Q What is a deposition?
A deposition is another discovery tool that allows a party to take sworn testimony of another party or witness prior to trial. The deposition is the crown jewel of discovery that allows a lawyer to summon a party or witness to submit to direct and/or cross-examination by an attorney on behalf of his client. The party or witness who is summoned to render testimony at a deposition is commonly referred to as a "deponent." The deposition may be taken as a means of obtaining information from another party or witness referred to as a "discovery" or may be accomplished for the purpose of preserving testimony for purposes of using the deposition at trial in lieu of having the witness appear at trial if the witness is unavailable for that purpose. The deposition taken to preserve testimony for trial in lieu of appearing at trial is referred to as a deposition de bene esse.
Before an attorney may proceed with the taking of a deposition, the deposition must be preceded by counsel serving a notice of taking deposition to all parties and their counsel to a lawsuit setting for the name of the party to whom the deposition is to be taken as well as the date, time and location where the deposition is to be conducted. In Idaho, a deponent’s deposition is to be conducted in the county where the deponent resides. If the inquiring party wants the deponent to bring documents for inspection and copying, then the notice must include a list of documents is required to bring to the deposition in the notice of taking deposition otherwise referred to as a notice of taking deposition duces tecum. If the deponent is not a party to the lawsuit, the party seeking to take the deposition of the deponent must also serve the deponent with both a notice of taking deposition along with a subpoena. However, if a party is requesting to depose another party to the lawsuit, only the service of a notice of taking deposition is neessary to secure the presence of the other party for purposes of taking a deposition without the necessity of serving a subpoena.
THERE ARE ESSENTIALLY THREE TYPES OF DEPOSITIONS.
In Idaho, the Idaho Rules of Civil Procedure allows a party to conduct three (3) types of depositions, namely, (1) an oral deposition; (2) an audio-visual deposition and (3) a deposition upon written questions.
AN ORAL DEPOSITION REQUIRES A DEPONENT TO ANSWER QUESTIONS POSED BY THE LAWYERS IN A LAWSUIT.
A deposition is typically initiated by the filing of a Notice of Taking Deposition as mentioned above. In the case of an oral deposition, a court reporter is retained to transcribe the questions, answers and any and all objections and discussion rendered during the deposition unless the parties agree to conducting any portion of the discussion "off the record."
The deposition begins by the court reporter administering "the oath" to the deponent. By oath, I mean that the Court Reporter renders the same oath to the deponent as a clerk renders to a witness at trial. The oath that is administered has the witness acknowledge that the testimony to be rendered during the deposition is sworn or affirmed that the testimony will be the truth to the best of the witness’ knowledge, information and belief. Accordingly, the testimony rendered during a deposition is under oath under penalty of perjury. Once the deposition is underway, the Court Reporter asks the deponent to raise the deponent’s right hand and then asks the deponent to "swear or affirm" that the testimony the deponent is about to provide is the truth to the best of the witness’ knowledge, information and belief. An oral deposition is so referenced as such, because the court reporter is present to transcribe the questions, testimony and objections rendered during the deposition which the court reporter/stenographer prepares into a booklet to be used by the trial lawyers thereafter. After the testimony is transcribed, the deponent has thirty (30) days following the transcription of the testimony to read and make any revisions to the transcript if the transcription of the testimony rendered was mistakenly transcribed. In theory, it’s not supposed to allow the witness the ability to change the witness’ testimony; it’s only designed to allow the witness to revise the transcript to any mistakes the Court Rmade in preparing the manuscript of the deponent’s testimony.
AN AUDIO-VISUAL DEPOSITION IS A DEPOSITION THAT ALSO IS ATTENDED BY A VIDEOGRAPHER WHOSE JOB IT IS TO VIDEO RECORD THE DEPOSITION ALONG WITH THE PRESENCE OF A COURT REPORTER WHO PRESENCE IT IS TO TRANSCRIBE THE TESTIMONY OF A DEPONENT.
An audio-visual deposition is similar to that of an oral deposition insofar as a court reporter is typically present during the deposition to transcribe the questions and answers rendered during the deposition with one exception. An audio-visual deposition allows the inquiring party to have a videographer present during the deposition for the purpose of also video recording the deposition as the court reporter transcribes the deposition. As a trial lawyer I have found a number of occasions where video recording the deposition is beneficial to the client.
First, I typically recommend to the client that we take an audio-visual deposition of the opposing party or parties in a lawsuit. In many cases, the defendant in a lawsuit may be unprepared. Videotaping the deponent allows my client to record not only the words of the defendant but the demeanor and facial expressions of the deponent in the manner in which the testimony is rendered. Sometimes the defendant may be hostile, aloof or indignant during a deposition rather than remorseful, contrite, humble and compliant. Video recording the deposition allows the plaintiff to show the true personality of the deponent be put on display during a trial by preserving portions of the hostile witness’ testimony before the defendant’s trial attorney has an opportunity to prepare and sanitize the witness’ performance for trial.
