Monday, 27 February 2017


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. 

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