The definition of a legal deposition is the taking of testimony under oath outside of the courtroom with no judge present. Depositions are an integral part of an attorney's preparation for a trial - also know as pre-trial discovery, or fact finding. Sometimes an affidavit, a sworn, written, signed, and witness statement, is used as a deposition.
There is a procedure for taking a civil deposition, wherein the person being questioned is notified that they must appear at a given time and place (often in the lawyer's office (not during the trial) by means of a subpoena, at which time the individual is sworn to “tell the truth, the whole truth, and nothing but the truth.” What they say is recorded by a court reporter, or is audio or videotaped so that the exact testimony is preserved. Because non-verbal cues can't be recorded, all questions are answered in full. Depositions are taken by direct examination from attorneys with subsequent cross-examination, followed by re-direct and re-cross, a repetition of the process. Attorneys may object to questions, usually up to twice. Further objections may be voiced during the trial phase of the proceedings. Criminal depositions are used when witnesses cannot appear at the trial, and vary from jurisdiction to jurisdiction; they may not be taken without the consent of the defendant. Depositions are useful to verify or disprove another witness's testimony, or to jog the memory of a witness who may have forgotten an important point. Trial Attorney, Stratton Horres describes the use of an oral deposition as “the most valuable tool in an attorney's arsenal.” He goes on to say that depositions are used to find out the truth and to expose any attempts on a witness's part to change his or her testimony. When an oral deposition is written up, it is then notarized as a sworn statement of the truth. If it is found that the deposition contains lies, criminal charges of perjury can be pursued.
Legal depositions are exchanges between two parties – the attorney and the witness, or expert witness. Therefore, just as there is a correct way to take a deposition from the attorney's standpoint, there is a correct way to give a deposition, from the witness's viewpoint. Witnesses play a crucial role in legal proceedings, therefore, there are right and wrong ways to present testimony in a deposition. Mistakes that are made include:
Waiving the right to read the written document before signing off on its authenticity.
Not conferring with counsel to review the questions being asked.
Attempting to remove any potentially damaging information.
Volunteering too much information.
Losing one's temper.
The most important thing a witness can do is to simply tell the truth as clearly and directly as possible.
For attorneys, there are a number of resources, including Web sites and legal publications that provide information on how to take depositions. Such resources include questions to ask, checklists, and deposition forms for a wide variety of situations, such as motor vehicle accident cases, premises and product liability, and medical witnesses and doctors' testimony checklists in bodily injury cases.
By Eve Visconti