife involved can be questioned regarding any and all events and issues that impacted the marriage during that entire period. In the case of the July 1st car accident noted above the testimony of the parties and or witnesses will focus on how the car accident occurred on that specific day.
In every case, the probability of winning or losing at Trial is often greatly affected by the Deposition testimony that preceded Trial, and the nature of any settlement of the case will often be determined. Thus, the Deposition(s) must be taken very seriously. Certainly if you are a party to the lawsuit, your attorney will want to meet with you before your Deposition to review the questions likely to be asked, your responses to the questions, and to discuss general rules you should follow in providing answers.