I also recommend that we video record the depositions of an opposing party’s key expert witnesses for the same reason I video record the testimony of the opposing party. I once took the deposition of a key defense expert witness who was instructed to refer the entire file before answering my questions. I asked the witness to identify the underlying facts he was relying upon in formulating an specific opinion mentioned in his report, and defense counsel instructed the witness to take his time to review the entire record before attempting to answer my question. The trouble is that the hired gun for the defense took his file (some 300 pages in length) and began to slowly turn through the pages to reread the entire record while stopping on multiple occasions to drink his coffee before starting to answer my question! By video recording the deposition, the Court could put a stop to the nonsense and issue an appropriate sanction to defense counsel for interfering with the fair examination of the deponent. A video recording of the deposition allows an attorney to document the gamesmanship of the hired witness’ testimony and would have better allows me to preserve the evidence to present to the Court in support of our motion to exclude the witness’ testimony at trial and/or seek sanctions against opposing counsel for interfering with the fair examination of the deponent during the deposition.
Sometimes a witness is unavailable to render testimony at trial. The video recording of a deponent’s deposition would allow the jury to view the recording of the testimony to assist the jury in being able to assess the credibility of the witness as in the case as if the witness were testifying live in a jury trial as if the witness were present on the stand.
Video recording a deposition provides many tactical advantages to the inquiring party includingin allowing same to preserve the deposition testimony at trial to allow the jury to assess the credibility of the deponent beyond what the mere words themselves were presented as well as to document the "Rambo" tactics of opposing counsel during the deposition.
A "DEPOSITION UPON WRITTEN QUESTIONS" CAN MINIMIZE THE EXPENSE OF TAKING MARGINAL TESTIMONY OF WITNESSES WHO ARE OUT OF STATE OR WHERE THEIR PERSONAL KNOWLEDGE MAY BE LIMITED TO RENDERING "FOUNDATION" FOR THE ADMISSIBILITY OF A DOCUMENT TO BE OFFERED AT TRIAL.
Taking depositions can be an expensive venture particularly when the costs includes having the witness or the attorneys in the case travel out of state to participate in the deposition. Sometimes the testimony of a witness is simply rendered to provide testimony to obtain the "foundation" necessary pursuant to the Idaho Rules of Evidence to have a document admitted into evidence.
A deposition upon written questions allows the attorneys in a case to submit a list of written written questions to a court reporter to read to a witness during the deposition and then have the witness/deponent spontaneously answer the questions, and then have the court reporter transcribe the testimony as in the case of an oral deposition or an audio-visual deposition. Depositions upon written questions cost a fraction of what oral or audio-visual depositions cost. However, the depositions do not allow the parties to ask follow up questions as in the case of oral or audio-visual depositions.
Depositions allow an attorney to "size up" and evaluate a witness’ knowledge and credibility. That is why I consider the taking of depositions to be paramount to completing the discovery phase of a lawsuit which can enhance the settlement value of a case leading up to a mediation and trial if the defendant and the defendant’s insurer are unwilling to engage in good faith negotiations to reach an amicable settlement agreement to conclude the case.
I prefer to conduct depositions after I serve a first and second wave of interrogatories, requests for production of documents and other tangible things and requests for admissions served to maximize the efficiency of a deposition of the Defendant in a civil case. By video recording the key depositions in a case, my team and I are able to make clips of critical portions of key depositions to be used in making a multi-media presentation to use during a mediation to demonstrate to the defendant’s insurer the strengths of my client’s case and the weaknesses of the defendant’s case in order to help obtain justice on behalf of his client by increasing the settlement value of the claim. Video clips of a deposition and other demonstrative evidence help the experienced trial lawyer tell the client’s story and demonstrate how a jury will likely receive the evidence at trial.
During a recent case involving severe injuries to a little boy incurred as a result of a collision involving a semi-truck/trailer and a sedan, I took the audio-visual depositions of the truck driver and the safety director of the trucking company. By using some of the video clips from the depositions, I was able to merge portions of the video recorded depositions into an multi-media presentation and presented same during a mediation. Prior to the mediation, the position of the defendants involved in the case were that the trucker and the trucking company were not responsible for the crash resulting in the child being seriously injured.
By video recording the depositions, my team and I were able to prepare an audio-visual presentation which demonstrated the lack of credibility in the defendants’ case. The presentation was powerful and convincing to the point. Before the end of the presentation, defense counsel asked to to confer with me during a break. Defense counsel confided in me that he needed to postpone the mediation so that we could reconvene at a later date to allow defense counsel to secure a vice-president of claims to come to the mediation with higher settlement authority since the adjuster who had been sent to attend the mediation did not have sufficient authority to settle the claim.
By agreeing to same, the Vice-President was able to see for himself portions of the video recorded deposition testimony and the settlement value was significantly increased resulting in the parties reaching a reasonable settlement regarding the serious injuries incurred by my client’s son.
The aid of using audio-visual depositions was "mission critical" to accomplishing a fair and reasonable settlement without the parties having to incur the costs associated with a jury trial or the risk of loss associated with litigation generally.
The use of depositions in pre-trial discovery can invoke a tactical advantage in accomplishing justice on behalf of an injured party, and an experienced trial lawyer understands the concept that anything worth doing is worth doing well. That being said, the use of depositions by an experienced trial lawyer with the aid of other forms of discovery can be a powerful tool in convincing an insurance company to engage in good faith negotiations.