Terms
Deposition
Depositions are an integral part of the legal process, and the days when the requirements were a single deposition transcript have long since passed. A deposition is when a person, accompanied by an attorney, answers questions put by the other side's attorney regarding the facts of the case. Depositions are under oath and generally take place in an attorney's office with a court reporter present and recording everything.
Attorneys have found that actually showing portions of a deposition to the court can be quite beneficial. With depositions, the court can actually see the deponent's expressions and body language, hear the deponent's tone of voice, and observe pauses and uncertainties. In this manner, the court can then create an informed conclusion based on all of this data. These benefits don't exist when reading a page out of a transcript.
The following components are typically found in a deposition, unless otherwise stipulated. The proper officer, or any person authorized to administer oaths by the laws of the United States, will put the deponent (person testifying) under oath. The testimony must be given before the officer as well. The officer, or someone under his or her direction, must record the testimony. Under no circumstances may the officer be an attorney of any of the parties nor a relative or employee of a party or party's attorney, nor have any financial interest in the action.
Under the new federal rules, the deposition may be recorded by audio, audio/visual or stenographic means. Courts are increasingly tolerating, and even encouraging, audio and video recording of deposition testimony. Several courts have described acceptable procedures for both audio and video recordings. For each deposition, you should weigh the advantages and disadvantages of video or audio recording against the advantages and disadvantages of stenographic recording. Electronic recordings may be more difficult to edit for use as evidence than written transcripts but will have a greater impact on the judge and jury at trial and will aid the fact-finder in weighing credibility. You should also consider the significant influence electronic recordings may have on the tone and procedure of the deposition.
Telephone depositions can save enormous expense in some situations and can be effective for discovering some types of objective evidence, such as accounting information. Because of the difficulty of reading and controlling the witness by telephone, however, complex depositions which involve subjective matters or which challenge a witness' credibility are not likely to be effective by telephone.
If you aren't planning on showing any portion of a deposition to the court, having a videotaped deposition available to the trial team is invaluable for these same reasons, refreshing your memory even years after the deposition was taken. Depositions can prove an invaluable source of evidence and facts to solidify your case.
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