Unlike information obtained through interrogatories, requests for admission, and requests for production, depositions involve a live round of witnesses being asked questions related to the case. Basically, it is a witness’s sworn out-of-court testimony.
Depositions are used to gather information as part of the divorce discovery process and may also be used at trial. It has two primary purposes…to find out that the witness knows and to preserve their testimony (what they say). Essentially it is a mechanism to assist parties with learning facts before the trial to eliminate the element of surprise when a witness is on the stand.
Depositions usually do not directly involve the court and most often take place in attorney offices. Usually, the only persons present at a deposition are the deponent (person deposed), attorneys for all interested parties, and a person qualified to administer oaths. Sometimes depositions are recorded by a stenographer, although electronic recordings are increasingly common. At the deposition, all parties may question the witness. Lawyers may not coach their clients’ testimony, and their ability to object to deposition questions is usually limited.
Although depositions are usually hearsay (thus inadmissible at trial) there are three exceptions to the hearsay rule that are particularly relevant to deposition testimony.
1. When a party admits something in a deposition that is against their interest.
2. When a witness’s testimony at trial contradicts their deposition.
3. When a witness is unavailable at trial.
Depositions may also be conducted by written questions, where the parties submit questions in advance. Subsequently, the deponent answers only those questions at the deposition.
Deposition questions can usually be broader than what is allowed in court. Although the deponent’s lawyer can object to some questions, the deponent is usually obligated to answer all proper questions despite objections, which will get ruled on later since judges are not present at depositions. There are some exceptions in special cases where immediate rulings may be necessary. During the course of the deposition, the deponent is not permitted to ask questions…they are only required to answer.
Depositions can be as quick as thirty minutes or take days or even over a week depending upon the deponent. It is important to understand that depositions are serious matters and what is said during the deposition is equally important. It is critical that when deposed, to listen to the questions carefully and answer them precisely as deponents are under oath…thus, making false statements can lead to civil and criminal penalties.