Depositions can often be daunting. Whether a party to the action, or just a witness to certain facts, depositions are an intimidating but integral part of the discovery process. But what actually happens at a deposition? This blog post will explore the roles of the parties to a deposition, and give some suggestions on best practices for those being deposed.
What is a Deposition?
A deposition is an out of court, sworn statement about facts known by a witness. The people that generally attend a deposition are a court reporter, the attorneys for the parties to the action, and the person actually being deposed, call the deponent. Each of these individuals plays a vital role in the deposition.
The deponent is the person who is actually being deposed. This means that they have some information or knowledge that is pertinent to the case at hand. The deponent is very often a party to the case, such as a plaintiff or defendant. This is not a requirement, however, and the deponent can also be a fact witness. For example, if a person witnesses a car accident, they may be deposed to ask questions on exactly what they saw, who was involved, or anything the parties may find important to determine liability or damages. If a person has knowledge about a case, there is always a chance they will need to be deposed.
The attorneys’ role in a deposition is twofold. Attorneys taking the deposition are there to ask questions of the witness. Their main goal is to get the witness to state certain facts, on the record, that help their case. In a breach of contract case, for example, the defendant’s attorney will want the plaintiff to admit that they breached the contract first. This would be a defense to certain damages, and support the defendant’s case. On the other hand, the plaintiff’s attorney would attend the deposition to ensure the defendant’s attorney does not go “out of bounds” by asking questions that violate the New Jersey court rules. These are called objections. The attorney for the deposed party will also have the opportunity to ask questions, usually to help provide context to certain damaging information.
The court reporter, an entirely neutral party, is there for the sole purpose of transcribing exactly what is said. The court reporter is responsible for ensuring that all statements are on the record, and recorded as accurately as possible. This is important, as the entire purpose of a deposition is to use the statements given by the deposed at trial, or in a possible motion for summary judgment.
What Happens At a Deposition?
As discussed, the purpose of a deposition is to gather certain facts from a witness that has knowledge regarding either the facts of the case or an expert witness with specialized knowledge. What will normally happen is the attorney taking the deposition will ask questions to gather information pertinent to their case. They can present exhibits as evidence, or simply relate back to information previously given over the course of discovery. Once the deposing party has finished, the other party has the opportunity to ask questions, usually to clarify certain points made by the deponent.
What Objections are Allowed?
Most people have seen the very dramatic objections on television or in movies. These may have their place at trials, but in depositions the parties are very limited in their objections. In New Jersey, there is a limit to the types of objections allowed at depositions. These are for violations of privileged information, objections to the form of the question being asked, or a limitation entered by a prior court order.
Objecting to the form of a question is an incredibly broad objection. This does not necessarily mean the question asked is improper, but that the form it is asked is vague, unclear, confusing, or incorporates multiple questions into one. This impacts the witnesses ability to answer a question accurately. It is important to note that objections to form of a given question solely preserve the objection for a later date. This means the witness is still required to respond to the question, though the asking attorney will often rephrase the question to make it clearer to the witness.
An objection to a question that may violate privilege is slightly different. This states that a privileged relationship exists between the deponent and another person. Examples of a privileged relationship include attorney-client privilege, doctor-patient privilege, spousal privilege and priest-penitent privilege. These relationships are considered protected by the courts, and, unless the deponent waives that privilege, the communication is protected. This objection stops all questions that fall within that line of questioning.
An objection to a line of questioning based on a previously entered court order also stops any questions relating to that question from being answered. If a court enters an order stating that any questions relating to a party’s medical history is not permitted, the deponent’s attorney may stop their client from responding to any questions relating to that history.
How Long do Depositions Last?
One of the most common questions a deponent has is how long will they be in the deposition? This entirely depends on the case and the facts the deponent is aware of. A deponent with a limited scope may be deposed quickly, a deponent with specialized knowledge, or a party to the suit, may be deposed for as long as it takes to get all pertinent information. This could mean the deposition can last days if it is necessary to acquire all necessary facts of importance to the case.
Conclusion
Being fully prepared for a deposition is critical for any type of case. Having the support of professional attorneys with years of experience is essential to ensure your rights are protected.
