Anytime a court reporter or an unfamiliar deputy sheriff knocks at your door with a piece of paper in hand it is generally not good news. Am I being sued? Am I being charged with a crime? If you are a witness or a party to a lawsuit, you may receive a subpoena to testify in court or to appear for a deposition.
While a deposition may sound like a frightening legal ordeal, it does not have to be. A deposition is merely a tool used by parties to a law suit to collect information through the sworn testimony of witnesses. There are two kinds of depositions, formal and informal. A formal deposition is taken for use at trial , when the witness will not be available. The informal deposition is known as a discovery deposition and is generally only used at trial for impeachment purposes if a witness changes her story.
The attendees of a deposition generally consist of the parties to the case, their attorneys, a court reporter, a witness, and, in some cases, the witness’ attorney. While cases can certainly be won or lost based on deposition testimony, a deposition by itself does not end in a judgment or a conviction.
Once the deposition begins, the deponent is sworn-in by the court reporter and then is asked a series of questions by one party. The other party will also have the opportunity to ask the witness questions. At the end of the deposition, the deponent is given the opportunity to review her testimony at a later date.
There are some advantages to hiring an attorney to represent you at a deposition. Your attorney can advise you throughout the deposition and protect you from divulging trade secrets. The attorney can also assist you in asserting your 5th Amendment rights by preventing you from giving answers that may incriminate you. Your attorney can also assist you in protecting privileged information such as the attorney-client privilege or a spousal privilege.
It is true that some attorneys try to intimidate witnesses and also ask misleading questions during the deposition. There are also attorneys who try to obstruct depositions by making bogus objections or instructing their client not to answer pertinent questions. While this type of conduct may be effective in some situations, it often leads attorneys to court sanctions and fines. However, since no judge is present, if there is not a good record of the attorney’s egregious conduct, he will get away with it.
In sum, a deposition is merely an informal information gathering tool. While a deposition may initially be intimidating, it does not have to be a frightening experience. However, in order to protect your rights as a witness at a deposition, it is generally a good idea to contact your attorney and discuss whether he should be present.