Wondering about the type of depositions?
What are the different types of depositions and what are the differences?
What deposition methods are available to litigation lawyers?
In this article, we will break down the different types of depositions so you know all there is to know about it.
Are you ready?
Let’s get started!
What is a deposition?
A deposition is when a person, the witness, provides an out-of-court testimony, a deposition, under oath with respect to facts he or she may know about a case.
There are different type of depositions, such as:
- Oral deposition
- Written deposition
A deposition can be held in any type of lawsuit.
You can be involved in a business or commercial litigation, personal injury case, property disputes or even worker’s compensation claims.
A deposition is an important tool used by litigation lawyers to build their case for the final hearing.
An oral deposition is when a person, who can be either a party to the lawsuit or a third-party witness, is asked questions in person and the deponent orally provides an answer.
The oral deposition is taken before a court reporter, an officer legally authorized to administer oaths and transcribe a person’s deposition.
Depending on the jurisdiction, a party may or may not need the court to authorize the oral deposition.
In addition, the court does not oversee the oral deposition process.
It’s a process handled by the parties to the lawsuit and the depositions are conducted in an out-of-court setting.
Often, lawyers tend to hold the oral depositions at their offices or at a mutually selected place.
The depositions can also be held directly at the courthouse.
A written deposition can be held in writing where the lawyers and parties are not present at the deposition.
The deposing lawyer will submit his or her questions to the court reporter mandated to depose the witness before the deposition date.
On the day of the deposition, the deponent answers the questions submitted to the court reporter in writing.
The witness’s answers are then recorded as per normal deposition standards.
In this type of deposition, the deposing party or attorney will provide a copy of the written questions to the court reporter in advance and that will require some work on the lawyer’s part to ask specific and clear questions.
The challenge with written depositions is that the lawyers need to live with the answers given by the witness to the written questions.
There is no follow-up opportunity to ask a complementary question or get clarification.
On the other hand, written deposition can be cheaper than oral depositions.
The purpose of a deposition
Discoveries may be held for different reasons.
A litigation lawyer may choose the depose a party or a witness:
- For discovery
- To preserve evidence and perpetuate testimony
Before we look at the purpose of each of the above depositions, let’s quickly discuss what objective a litigation lawyer may have in mind when deposing a witness.
Purpose of the deposition
A trial lawyer may have many objectives in mind when deposing a party to the lawsuit or witness.
Typically, these are objectives pursued when deposing a witness:
- To document what the witness knows under oath and test if the story holds during the final hearing
- To get documents, exhibits, material or other evidence relevant to the case and in possession of the witness
- To lock a witness in a specific narrative
- To attack the credibility of the witness by uncovering lies or untruthful statements made
Discovery depositions are intended to gather as much relevant information as possible from the opposing party or witnesses.
To this end, one of the most common methods of discovery is to take someone’s deposition.
Discovery depositions are aimed to “discover” something either by getting a factual statement from the witnesses or discover a piece of evidence, document or material that may help the overall success of the case.
The questions asked during a discovery deposition can be broad and exploratory.
There is a fine line between a lawyer going on a fishing expedition and exploring broadly.
Generally, an open-ended discovery deposition is conducted when a party is unable to get the needed information or evidence from another source or have any meaningful exhibit on record.
Even though depositions for discovery can be broad, lawyers should have a good idea in what direction they may want to take a witness.
To preserve and perpetuate evidence
What is an evidentiary deposition?
An evidentiary deposition, deposition to preserve evidence or an evidence deposition is a type of deposition performed to save a person’s testimony that may not be able to testify at trial.
A person who may want to preserve testimony for future use will need to get the authorization from the court as such.
Why do we need to save the testimony now?
What is the subject of the deposition?
What does the testimony need to be perpetuated?
In this type of deposition, the objective is not to go too broad.
The deposing attorney must carefully select the questions that are necessary and related to specific aspects of his file.
Often, the objective is to have a witness provide a factual account of certain events or further explain the context surrounding a document.
Witness cannot testify at trial
The court may authorize a deposition to perpetuate testimony if it is convinced that a witness may not be able to testify at the final hearing.
