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.
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.