May I Take Your Deposition, Sir?

By: James Monahan


With the slew of legal jargons around, it gets easy to misuse technical and legal terms. Deposition is one these terms. Deposition, however, is not that hard to explain.

Deposition is the act of taking a witness’ sworn testimony outside of court. It can only be done in well-defined circumstances. Some jurisdictions recognize an affidavit as a form of deposition.

Usually testimonies are given at court. However, in some instances it is allowed outside of court if it follows prescribed procedures.

Depositions follow a defined procedure in American proceedings. This procedure is defined in Rule 30 of the Federal Rules of Civil Procedure.

The person to give a deposition is called a deponent. This person is usually notified to appear at the appropriate time and place by means of a subpoena. A court official must administer the same oath a deponent would take if the testimony were in court.

The court reporter then makes a word-for-word record of all that is by all parties during the deposition. Today, depositions are also recorded on audio. Also, depositions can now be videotaped.

The attorney who has ordered the deposition begins the questioning of the deponent. This procedure is also called ‘direct questioning’.

Nods and gestures cannot be recorded. Therefore, the witness is instructed to answer all questions verbally.

After the direct examination, the other attorneys may begin cross-examining the witness. The first attorney may ask more questions at the end. This process of questioning and cross-examining may sally back and forth until both parties are satisfied.

Depositions are useful in the sense that it gives all litigants in a contested case a preview of the evidence to come. This provides fairness in proceedings since the element of surprise, which is deemed unfair in trial, is eliminated.

Depositions also help preserve a witness' recollection of details while they are still fresh. This can be done even if the trial is a long ways off.

If the witness suddenly dies or becomes unavailable for court proceedings, his or her deposition will be considered part of the record and will be allowed to be read before the jury.

If the testimony belongs to a party or an organization, a deposition will be allowed in court. However, if the testimony belongs to a witness, the witness must appear in court. This is because the defendant has the right to face his or her accuser. If the defendant waives this right, a witness’ deposition will be allowed in court.

Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement, thus avoiding trial and preventing additional costs of litigation.

Deposition provides further legal means of documenting and allowing evidence in court.

The beauty of depositions; however, lies in the fact that this sort of testimony can be studied before court proceedings actually begin. This, therefore, can be used as another weapon in the legal arsenal of either prosecutors or defendants.

Knowing how depositions work and its legal implications is important since ignorance of such proceedings may work against any party.

Even lay people will come to benefit from a good knowledge of such, even if the only visible benefit is being able to understand what terms are being used the next time one watches a court drama on television.

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James Monahan is the owner and Senior Editor of DepositionAid.com and writes expert articles about depositions.

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