Deposition (law)

A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination. A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination. Depositions developed in Canada and the United States in the nineteenth century. Depositions are a part of the discovery process in which litigants gather information in preparation for trial. In nations that do not provide for depositions, testimony is usually preserved for future use by way of live testimony in the courtroom, or by way of written affidavit. Some jurisdictions recognize an affidavit as a form of deposition, sometimes called a 'deposition upon written questions.' While in common law jurisdictions such as England and Wales, Australia, and New Zealand recording the oral evidence of supporting witnesses ('obtaining a statement') is routine during pre-litigation investigations, having the right to pose oral questions to the opposing party's witnesses before trial is not. Deposition is the preferred term in U.S. federal courts and in the majority of U.S. states. Some states also refer to a deposition as an examination before trial (EBT). However, in unusual situations depositions are sometimes taken during or even after trial. In almost all cases pending in United States federal courts, depositions are carried out under Rule 30 of the Federal Rules of Civil Procedure. About 35 states use versions of the FRCP in their state courts. Other states have discovery rules that are set out either in court rules or statutes, and which vary somewhat from one state to another. According to FRCP Rule 30, the number of depositions is limited to 10 depositions per side (i.e. plaintiffs and defendants), with deposition of each deponent limited to 1 day of 7 hours (unless specified otherwise in Local Rules of the District). The person to be deposed (questioned) at a deposition, known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. Frequently the most desired witness (the deponent) is an opposite party to the action. In that instance, legal notice may be given to that person's attorney, and a subpoena is not required. But, if the witness is not a party to the lawsuit (a third party) or is reluctant to testify, then a subpoena must be served on that party. To ensure an accurate record of statements made during a deposition, a court reporter is present and typically transcribes the deposition by digital recording or stenographic means. Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well. Depositions usually take place at the office of the court reporter or in the office of one of the law firms involved in a case. However, depositions are also sometimes taken at a witness's workplace or home, or in a nearby hotel's conference room. Generally the deposition is attended by the person who is to be deposed, their attorney, court reporter, and other parties in the case who can appear personally or be represented by their counsels. Any party to the action and their attorneys have the right to be present and to ask questions. Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim digital or stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. Some jurisdictions allow stenomask technology in lieu of traditional stenographic equipment, although many jurisdictions still prohibit stenomask because of its disconcerting effect on some lawyers and witnesses. Attorneys for the deposing litigant are often present, although this is not required in all jurisdictions. The attorney who has ordered the deposition begins questioning of the deponent (this is referred to as 'direct examination' or 'direct' for short). Since nods and gestures cannot be recorded, the witness is instructed to answer all questions aloud. After the direct examination, other attorneys in attendance have an opportunity to cross-examine the witness. The first attorney may ask more questions at the end, in re-direct, which may be followed by re-cross. During the course of the deposition, one attorney or another may object to questions asked. In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked. Objections to form are frequently used to signal the witness to be careful in answering the question. Since the judge is not present, all other objections, in particular those involving the rules of evidence, are generally preserved until trial. They still can be made sometime at the deposition to indicate the serious problem to judge and witness, but the witness must answer the question despite these objections. If the form objection is made, the opposite party still has the right to re-phrase the same question and ask it again. Indeed, in Texas, lawyers were so aggressively using objections to indirectly coach their witnesses on the record that all objections outside four narrow categories are now prohibited and making such prohibited objections waives all objections to the question or answer at issue. California is the major 'outlier' on deposition objections; under the California Civil Discovery Act as enacted in 1957 and heavily revised in 1986, most objections must be given on the record at the deposition (and must be specific as to the objectionable nature of the question or response) or they are permanently waived.