A deposition is: “The testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court” (Black’s Law Dictionary). “A written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine; or upon written interrogatories.It is the giving of notice to the adverse party which especially distinguishes a deposition from an affidavit” (Black’s Law Dictionary). “The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial” (Nolo’s Law Dictionary). “Witness’s sworn out-of-court testimony… used to gather information as part of the discovery process and, in limited circumstances, may be used at trial” (Cornell Law School).
Before the trial, Alex’s lawyers ensured that they obtained a deposition from all of the key witnesses.
Brian’s accident eventually led to his wife’s death. Before her death, Brian’s lawyer scheduled deposition to ensure that they preserved her testimony for use in court. The lawyer also obtained a deposition from Brian so that his account of the accident would be preserved before the trial that was months away. These testimonies helped ensure that Brian won his case and received a fair settlement for his losses.
Other Important Information
Lawyers take depositions for several purposes:
- to preserve the testimony of any witnesses to the injury since the trial may be months or years away
- to obtain the witness of someone who will not be present at the trial because of death, serious illness, or distance from the court
- to ensure that both sides know all of the facts going into the trial
Both parties come when the witness gives the deposition. They can both question the witness but cannot lead him in his testimony. Lawyers typically cannot object to most questions in this situation. Injury lawyers typically gather depositions from the defendant, witnesses, and healthcare providers. You can find more specifics about the federal deposition procedure at Cornell Law School’s website or Utah’s Utah’s Rules of Civil Procedure. The judge usually will not admit a deposition at trial because it is second-hand evidence (i.e. hearsay). However, the judge will admit it under three exceptions:
- when one party admits something against her interest
- when the witness’ deposition contradicts their testimony at trial
- when the person who gave the deposition cannot attend the trial (Cornell Law School).
Photo courtesy of the Israel Government Press Office. The image is in the public domain.