Jim Adler | The Tough, Smart Lawyer
By Jim Adler March 9, 2016

When people consider filing a lawsuit, they will inevitably make an appointment to see a qualified attorney. When they talk to that attorney, they are immediately immersed in terms that they have heard in the movies but really have no idea what they mean. Terms such as “litigation,” “adjudication,” “affidavit,” and “brief” are thrown around by attorneys as if it is a language everyone speaks. Unfortunately, most people are not familiar with what many common legal terms mean, and that includes the term “deposition.”

People who are not attorneys have heard the word “deposition” used by attorneys in real life and in the movies. But very few people actually know what a deposition is and what it is for. There are a couple of basic parts to a deposition, and there is a process that has been around for decades. If you plan on filing a lawsuit, then you will want to get familiar with a deposition and know how it is used.

What Is a Deposition?

A deposition is part of the discovery process that happens prior to any court case. Whether your case is civil or criminal, there is the possibility that it will include depositions. Simply put, a deposition is a hearing held by the attorneys for both sides of a case that is designed to find out what a potential witness knows about the case and then preserve that information for the court proceedings. A deposition is held in an attorney’s office with the attorneys for both sides present, a court reporter, and someone certified to swear in witnesses.

Is a Deposition an Official Part of the Case?

While depositions are considered to be hearsay and inadmissible in court as evidence, an attorney can utilize a deposition to challenge a witness’s answer in court. For example, if a witness gives an answer in court that is contrary to their deposition, then the attorney can use that against the witness. Each witness who will be involved in a case on both sides is called in for a deposition, and it is considered bad practice to introduce a witness at the last minute that the other side has not had a chance to depose.

What Are the Component Parts of a Deposition?

The attorneys for both parties agree to depose a list of witnesses that they create together, and the entire process is administered by the attorneys. There are no judges involved in a deposition, but there is a promise by both sides to make sure that all witnesses are deposed prior to court. The proceedings used to be recorded by a stenographer, but audio and video recording have started to take the place of an official stenographer.

An Attorney’s View on Depositions

While attorneys are not allowed to coach their clients prior to a deposition, they can give advice that will help their client to perform better during the process. The most common advice given by attorneys for a deposition is to only answer the questions that are asked, be very polite during the process, and treat the process as if it were being administered by the court. Witnesses who do not take the deposition process seriously will find that their conduct is used against them in court. Witnesses are also instructed to not be led by general questions and insist that all questions from the opposing attorney be direct and require a singular answer.

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