Oral Depositions. Now that the written discovery stage is over, the parties will normally conduct oral depositions. A deposition is simply the pretrial testimony of a party or witness to the case. There are several advantages to taking depositions. First, the attorney uses a deposition as an opportunity to further investigate the facts and circumstances of a case without having to rely solely on the answers given in written discovery. In a deposition, the attorney has an opportunity to ask questions (and follow-up questions) just as would be permitted at trial. The second advantage to a deposition is that the attorney can better prepare for trial by learning what the testimony of a witness will be prior to the trial. The third advantage to taking a witness’ deposition is that the attorneys get an opportunity to meet the witness personally and assess their credibility. If the witness makes a good impression in a deposition, then the attorney will have to believe that the jury will likely find the witness to be credible. On the other hand, if the witness is rude, impolite, and unable to articulate their testimony properly, then the jury may find that witness to be less credible.
If you are a plaintiff is a lawsuit, you can almost count on your deposition being taken by the opposing attorney. This is routine. For instance, if you are claiming that you were injured in a car accident, the opposing attorney would want to take your deposition in order to find out more about your version of the accident and your injuries. The attorney will ask very detailed questions about how the accident happened including the time, place, and events surrounding the accident, as well as discussions you had with police officers and others at the accident scene. With regard to your injuries, the attorney would ask questions concerning your physical complaints and medical treatment, and would also ask about prior claims, injuries, or medical treatment you may have had in the past. These are all relevant issues in a personal injury case. I always tell my clients that, no matter how frustrating and intrusive you believe the deposition is, you must remain polite and courteous at all times. Do not become rude or argumentative. If you are polite and courteous, then you come across as more credible and confident in the merits of your case. If you are rude and combative with the other attorney, then the attorney knows that you may not make such a good impression on the jury should the case go to trial. How you come across in a deposition can be a very important factor in any potential for a pretrial settlement of your case.
Because depositions are intended as a pretrial investigative tool, the scope of a deposition is much broader than the questioning at trial. Therefore, just because an issue is brought up in a deposition does not necessarily mean that the issue will come up at trial. If the case goes to trial, then the matters contained in a deposition are subject to the same rules of admissibility as the other testimony and evidence at trial. During the deposition, an attorney may object to certain privileged matters or to protect against harassment of the witness. Other than those few circumstances, there are far less opportunities to object to testimony in an oral deposition.
The deposition is usually conducted at one of the attorneys’ offices and is taken before a certified court reporter. The deposition is taken under oath and the witness is subject to the same penalties of perjury as if the witness is testifying live in court. When the deposition is completed, the court reporter will transcribe the entire deposition into a transcript. That transcript is the official record of the deposition and may be read aloud at trial (subject to the rules of evidence and admissibility). The deposition may also be video-taped and the video may be shown at trial.
Oral depositions should not be confused with written depositions. A party may take the deposition of a witness by written questions rather than by oral questioning. Generally speaking, though, written depositions are reserved for those situations where the “witness” is asked to provide routine or mundane information or documents. Examples would include a written deposition to a medical records’ clerk to provide medical records, or to the Plaintiff’s employer in order to obtain employment information or documents.