A deposition is part of the pre-trial discovery process in US civil proceedings. Under the Federal Rules of Civil Procedure, plaintiffs with a strong suspicion that they were wronged can file a lawsuit, even if they do not have solid evidence of their case.
The discovery process is all about an interchange of information, and bringing the truth, in so much as an objective truth can be achieved, to light.
As part of this process, a plaintiff can legally force a defendant whom they believe has wronged them under civil law to give them evidence, with which they can build the case that the wrong was committed.
They can also get statements from witnesses or other parties pertinent to the building of the case. The mechanism by which this information is gathered during the discovery process is by deposition.
A deposition consists of a witness’s sworn testimony about the events they witnessed, or on which they can speak with authority, that may be pertinent to a case. Depositions are usually collected out of court and used to build the background to a case.
Usually, depositions are both initiated and supervised by the attorneys for each side in a case. While the deposition testimony is sworn under an oath the process of taking a deposition from a witness will usually be conducted under fairly informal circumstances.
Those present will normally be the person giving the deposition (the deponent), attorneys for each side, and someone qualified to administer oaths.
In previous generations, there may well have been a stenographer present, but increasingly these days, the deposition is recorded electronically, meaning there is usually little need to include a stenographer in the 21st century, though some places will still use one to make doubly sure the deposition testimony is recorded faithfully.
At the deposition, all interested parties can question the witness, so as to get the fullest picture necessary of the events to which they were a witness.
While all relevant questions are allowed, the lawyers present are not allowed to coach the witness in any of their answers – to do so could essentially lead to a led or misleading testimony being recorded.
Similarly, the lawyers have only limited abilities to object to any deposition questions at this stage, because it is not clear at this point what may or may not be relevant to the witness’s testimony – and to the case as a whole.
Under normal circumstances, deposition evidence is regarded as hearsay, and so cannot be admitted in court – so for some witnesses, making their deposition will be the last time they are involved in the procedure, and they will not have to take the stand and have their evidence cross-examined in person.
For others, they will be called and cross-examined, though rarely on the basis of their deposition testimony alone. Usually, witnesses will be asked to explain what they witnessed afresh if they are called.
Under normal circumstances.
There are three circumstances though in which deposition testimony can be considered more than hearsay.
1. If a witness says something in their deposition that is against their own interest – if a witness cries “Ya got me, I did it, I did it, I slandered him OK, leave me be!”, it stops being hearsay in quite a remarkable hurry.
2. If a witness under cross-examination contradicts what they’ve said in their sworn deposition testimony, it becomes a point in the case, because reality accepts no do-overs.
3. And if a witness is unavailable to give evidence at the trial – if, for example, he now inconveniently sleeps with the fishes – then deposition testimony becomes more than hearsay, as it cannot be clarified, examined, or defended by the witness in person, so the deposition testimony they gave under oath is regarded as being their only official evidence on the case.
So far, we’ve been talking about oral depositions – where the witness answers the attorneys’ questions, usually in one of the attorney’s offices, rather than at the courthouse.
Even though those conversations are either typed up or recorded, they’re still regarded as oral depositions, because they are a direct ‘from the horse’s mouth’ record of the events as far as the witness remembers them.
There is a second form of deposition – the written deposition. This is in some ways more straightforward and in lots of ways cheaper than oral depositions. They can be filled in remotely, without lawyers present, for one thing.
Unfortunately, there is also a strictness to the written deposition process that can often make it less useful than the oral deposition process.
Whereas in the oral deposition, lawyers can ask supplementary or follow-up questions, so they can get as full a picture as possible of the events to which the witness was a party, in a written deposition, the witness has control over how much or how little detail they use in responding to the questions, and it is impossible to necessarily tell how much they know that’s of relevance or potential value.
That’s why, rather than a simple set of questions, most written depositions are given in response to something called an interrogatory.
An interrogatory is a list of questions the witness must answer, but while in oral depositions, a lawyer is not allowed to coach the witness, with an interrogatory, a lawyer is able to help the witness to answer the interrogatory.
The point of this is not to create a legal fiction or flim-flam. It is to craft a more full, informative, and ultimately a clearer picture of events as the witness remembers them.
It is also worth noting that an interrogatory is not allowed to be open-ended. Under the Federal Rules of Civil Procedure, each side of a case is only allowed to ask 25 questions in an interrogatory.
The discovery process in any case is governed by the particular set of rules that apply in any given jurisdiction. The rules change across the country, so the law as it applies to depositions too is subject to difference between jurisdictions.
Any lawyer working within a given jurisdiction will be familiar with the rules in their jurisdiction, but it’s worth being aware that the rules that apply where a case is brought and heard might be different from those in the jurisdiction in which the plaintiff usually resides.