How To Conduct A Deposition
Welcome to lawsuitforms.org! In this post we will discuss how to conduct a deposition. A deposition is the taking of witness testimony outside of the courtroom. They are generally scheduled well in advance of a trial, so litigants can discover what, exactly, a witness will say if they end up testifying in court. Witnesses testify under oath and are subject to penalties for perjury just as if they were testifying in court. Their testimony is also recorded by a court reporter.
Should I Schedule a Deposition?
The process for scheduling and conducting a deposition is not difficult. However, conducting depositions can be costly as you will have to hire a court reporter and you will need to order transcripts of the deposition if you plan on introducing any of the testimony as evidence at trial or in a motion. Given that many self-represented litigants have limited financial means, depositions may be unrealistic for some. Furthermore, deposing third parties may not be necessary as you are free to talk about your case with them at any time. Assuming they are friendly and are willing/able to testify at trial, there is no need to formally depose them. If they will not be available to testify later you may be able to take their deposition and then use that testimony as evidence at trial, but you definitely need to check the relevant rules in your state regarding ‘perpetuation of witness testimony’.
The only time you would need to depose a third party is if they are an uncooperative witness, in which case you will need to subpoena them to force them to appear, just as if you were subpoenaing them for trial. You will also need to send the opposing party a notice of deposition and allow them to attend if they so desire. The actual deposition procedure is the same, regardless of who is being deposed. Rather than deposing third parties, however, you will most likely want to depose the opposing party (or employees of the opposing party) to gather more information about your case.
Scheduling Depositions of Opposing Parties
Although depositions can generally be held any time after an answer has been filed, it is standard procedure to issue and respond to Requests for Production first and then conduct a deposition, as the documentation produced often raises many questions that a party will want answered. The procedure for scheduling the deposition of a party to the litigation and a third-party witness is somewhat different, but the process of actually deposing them is the same. If you want to depose the opposing party or an employee of the op-posing party, you probably do not need to worry about sending them a subpoena or witness appearance fee.
Scheduling depositions usually begins by both parties informally discussing a proposed schedule of who they want to depose. Once a schedule is worked out, a ‘Notice of Deposition’ should be sent to the opposing party or their attorney. Note that you will need office space to conduct the deposition. If you do not have an office and the opposing party is represented by an attorney, you should be able to use their office space. If not, you will have to find a location that is acceptable to both parties. Your local library, law library and/or courthouse may have office space available. If you hire a court reporter from a larger company, they may have discounted or even free conference room space as well.
*Due to Covid-19, many depositions are being conducted remotely via video conference. The process is mostly the same, but make sure that all parties involved have agreed to the remote deposition. You will also need to work out a plan for the witness to be able to view any exhibits you want to introduce (whatever court reporter you hire to record a remote deposition should be able to offer suggestions in this matter).
Hiring a Court Reporter
You will also need to hire a court reporter who will record everything that is said at the deposition. A simple internet search will reveal court reporters working in your area. The cost to hire a court reporter is usually between $60-70 per hour. However, this does not include a transcript of the proceedings, which can often cost much more ($3-4 per page is common, with a two-hour deposition comprising approximately 80 pages). This means that the total cost for a 2-hour deposition would likely be around $450. Note that you may not need to order a copy of the transcript if you feel that the testimony of the party did not significantly help or harm your case and you are not planning on using it as an exhibit. Likewise, if you feel the party will not significantly change their story when they testify at trial, having a copy of the transcript may not be necessary. In either of those cases, you would only have to pay for the court reporter’s time.
Conducting the Deposition
On the day of the deposition, you should come prepared with a list of questions to ask the person being deposed (the deponent). When the deposition begins, the court reporter will administer the oath (wherein the deponent swears to tell the truth under penalty of perjury). You will then ask your questions. When deposing a witness, keep in mind the following:
- Do not interrupt or talk over the witness and remind them to try and refrain from doing the same thing.
- Keep your questions precise and tailored to the issues at hand. Remember, you only need to know information that proves or disproves any claim or defense.
- Do not be intimidated if the deponent’s attorney objects to your question (more on this below).
- Do not be afraid to ask follow-up questions or ask for clarification.
- You can take a break anytime you want, but you should wait until the witness has answered the current question. If you want to step out or confer with the deponent’s attorney, simply ask the court reporter, “Can we go off the record, please?” The court reporter will then stop recording everything and you are free to resume the deposition whenever everyone is ready.
When you are done asking your questions, the deposition is over (although sometimes opposing counsel will want to ask a few clarifying questions on the record). The court reporter will ask if you want to order a transcript. It is generally best to hold off until you are sure you need a copy. You can always contact the court reporter any time after the deposition to order a transcript. Just make sure you give them plenty of time to prepare the transcript if you have a trial or arbitration date approaching.
If you are deposing someone, you will most likely want to ask them about some of the documents you have received or produced in discovery. Therefore, you will need to have a list of exhibits ready to submit. You will need to bring three copies of each exhibit (one for the deponent/court reporter, one for the deponent’s attorney, and one for yourself). If the deponent is not represented by an attorney, only two copies of each exhibit are necessary. Each exhibit should be marked and paginated (Exhibit 1, page 1, etc.).
When you are ready to have the deponent review an exhibit, simply tell them you would like them to review the following document labeled as “Exhibit X” and hand a copy to the court reporter (who will put their own label on it and then hand it to the deponent) and the deponent’s attorney.
If the deponent has an attorney, they may offer objections throughout the course of the deposition. Do not be too concerned. Most deposition objections relate to the form of a question. That is, if the question is confusing, it could lead to an answer that isn’t clear. The opposing attorney may object to the form of the question and ask you to state it a different way. You should take their concerns seriously and if you think you can be more clear, you should try to restate your question. That said, do not be afraid to demand an answer from the deponent if you feel your question is perfectly clear and important to the matter at hand. The opposing attorney should then instruct their client to answer to the best of their ability.
In rare circumstances a deponent’s attorney may instruct the deponent not to answer a question. This should only happen if you are asking for privileged information (such as details of a conversation they had with their attorney) or your questions are so far out of bounds and offensive that they amount to harassment. If you follow the advice in this guide, such scenarios should not occur. In the unlikely event that the deponent refuses to answer a question that is genuinely vital to the case at hand, you may need to file a motion to compel their answer in the same manner you would file a motion to compel production of documents.
There is no doubt that depositions are a useful discovery tool for plaintiffs and defendants. If you need to discover information from a potential witness it is ideal to get that information well before trial. Otherwise, you run the risk of being blindsided by unexpected testimony that could have a serious outcome on your case!
Currently, lawsuitforms.org offers form packets and instructions for filing a complaint, answer, and request for production of documents in the following states: California, Florida, Georgia, Illinois, New York, North Carolina, Ohio, Oregon, Pennsylvania, and Texas!