What Is a Deposition in Legal Proceedings?
A deposition is a question-and-answer session between a party to a lawsuit and the opposing party or their attorneys. The person being asked the questions is called a deponent. The two parties will generally agree on when and where the questions will take place, and they don’t need a judge present. The only people in the room during the questioning are the parties, their lawyers, and the court reporter. The court reporter acts as a recorder of events and uses shorthand or voice writing to create an accurate record of what was said. There’s usually also an audio or video recording of the questions and answers. The overarching goal here is to have an accurate account of what is said so that it can be used in court if necessary. The point of a deposition is to gather information about the case. By asking specific questions, the opposing party can learn information that is necessary to resolve the case, such as how the opposing party plans to argue their case in court and how a witness in the lawsuit views the case. In cases that go to trial, the deposition gives the parties a good idea of what to expect from their opponent’s presentation of a case . When a case goes to trial, both parties give evidence and arguments to back up their legal positions and persuade the judge and jury to rule in their favor. The deponent’s responses to questions in a deposition are used to gather information, but they can also be used as evidence in trial if their answers differ significantly. It’s important to remember that just because you and the other party agree on when and where the deposition will take place, there is always a chance that the opposing party may change their mind later, or it may get cancelled. While it is normally agreed upon beforehand, sometimes a party will need to request more time to prepare or change the time or location of the deposition. It’s not uncommon in a trial for parties to agree to change certain details of their depositions – this is all perfectly normal and acceptable. Remember, a deposition is not a public proceeding, so there should not be an audience in the room unless it’s specifically approved of by the parties. This is another reason why it’s important to have a transcript or audio or video of what’s said, so that third parties can be made aware of what went on.
Are You Legally Bound to Give a Deposition?
There are specific circumstances when you can be legally obligated to give a deposition.
If you’re involved in litigation in Federal or State Court, lawyers have the ability to compel you to give testimony if they have a court order or subpoena. When you get a Subpoena Duces Tecum, or essentially an order signed by a judge requiring you to come in and provide documents relevant to the case, there’s nothing you can do other than comply unless you object or file a motion to quash or deny the subpoena. If you don’t comply with the depo, you could be held in criminal or civil contempt of court. If there’s a court order signed by the judge, you have to comply with that as well or you could mount an attack against it via appeal or a motion for reconsideration to the particular judge or court. The bottom line is if you get a subpoena, an order or a notice for a deposition and you fail to show, you could be held in contempt of court which could mean up to six months in jail (although this is rare – but it has been known to happen). You have to comply with the order and the subpoena even if you don’t want to.
What Happens If You Refuse to Give a Deposition?
The potential consequences of refusing to attend a deposition depend on the legal situation. Generally, the consequences range from minor irritation to significant financial penalties, and can include being held in contempt of court and even facing imprisonment.
In California, if the witness has been officially noticed to appear at a deposition in a civil case, and the notice has been served, the California Code of Civil Procedure section 2025.450 (a) gives a court the ability to order the defaulting witness to appear to testify. Here’s the relevant language: "On motion of a party who has noticed the deposition and upon declaration of that party or his or her attorney showing good cause for the production of the documents, tangible things, or categories of them at the deposition, . . . a court shall impose a monetary sanction … against any party or attorney who unsuccessfully opposes a motion to compel the attendance of a witness . . . to testify at a deposition . . . if the court finds that the opposition to the motion was without substantial justification and is not substantially justified."
If you don’t appear in front of the judge within one day after being served with an order to show cause why sanctions shouldn’t be imposed, the judge can impose sanctions without a hearing. For information about what sanctions can be imposed, see California Code of Civil Procedure section 2025.450(g). Failure to follow the judge’s order can lead to being held in contempt of court. See California Code of Civil Procedure section 2025.450(f).
A deposition is not required if "(1) At the time of the deposition, there is a reasonable expectation that the information sought will not lead to the discovery of admissible evidence; or (2) the deponent is unable to respond to all or any portion of the deposition." California Code of Civil Procedure section 2025.420.
One final note. A deposition in California may not go forward unless the discovery referee appoints a person to administer it. California Code of Civil Procedure section 2034.410. If there is no such person, yet a deponent attends the proceedings, he or she cannot be made to answer questions. California Code of Civil Procedure section 2025.240(a).
Of course, refusing to appear might entail non-monetary sanctions, especially if you are held in contempt.
Your Rights and Obligations During a Deposition
As a witness deposed during a case, you have a number of rights. One of your rights is to ask for counsel to be present during your deposition. This counsel appointment is separate from the one where you disclosed information in private to your lawyer, known as the attorney-client privilege.
