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Cancel Submit. Your feedback will be reviewed. Your browser doesn't support HTML5 audio. What is the definition of deposition? After the direct examination, other attorneys in attendance have an opportunity to cross-examine the witness.
The first attorney may ask more questions at the end, in re-direct , which may be followed by re-cross. During the course of the deposition, one attorney or another may object to questions asked.
In most jurisdictions, only two types of objections are allowed: The first is to assert a privilege and the second is to object to the form of the question asked.
Objections to form are frequently used to signal the witness to be careful in answering the question. Since the judge is not present, all other objections, in particular those involving the rules of evidence , are generally preserved until trial.
They still can be made sometime at the deposition to indicate the serious problem to judge and witness, but the witness must answer the question despite these objections.
If the form objection is made, the opposite party still has the right to re-phrase the same question and ask it again. Indeed, in Texas , lawyers were so aggressively using objections to indirectly coach their witnesses on the record that all objections outside four narrow categories are now prohibited and making such prohibited objections waives all objections to the question or answer at issue.
California is the major "outlier" on deposition objections; under the California Civil Discovery Act as enacted in and heavily revised in , most objections must be given on the record at the deposition and must be specific as to the objectionable nature of the question or response or they are permanently waived.
As with oral examination at trial, depositions can become heated at times, with some attorneys asking harassing questions to provoke witnesses into losing their tempers, some witnesses giving evasive answers, and occasional use of profane language.
In extreme situations, one side or the other may ask the reporter to mark the record, then may suspend the deposition, demand a rush transcript , and file an emergency motion to compel a response, for a protective order, or for sanctions.
Some courts have magistrates or discovery commissioners who are on call for such contingencies, and the parties are supposed to use them to referee such disputes over the phone before resorting to filing motions.
In extreme circumstances where the relationship between the lawyers, parties, or witnesses has totally broken down, the court may require the use of a discovery referee who will have authority to sit in on depositions and rule immediately on objections as they are presented, or may order that all further depositions take place in court in the presence of a judge.
Parties can bring documents to the deposition and ask document identification questions to build a foundation for making the documents admissible as evidence at trial, as long as the deponent admits their authenticity.
The court reporter and all parties in the case are usually provided a copy of the documents during the deposition for review. In recent years, developments in litigation technology has allowed the use of paper documents to be replaced by electronic documents and exhibits in the deposition.
The deponent, court reporter , and all parties receive digital official exhibits or courtesy copies. Combined with live transcript feed technology and legal videography , digital exhibit technology has made participation in remote depositions more functional and popular.
Under FRCP 30 d 1 and its state counterparts, a deposition normally must take place for no longer than seven hours on one day per each deponent, unless otherwise stipulated by the parties or ordered by the court.
This means that the deposing party who knows that a deposition will go longer than one day must either ask the deponent to stipulate to more time, or, if the deponent is uncooperative, go before the court and file a motion for a longer deposition.
California was the major exception, in that it had no default time limit; depositions can theoretically proceed indefinitely, or at least until the deposition becomes so obviously excessive and burdensome that the deponent is able to move for a protective order.
However, in January , the California legislature amended the previous rule to fall in line with the federal rule, now requiring that depositions will typically be limited to seven hours of total testimony.
After the deposition, the transcript is then published in the form of a hardcopy booklet, which is provided to the deponent as well as to any party to the suit who wishes to purchase a copy.
The booklet will have the case caption the name of the court, case number, and names of the parties on the front.
Inside, the pages have line numbers along the left margin, so that the parties can precisely cite testimony by page and line in later court documents.
Timestamps are inserted into the margin if a video recording is being made; in the event the witness is unavailable for trial, the parties or the court will use the timestamps to identify admissible segments which a video editor will stitch together to present to the jury.
Finally, a concordance is automatically generated by the stenographic system's software and included in the back of the booklet.
