Deposition (law)

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In law, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. In many countries, depositions are given in courtrooms. In the United States and Canada, they are usually taken elsewhere. A minority of U.S. states, like New York, refer to the deposition as an "examination before trial" (EBT). Deposition is the preferred term in U.S. federal courts and in the majority of U.S. states, like California, because depositions are sometimes taken during trial in a number of unusual situations. For example, in some states, the litigation process may be drastically accelerated if the plaintiff is dying from a terminal illness.

Depositions are a part of the discovery process in which litigants gather information in preparation for trial. Some jurisdictions recognize an affidavit as a form of deposition. The routine practice of obtaining the oral evidence of a witness before trial is foreign to common law jurisdictions such as England, Australia and New Zealand. Having the right to pose oral questions to opposing parties in litigation before trial developed in Canada and the United States in the nineteenth century.

Contents

United States

Civil procedure

In cases pending in United States federal courts, depositions are carried out under Rule 30 of the Federal Rules of Civil Procedure. About 35 states use versions of the FRCP in their state courts. Other states have discovery rules that are set out either in court rules or statutes, and which vary somewhat from one state to the next.

If the desired witness (the deponent) is a party to the action, then notice may be given to that person's attorney. If the witness is not a party to the lawsuit (a third party), then a subpoena must be served on him/her if he/she is reluctant to testify. The person to be deposed (questioned) at a deposition, known as the deponent, is usually notified to appear at the appropriate time and place by means of a subpoena. To ensure an accurate record of statements made during a deposition, a court reporter is present and typically transcribes the deposition with stenographic equipment. Depending upon the amount in controversy and the ability of the witness to appear at trial, audio or video recordings of the deposition are sometimes taken as well.

Depositions usually take place at the office of the court reporter or in the office of one of the law firms involved in a case. However, depositions are also sometimes taken at a witness's workplace or home, or in a nearby hotel's conference room.

Prior to taking a deposition, the court reporter administers the same oath or affirmation that the deponent would take if the testimony were being given in court in front of a judge and jury. Thereafter, the court reporter makes a verbatim stenographic record of all that is said during the deposition, in the same manner that witness testimony is recorded in court. Some jurisdictions allow stenomask technology in lieu of traditional stenographic equipment, although many jurisdictions still prohibit stenomask because of its disconcerting effect on most lawyers and witnesses (the mask makes the court reporter look like Darth Vader).

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