Crime drama shows would have you believe that surprise witnesses can be called whose testimony rocks the very foundation of the courtroom. In reality, the deposition procedure prevents this from happening. The deposing of a witness is part of the discovery phase, and it takes place when an individual who will eventually testify is interviewed under oath but before trial.
The deposition occurs after the filing of a summons and it serves several purposes. The primary purpose of a deposition is to find out what the witness knows. Every piece of evidence to be presented should be known prior to the trial’s beginning, and this includes witness statements. And although depositions are considered hearsay and inadmissible in a trial, their second purpose is to preserve testimony.
Collecting depositions is an integral part of any trial. This is why legal professionals should fully understand every step in the deposition process.
Swearing in the Witness
The deposition procedure begins with swearing in the witness. This must be done prior to taking any testimony or the information provided, even if witnessed by the court reporter, will be useless. Once the individual is under oath, it’s important to ask their name and address so that information is on the record. It’s worth noting that the swearing in of a witness and the entire deposition procedure can be performed over the phone or even internationally if necessary.
There are also a few things that should be explained to the witness at this point. First, ensure they know they’re under oath. Second, let them know that it will be assumed that they understand a question if they answer it. Finally, it’s important that they know it’s okay to ask for clarification if they don’t understand a question. This will make it difficult for them to claim ignorance if they later change their story at trial.
Examination by an Attorney
Once a witness is sworn in, the examination by an attorney begins. This is much like the courtroom process, but there are a few very distinct differences. To start, there is no judge present. What this means is that an attorney can ask a variety of questions that may later be ruled inadmissible. Since there’s no judge present, however, the witness usually has to answer all questions posited to him.
Another glaring difference is that, although a deponent can have their attorney present, the legal professional has less clout than they would in the courtroom. This is to be expected since most depositions are held in a law office or the court reporter’s office, but even their objections are often overlooked since there’s no judge to rule on them. If they have an issue with a specific question, a judge will need to rule on it later.
While performing a deposition, an attorney must make sure the witness vocalizes their answers since gestures can’t be put into the record. You’ll also have plenty of time to ask questions since most states have rules allowing depositions to last seven hours. In fact, lawyers can have this time extended either through the consent of the deponent or an order from the court.
The reporting of the deposition procedure is vital. Are you prepared for proper court reporting?
Cross-Examination by Other Attorney
Once an attorney has completed their direct examination of the witness, opposing attorneys have the option of cross-examining the witness. Again, this is much like the process seen in a courtroom other than the aforementioned differences. The attorney will often attempt to clarify statements made by the witness during the direct examination.
If the testimony provided during direct is damning for an attorney’s client, they could also try to lessen the damage by asking questions that may change the direction of the preponderance of evidence or present mitigating factors. Once the attorney is finished with their cross-examination, the initial attorney has the opportunity to re-direct. If necessary, a re-cross is also allowable.
It should be noted that the direct and cross-examination of a witness can become heated, but this is even more true in one particular case. If a deposition is being taken because a witness may be unable to attend the trial, the accused has the right to take part in that deposition and even cross-examine the deponent. This can obviously result in uncomfortable situations.
Following the Deposition
After a deposition is complete, there are a few technical aspects that take place along with the potentiality of avoiding trial. First, the court reporter will prepare a transcript using their shorthand notes taken during the deposition procedure. Next, a copy of the transcript will be sent to all parties involved so they can review the transcript and have it revised if necessary.
Once the transcript of the deposition is complete and accurate, attorneys will have a chance to discuss with their clients what the new evidence would mean at trial. It’s at this point that a serious conversation must be had about whether a settlement can be reached. If the two parties can come to an agreement, then the trial can be avoided entirely. If not, the case will go to trial where the deposition, even if it’s not mentioned, will play a huge role.
If you’ve ever taken part in a deposition procedure, you know how taxing it can be for everyone involved. Fortunately, you don’t have to handle all of this on your own. Learn more about our legal discovery services and contact us to schedule a deposition today.