The court reporter keeps a copy of the documents provided to the deponent during the deposition for document identification questions, unless digital document and exhibit technology is employed, in which case the deponent and all parties receive the official exhibits in real time.
Deponent has right to read and sign the deposition transcript before it is filed with the court. Deponent cannot change his statements on the deposition transcript, but under rule 30 e they can correct on additional " errata sheet" any mistakes in the deposition transcript shortly after the testimony has been typed and bound.
The errata sheet allows the deponent to make any modifications that make "changes in form or substance," giving the deponent the option to alter their record from the original transcript.
Issues may arise where a party attempts to make substantive changes to testimony through errata sheets. The chief values of obtaining a deposition, as with any discovery proceeding, is to give all litigant parties in a contested case a fair preview of the evidence, and to provide support documents for further trials and dispositive motions.
The process provides a "level playing field" of information among the litigants and avoids surprises at trial traditionally regarded as an unfair tactic.
When a witness's testimony in open court is inconsistent with that given at deposition, a party can introduce the deposition to impeach or contradict the witness.
In the event a witness is unavailable for trial usually because they are deceased, seriously ill, or live hundreds of miles away , their deposition may be read or played before the jury and made part of the record in the case, with the same legal force as live testimony.
In some states, stenographic, audio, or video records of depositions can be offered into evidence even if the witness is available.
Deposition of the opposite party is often used to produce self-incriminating statements from the deponent, also document identification questions can make exhibits admissible for hearings and summary judgment motions.
Sometimes, after a number of witnesses have been deposed, the parties will have enough information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at a compromise settlement , thus avoiding trial and preventing additional costs of litigation.
Accordingly, while most depositions are not videotaped, opposing counsel may use the opportunity to get an impression of the witness's affect and appearance, because these are telling factors as to how that person will present in front of a jury.
Furthermore, deposition transcripts are frequently submitted in support of motions for summary judgment as evidence that there is no triable issue of fact.
The moving party may use transcripts to argue that even if all the testimony given at deposition was given again at trial, no reasonable factfinder could find in the opponent's favor on a material issue of fact.
The rationale is that generally, a witness must give consistent testimony on all material issues of fact both at deposition and at trial unless there is a very good reason for changing one's answers , or else the inconsistencies can and will be used to impeach his credibility.
In some United States jurisdictions, depositions may be taken in criminal cases, for reasons that vary between jurisdictions. In federal criminal cases, Federal Rules of Criminal Procedure Rule 15 governs the taking of depositions.
Each state has its own laws which govern the taking of depositions. Most jurisdictions provide that depositions may be taken to perpetuate the testimony of a witness, that is, preserve their testimony for trial.
This occurs when a witness may not be able to testify at trial. The deposition of the witness is taken and, if the witness is unable to appear at trial, the deposition may be used to establish the witness' testimony in lieu of the witness actually testifying.
Regarding depositions to preserve testimony, the Confrontation Clause of the Sixth Amendment to the United States Constitution establishes a constitutional right of the defendant to be present during the deposition and to cross-examine the witness.
The defendant may waive this right. Some jurisdictions provide that depositions may be taken for purposes of discovery.
In these jurisdictions, the defendant does not have a constitutional right to be present, although such a right may be established by statute.
Some jurisdictions require that because of the sensitive nature of taking a deposition of a minor, it must be videotaped.
A defendant in a criminal case may not be deposed without his consent because of the Fifth Amendment right to not give testimony against oneself.
In Canada, the process is nearly identical to that followed in the United States, but the proceeding is called an examination for discovery. The process is considered in Canada to be time-consuming and expensive when conducted without limits.
As a result, Rule In Australia, and in England and Wales , there is no right of oral examination of opposing parties in civil litigation, save that in England and Wales the pre-litigation discovery process allows for each party to make written questions and the answers to those questions will be relied upon during if there is any discrepancy in the oral evidence given in court.
Oral examination is typically completed after pleadings and requests for particulars by the exchange of affidavits of documents and sometimes written questions and answers interrogatories.