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DEPOSITIONS FAQ

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What is a deposition?

 

A deposition is a sworn, out-of-court testimony given by a party or a witness in a civil lawsuit.  It is made under oath, under penalty of perjury. 

 

At a deposition, lawyers will direct a series of questions towards the party or witness.  The party or witness will respond to each of the questions, and the responses will be transcribed into writing.

What is the purpose of the deposition?

 

The purpose of the deposition is two part:  First, it allow the parties to investigate the testifying party or witness’s knowledge about any factual or legal issues with the case.  Secondly, it preserves testimony for later use, such as at trial, if the testifying witness or party becomes unavailable.

What is a deponent?

 

The deponent is the party or witness whose testimony is being provided, under oath, at a deposition.

Do I have to give a deposition?

 

A party to the case, especially a plaintiff, is required to give a deposition. 

 

Failure to attend a deposition can lead to sanctions against the plaintiff, personally, such as an assessment for costs to the court and the defendant as well as dismissal of the Complaint.  The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.

What are the rules of a deposition?

 

There are several basic rules for a party being deposed:

  • Tell the truth and be composed and professional (don’t argue);

  • Review documents/exhibits carefully and fully before answering questions regarding those documents;

  • Don’t be afraid to request a break;

  • If the question is unclear to you, request for clarification;

  • It’s okay if you don’t know the answer – simply state as much;

  • Answer the question asked and short answers are best;

  • Speak slowly and clearly

  • Provide verbal responses (head nods cannot be transcribed);

Remember, depositions are under oath and penalty of perjury.  It is not a conversation.  Try to avoid letting down your guard - conversational dialogue does not translate well when transcribed to written word.

Are depositions admissible at trial?

 

Sworn testimony provided during a deposition can be admissible evidence, for any purpose, including trial.  The attorneys will use deposition testimony to compel additional discovery, support or oppose dispositive motions (such as motions for Summary Judgment), and to develop or impeach testimony at trial.

Who can attend my deposition?

 

At any deposition, there will always be the basic participants attending:  the deponent, or testifying witness or party; the court reporter (and possibly, videographer); and each party’s attorney. 

 

However, in rare cases and in the absence of an order from the court, anyone is allowed to attend.  For instance, a party may have an expert or other consultant attend to help formulate follow-up questions, especially when the issues are complex or technical.

Who pays for my deposition?

 

The defendant pays for the costs of taking a plaintiff’s deposition.  These costs include paying for the attendance of the court report and, in some cases, a videographer. 

 

The plaintiff is not entitled to reimbursement for travel, time off from work, or other costs for their time.

What happens after a deposition?

 

After a deposition, the court reporter spends a few weeks transcribing the deposition. 

 

If the deponent has reserved the right to review the deposition, a copy is delivered to the deponent to allow him to correct any errors or clarify any responses on what is called an “Errata Sheet.” 

 

If the deponent does not reserve the right to review the deposition, a final copy of the original deposition and exhibits are sent to the party who noticed the deposition as original evidence.  Copies are provided to any party requesting a copy and willing to pay the costs.

Do judges read depositions?

 

Anybody can read a deposition transcription, and a judge will read those portions submitted in support or opposition to a legal brief.  You should presume that the entire deposition can and will be read by the judge.

How long does a deposition usually take?

 

Depositions usually last between one and three hours.  The complexities of the issues as well as the responses of the deponent can cause the deposition to be longer.  In Georgia, the deposition is limited to one day and seven hours, unless the parties agree otherwise or are ordered by the Court.

What should you not do at a deposition?

 

A deposition is not a conversation, and there are a few things you should not do at a deposition:

  • Do no lie;

  • Avoid volunteering information that’s not requested;

  • Do not let the examiner put words in your mouth – own your answers;

  • Do not answer a question that is unclear or you don’t understand;

  • Do not lose your temper, or argue with the examining attorney; and

  • Do not guess or speculate.

What questions are asked at a deposition?

 

Anything can be asked at a deposition, including question that do not seem relevant to your case. 

 

Obvious areas of questioning will relate to the underlying incident that caused the legal dispute (i.e. a car accident), your medical treatment and bills, and similar questions.  Other topics will likely include your employment history, medical history, criminal history, family history, and educational history. 

 

An examining attorney is not allowed to badger, harass, or insult you at a deposition.

Can you plead the Fifth in a deposition?

 

A party can plead the fifth in response to a specific question at a deposition, but it’s not advisable unless it is to avoid criminal liability. 

 

Pleading the fifth in a civil case will allow the defendant to legally draw a favorable inference from your answer.  In short, it’s better not  to plead the fifth unless instructed by your attorney or to avoid criminal liability.

What happens if I skip my deposition?

 

If you skip your deposition, you will be personally responsible for any sanctions awarded by the judge. 

 

These sanctions could include an assessment for costs to the court and the defendant as well as dismissal of the entire case.  The plaintiff is expected to cooperate and make himself available for a deposition so the defendant’s attorneys can investigate your claims for injuries.

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