During the discovery phase of a court case, there are a
variety of means available for getting information from the other side. As covered previously, these include written
questions, requests for documents or to inspect things or places, and requests
for admissions. In addition to those
discovery tools, a party may also take depositions of other parties or third
party witnesses.
Depositions are a very important discovery device. They provide an opportunity for questioning a
witness live and in person. The examination is under oath. This means it has
the same force and effect as if it were happening in court. There is a court reporter present to take
down and make a formal record of the proceedings.
A deposition operates on many levels at once. First it is a way to get information, i.e. to
get the witness’s story. Follow up
questions can be asked. The attorney
defending the deposition is limited in their ability to coach the witness. The
witness is then pinned down as to what they have to say on the covered
topics. If they testify differently
later, that difference may be brought out into the open, showing that the
witness has a poor memory or is lying.
At the same time the witness can be evaluated for
credibility. How solid is their memory? How good was their opportunity to observe in
whatever took place. Do they look honest? Some witnesses just do not present very well. And that has an impact on credibility. Or perhaps the witness is credible and
sympathetic. That is important information
to have when evaluating the case.
Depositions are also the means for obtaining testimony
and/or documents from third parties.
There are time limits on how long a deposition may last.
Generally a person is only subject to one complete deposition. So it is
important to prepare well and take a comprehensive deposition. There may not be another chance. Similarly, if your side is giving a
deposition it is important to meet with counsel and prepare for it. This is not something to be done “cold”.
Depositions are an important part of the discovery
process. It allows a different way of
getting information from other parties or witnesses. It will be less filtered than the information
obtained in writing from opposing counsel. And having this first hand interaction with witnesses is very important
for evaluating the case.
