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> Frequently Asked Questions
What
is a Deposition?
Overview
A
deposition is testimony taken before trial under oath and preserved
for trial. Depositions are taken in almost every case. Depositions
are taken of the parties, percipient witnesses and expert witnesses.
Who is
Present at a Deposition?
Jack
Denove questioning a witness during a deposition
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The
following people are typically present:
The deponent (witness)
Attorney for the party taking the deposition
Attorney for the opposing party
Certified Shorthand Reporter
(often referred to as
a court reporter)
On
occasion, the following people may also attend:
An attorney for a non-party deponent
An interpreter for a non English speaking deponent
A videographer
Spouse or parent of the deponent
A discovery referee
How is
the Deposition Recorded?
A
certified shorthand reporter takes down in electronic shorthand
everything that is said by the deponent and the attorneys. If,
during the deposition, an attorney wants the reporter to read back a
question or answer, the reporter looks at his or her notes or the
computer screen and reads back the requested information.
Within a
couple of weeks after the completion of the deposition, or sooner if
necessary, the reporter prepares a bound deposition booklet from the
transcribed electronic notes. The deposition booklet is a verbatim
transcript of the deposition.
What is
the Purpose of Taking a Deposition?
A
deposition of an opposing party or witness has many purposes. The
following is a list of some reasons why depositions are taken:
Pin down the party or witness
Eliminate surprises at trial
Discover the defenses of the opposing party
Evaluate the credibility of the deponent
Obtain information from non party witnesses
Preserve testimony of witnesses who may be unavailable at trial
Challenge the testimony of the party or witness
Evaluate the strengths and weaknesses of your case and your
opponent's case
How is
the Deposition Used?
Before
trial, the deposition can be a valuable tool to convince the
defendant that its case is not strong and it should settle the case.
Passages from the deposition can be put into the demand package or
mediation brief that establishes this point. To learn more about
these settlement methods, go to
Is There Any Alternative to Going to Trial?
If the
opposing party files a summary judgment motion, deposition passages
can be quoted in opposition to the motion to demonstrate that the
motion should be denied.
Information may have been revealed during the deposition that the
attorney believes should be excluded at trial. Passages from a
summary of the deposition transcript an be used in motions in limine
to persuade the judge to exclude the evidence.
At trial
a deposition is most frequently used during cross-examination to
impeach the trial testimony of a witness. To learn more about
cross-examination, go to
What is Cross-Examination? As an example, if at trial, the
witness states that he saw the car enter the intersection when the
traffic light was red, but in the deposition he said he didn't know
what color the light was, or the light was amber or green, the
attorney can ask the judge for permission to read the contradictory
testimony to the jury. At that time, the judge will often instruct
the jury that "a deposition is testimony of a person taken before
trial. At a deposition, the person is sworn to tell the truth and is
questioned by the attorneys. You must consider the deposition
testimony that was read to you in the same way as you consider
testimony given in court." CACI 208
(CACI are the approved
jury instructions from the Judicial Council of California. Jury
instructions are read to the jury by the judge and establish the law
the jury must follow in deciding the case. A partner of Cheong,
Denove, Rowell & Bennett has been formally recognized as one of the
attorneys who assisted the task force in the preparation of these
jury instructions.)
In light
of this instruction and because impeachment can affect the
credibility or believability of a witness's testimony, it is
important that the attorney prepare his or her client for the
deposition.
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Portions of a deposition that have been
read to the jury can be enlarged and displayed to the jury during
closing arguments. For related information about depositions and
other discovery tools and how they are used at trial go to
What Happens Before, During and After a Lawsuit is Filed?
Cheong, Denove, Rowell & Bennett
has the extensive resources to handle the most complex legal
matters, yet is small enough to offer individualized service to our
clients.
At Cheong,
Denove, Rowell & Bennett we believe the more you know,
the better choice you will make.
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