In civil litigation, the law provides pre-trial legal procedures that allow both sides to gather information from the opposing party, called “discovery.” The information gathered during discovery can be helpful in allowing a party to evaluate his/her own case, or in settlement negotiations or if the case goes to trial.
One of the discovery tools a party can use is the “deposition.”
What is a Deposition?
A deposition is the taking of the sworn testimony of a witness. It basically consists of the asking and answering of questions under oath, in the presence of a court reporter.
Because the person who is testifying (i.e., answering the questions) is under oath, he is subject to the penalty of perjury. While this is the same as it would be if the person were testifying in court, depositions are not conducted in a formal courtroom.
Most often, depositions are taken in a conference room or in the offices of one of the attorneys involved in the case. They can either be recorded only or recorded and videotaped. Either way, although the setting is not as formal as it would be if you were in court, the testimony given is nevertheless as solemn as in a courtroom. Each deponent (person testifying) is swears under oath to tell the truth. This means that the testimony given at a deposition is subject to the penalty of perjury.
Why Take a Party’s Deposition?
You may be wondering why, if the deposition testimony is that which one would give in court, the parties don’t just wait until trial.
There are several reasons.
First, taking a person’s deposition gives counsel an opportunity to evaluate the witness’ demeanor. In other words, if your attorney takes the deposition of the defendant, your attorney will be looking to see what kind of witness the defendant will make when you do get to court. Is he believable? Sympathetic? Or is he scatter-brained and nasty? All of this helps your attorney decide how a judge or jury is likely to respond to the defendant. Of course, when the other side takes your deposition, defendant’s counsel is assessing the same things about you.
The other main reason why depositions are so effective, is because they help the parties prepare for trial. Because the deposition is sworn to under oath, before trial, each side knows what the other will be testifying to. This helps counsel prepare cross-examination, as well as their theory of the case.
Also, if the defendant changes his story at trial, your attorney can bring out that fact. Inconsistent testimony can damage a person’s credibility.
Depositions are powerful tools when it comes to litigating a case.
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