In civil lawsuits, one party sues another because they feel they have been harmed and the other side is at fault. Before the case goes to court, lawyers have a chance to get information from each other's clients so they can begin preparing their offense or defense. One way this is done is through a deposition.
A deposition is the opposing attorney's opportunity to ask questions of witnesses under oath and in front of their lawyers in order to find out more about what actually happened or why. Witnesses can be someone with knowledge about the case, such as a family member of someone who was at the scene of a car accident. The person suing, called the plaintiff, and the party being sued, the defendant, will have their depositions taken as well.
Some frequently asked questions about depositions include the following:
When someone is served a subpoena for a deposition do they really have to go?
Yes. This is delivered by a deputy from the sheriff's office or a process server. The subpoenaed witness must show up as requested or face serious consequences. For example, a capias may be issued, resulting in a court appearance explaining the absence to a judge. This usually results in a fine and possibly contempt of court. A notice for deposition may be mailed to a witness and is not a subpoena. If the witness does not show up, they will not be brought before a judge, but it gives the impression to everyone else involved in the case that the missing person is either not interested or is hiding something they do not want to be discovered.
Who will be there?
On the day of the deposition, attorneys from both sides will be there. Also present is usually a court stenographer, often referred to as a court reporter. This is an independent professional without bias who records what everyone says using a steno machine. Sometimes the deposition will be videotaped. If so, a professional legal videographer will be present with a camera and microphones. The camera will be pointed at the witness the whole time. Both the plaintiff and defendant will probably be present, but not allowed to ask questions. They are not allowed to speak during the proceedings unless they are the witness or do not have a lawyer and are representing themselves.
Does the witness have to answer all of the questions asked?
Yes, unless their attorney objects and tells them not to. The questions are asked to see if they lead to any important information about the case that has not already been disclosed.
How long does a deposition take?
They last until both attorneys have asked all of the questions they think they need to cover. For the opposing side, this is their only chance, so it may take a while. Some last as short as 20 to 30 minutes. Others may take all day, depending on the subject matter and knowledge of the witness.
Does the witness have to tell the truth since they are not in court?
Yes. All witnesses are placed under oath at the beginning of the deposition. This oath is the same as if it were taken in court before a judge. Answering dishonestly is considered perjury.
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