Your other right is the ability to object to questions asked during a deposition. Not all questions are allowable, depending on the relevance to the case and the information being sought. The right to object to these questions is in place to prevent harassment by the questioner. If you or your attorney labor under the belief that certain questions are asked in a harassing manner, you may be legally entitled to file a motion with the court to prohibit that questioner from continuing to question you.
How to Prepare for a Deposition
Preparing for a Deposition involves gathering the appropriate documents associated with the litigation, meeting with your attorney to discuss what a deposition is, and practicing possible deposition questions that you might be asked during the deposition.
When preparing for a Deposition, it is important to gather the appropriate documentation related to the litigation. When you have received notice of the deposition, you will most likely be given a list of documents that you should consider bringing or providing to the other side (or opposing counsel). These documents are often boated using the phrase "all documents related to this litigation." Although it is advisable to be careful and avoid producing documents outside of those related to the litigation, you may also have good reasons to produce documents that seem beyond the scope of the litigation. Your Attorney will advise you on what is appropriate under applicable law.
The next step in preparing for the deposition is to meet with your attorney to discuss what a deposition is and how it will be conducted. In simple terms, it is an opportunity for opposing counsel to ask you questions about the litigation. Generally, depositions occur in the office of the attorney requesting the deposition, although the parties can agree to have the Deposition taken at another location. Depending on your case, attorneys for all parties might attend the deposition, or it is possible that only attorneys for certain parties might be present. The person being deposed is generally not permitted to have their attorney present during their own deposition. Instead, if the deposition is your deposition, an attorney from your firm or an attorney you have retained will be present to object to improper questions.
During the deposition, it is important to listen to the question being asked. There may be occasions when an attorney for opposing counsel asks a question of you, interrupts your answer with another question, and then tries to use your interrupted answer against you later in the Transcript . This is improper and you must be prepared to Stop the Deposition and object.
Under the Rules of Evidence, each party has a right to object to improperly leading questions and those objections must be stated at the time of the objection. For example, if opposing counsel were to ask you, "Isn’t it true that you ordered 1000 widgets from ABC Widgets, LLC last year?" you should have your attorney object to the form of the question, stating that this is a leading question. This is important because, in addition to registering an objection to a question at the time the objection has been stated, an objection preserved for the record through other means. For example, you may simply state – "Objection." By saying "Objection," you have preserved the objection for the record and the Reporter is required to include that statement in his/her Transcript.
Having said that, you should refrain from objecting before or during your deposition. Objection are generally viewed as "speaking objections" and can lead to the Court, at some later time, to determine whether you have actually answered all of the questions that have been asked of you. Further, because the Court looks to the Reporter’s transcript to determine whether your objection has been properly addressed during the deposition, you should refrain from arguing with opposing counsel about the substance of a question or making statements about the substance of a question. As the rules make clear, your only rights and responsibilities are to object to an improper leading question and to preserve your objection for the record by saying "Objection."
Depositions are powerful tools that can be used to effectively cross examine a party or non-party witness. You should be well prepared for your Deposition as you are the strongest weapon to help achieve the outcome you desire.
Deposition Procedure and Behavior
Depositions are governed by rules and customs that lawyers learn in law school and at their firms. Still, you will need to be able to anticipate what is coming, and know how to respond to the questions being asked of you. While not exhaustive, some of the more important things to remember as you prepare to sit for a deposition include:
o Answer only the question that you are asked.
o If you do not understand a question, ask for clarification.
o In answering a question, think about the answer before you speak.
o Avoid rambling on with your answers or explanations.
o Avoid lapsing into conclusions or arguments.
o Refuse to answer questions that ask you for information that is privileged (such as conversations between you and your lawyer, or conversations between you and your lawyer’s staff); and
o Do not volunteer information that was not in the question.
For a deposition to be effective, you must be completely honest. This is especially true when opposing counsel is representing an insurance carrier. Insurance companies are notoriously good at investigating claims, and providing false information to an insurance company could very well cause a serious problem for your lawsuit.
Your memory of all events at issue is often faulty. You should not try to guess at the answer to the question asked. Similarly, do not give an answer that you know is incorrect hoping that you will be able to explain it later.
Exceptions or Special Cases
Exceptions and special circumstances exist, such as where the witness possesses a privilege (usually attorneys or clergy), or if the witness is of unsound mind or deathly ill, in which case there would be no advantage to deposing the person. Also , if a witness believes that giving testimony may be incriminating criminally or civilly, that privilege is known as the Fifth Amendment privilege against self-incrimination. Also, witnesses often will refuse to give deposition testimony on the basis of their own health issues.