What is a de bene esse deposition?
How do you legally define it?
What are the important elements that you must know!
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What is a de bene esse deposition
A de bene disposition is a type of deposition taken to use the witness’s statements for trial as opposed to discovery purposes.
In other words, when the parties to a lawsuit believe that a witness may not be available for trial and they require the person’s testimony, they’ll organize a de bene esse deposition to have the witness testify immediately instead of later at trial.
We typically see requests for de bene esse depositions when a witness has a disease or terminal illness that may prevent the person from testifying in court in person.
De bene esse testimonies are sometimes called preservation depositions whereby the deposition’s objective is to preserve someone’s testimony for use in a trial.
In some situations, a deposition de bene esse can be used as a means to depose someone after the discovery period of the close of discovery provided there are extenuating circumstances.
De bene esse deposition definition
How do you legally define a de bene esse deposition?
According to Thomson Reuters Practical Law, a de bene esse deposition is defined as:
A deposition taken for the sole purpose of preserving a witness’s testimony for use at trial, instead of discovery. Parties frequently take de bene esse depositions: after discovery has closed (…) [or] when they anticipate that a witness will be unavailable for trial.
In essence, the idea is to preserve a person’s testimony for trial in anticipation of a person’s unavailability.
How does it work
Typically, when depositions are organized de bene esse, the parties will depose the witness the same way as they would have deposed the witness in front of a judge.
The deposition is also videotaped so a judge or jury can eventually see the person testify.
By seeing the person testify on video, a judge will have the ability to detect subtleties in the person’s behaviour, body language or gesture that you cannot get by reading a deposition transcript alone.
Just like any other depositions required, a deposition notice must be sent to the witness in question informing him or her of the party’s intention to proceed with a de bene esse deposition.
Lawyers and parties to a lawsuit should ensure that the rules of civil procedure applicable to the allow for a de bene esse testimony and must strictly follow the legal requirements.
During the examination, the parties will have the witness testify as if the witness is testifying in front of the court.
If there are objections, the parties will present their objections as they would have normally done so during trial.
Based on the rules of procedure, the parties will need to submit those objections to be resolved by the court so the parties can then fully complete the deposition.
Expert witness testimony
In some cases, you may be able to secure the testimony of an expert witness prior to trial using the de bene esse deposition procedure.
It may be challenging to secure the presence of an expert witness in court for various reasons, such as:
- Expert is unable to travel to your local jurisdiction
- There is a scheduling conflict
- The expert has other testimonies scheduled at the same time
- The person does not want to travel to trial
- Other reasons
In states like New Jersey, the parties to a lawsuit who reasonably anticipate not being able to bring an expert witness before a judge in person can depose the expert de bene esse.
Further to Rule 4:14-9(e), an expert like a treating physician or another expert witness may be deposed on video as a precautionary measure.
Takeaways
So what is the legal definition of a deposition de bene esse?
When is a deposition de bene esse used?
What is the purpose of such depositions?
De bene esse deposition definition:
