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There are many aspects to cover when a lawyer is preparing a case for trial. From the beginning, the lawyer will develop a theme or strategy for her case. The lawyer will utilize the theme as a foundation of the case. Everything done in preparation for the trial should be done with this theme in mind. From evidence that will be utilized at trial, what motions to file, what witnesses to interview, and who should be deposed, the theme of the trial should remain in the forefront of trial preparation.
Deposing someone is known as conducting a deposition. The person being deposed is known as the deponent. Depositions are conducted in order to gather testimony from someone involved with a case. They are a discovery tool which helps to assemble testimony and documentary evidence before trial. Depositions involve testimony gathered outside the courtroom that will possibly be utilized later in the courtroom.
Typically, the testimony given during a deposition is conducted orally with a lawyer posing the questions and the person being deposed answering the questions. A court reporter will transcribe the testimony which is taken under oath. The court reporter, usually a Notary Public, can lead the deponent through a verbal oath so that affidavits can be signed stating that the testimony is complete and accurate.
Prior to conducting a deposition, information regarding time and place must be provided to the deponent in a timely manner, usually 5 to 10 days. Persons who are not a party in either side of a lawsuit can be deposed as well. In addition to providing the time and place, a subpoena to appear and give testimony must be provided in these cases.
If there are documents, photographs, or any other types of evidence referred to during the deposition, these are marked and numbered as appropriate. The court reporter will attach these additional exhibits to the complete deposition transcript.
As the deposition begins, the attorney can ask the deponent any number of questions of a wide variety. There are questions that may or may not be allowed in the courtroom. Some examples of these are questions may lack relevance or be considered hearsay. However, all questions are allowed during a deposition. The answers to these types of questions may uncover evidence and admissible statements that can be used in the courtroom.
Since it is taken with lawyers present and under oath, the deposition becomes a significant piece of evidence. When the case goes to trial, the attorney can utilize the deposition to impeach a witness when their testimony on the witness stand differs from what is documented in their deposition.
As technology has evolved, so has the technology behind depositions. It is becoming more common to see depositions taken via affordable video recordings. However, there are some specifics that must be taken care of. Both parties must agree to the recording. This is done through an agreement signed by both sides and is known as a stipulation.
There are many advantages to taking a deposition in the form of a videotaped recording. This type of deposition offers more than that of a transcribed deposition. With video, there are many additional types of information that are captured. While written and audio recorded depositions save the spoken word, videos save facial expressions, posture, and specific body movements of the deponent. This can in part help with questionable and ambiguous statements. Also, any bodily injuries can be indicated as well. For witnesses that are unable to testify during a trial, the videotaped deposition can resolve this issue. If a specific videotaped deposition is utilized as evidence at a trial, juries can be affected to a greater degree by a visual recording than with only a videotaped deposition.
Depositions can also be taken by telephone. These are allowed under federal rules and in many states. The rules for a deposition taken via telephone are the same as the regular deposition. The attorney asking questions will want to stipulate at the beginning that the deposition is being recorded. A telephone deposition can be conducted in a conference call situation with each party at separate locations.
Video conferencing is another type of technology that can be utilized to take depositions of parties. Video conferencing combines the audio portion of a deposition with a video recording. Video conferencing can help to clear up any confusion with unclear spoken words and make viewing exhibits easier.
Depositions are a necessary tool utilized by attorneys in preparation for a trial. There is little difference between information captured within a deposition and that of testimony given in a trial. The major difference is how the recorded information is utilized. Information in a deposition and testimony at a trial are both given under oath. However, the judge makes the decision as to what parts of a deposition are admissible at trial.