This type of deposition will be often used when a witness is gravelly ill or is unable to travel for some reason out of his or her control.
The objective is to immediately capture the testimony of the witness before it becomes impossible for the final hearing.
If a person is suffering from a mental illness that can only get worse over time, it may be important to depose the individual immediately before they forget the facts of the case due to their illness.
Different methods of depositions?
So we know that depositions may be given orally or in writing.
The purpose of a deposition is for discovery, to preserve evidence or to perpetuate testimony.
Now, what are the different methods for obtaining the depositions?
Let’s look at a few.
Depending on the jurisdiction, video depositions can be accepted as evidence in court.
Video depositions are depositions where the deposition session is recorded on video.
Essentially, a video deposition works the same way as a normal deposition with the added video element.
The advantage of a video deposition is that a judge or court can assess the witness’ demeanour, body language, how they responded to questions and so on.
The subjective elements in evaluating the person’s credibility will come through in a much better way on video as compared to the deposition transcript.
A video of the deposition can pack a bigger punch when used to impeach a witness.
Video depositions can also be useful when a person is ill or elderly.
Visual record of the deposition
Video depositions are valuable as they create a visual recording of the deposition.
When a person is deposed before the camera, a judge or court can eventually capture all the non-verbal subtilities in the person’s response.
Watching a video may also be more interesting in cases involving a jury trial.
Members of the jury may have an easier time watching a video than reading a thick transcript.
Credibility of a witness
Lawyers can use video depositions to demonstrate or attack the credibility of a witness.
A court can see how well a witness is answering the questions or if the witness is hesitating, getting nervous or angry.
These emotions and subjective elements of depositions cannot be captured in a deposition transcript.
A skilled lawyer will use the video to bring the witness’ body language or demeanour appearing on the video to the attention of the judge.
Video conferencing depositions
Video conferencing depositions are popular when the parties cannot meet in person for a face-to-face deposition.
All you need is proper equipment and good online internet access.
The advantage of this type of deposition is that parties can see one another face-to-face and get some of the non-verbal cues in addition to the actual answers given by the witness.
Witnesses can participate in a video conferencing deposition from anywhere in the world.
To conduct a proper video conferencing deposition, the parties must ensure that the witness has the proper equipment and reliable internet access to conduct the deposition.
Video conferencing allows for a face-to-face deposition although parties may be in different cities or countries.
Conducting an online deposition is a much better alternative than telephone deposition as you can see the reactions of the witness to your questions and capture the subtleties you would have missed over the phone.
Having the right equipment is important for running video or online depositions.
Witnesses may need to refer to exhibits or documents to answer some questions and the exchange of material must be facilitated.
With the right setup, online depositions can be conducted with ease.
Telephone depositions are also possible.
Are they ideal?
A telephone deposition, as the name implies, is done over the phone.
The deponent or witness will answer the questions asked over the telephone and the court reporter records what he or she hears over the phone.
Today, this type of deposition is not as common considering the technological means to organize a video conferencing deposition but it remains a possibility in case someone cannot travel and does not have internet access.
The major drawback is that the deposing lawyer cannot appreciate the non-verbal cues or body language.
Audio is the only cue available in this type of deposition.
Cut down costs
Telephone depositions can help a party cut down costs and save on travel time.
If a party is cash strapped and is unable to finance an expensive deposition, they may opt for a telephone deposition.
The deposition will be handled based on the same general guidelines.
A court reporter must swear the witness and take his or her deposition over the phone.
The integrity of the deposition
There are drawbacks to telephone depositions.
Not being able to see a witness is perhaps a major drawback.
Is the witness getting coached by someone else present in the room?
Can the witness claim they did not hear the question as an excuse to think about the answer?
With telephone depositions, the attorney will not have the advantage of catching non-verbal cues potentially useful in helping identify sensitive topics.
For that reason alone, a party should consider whether or not a telephone deposition is a right strategy.
Realtime reporting is a method of court reporting allowing the court reporter to provide the deposing attorney with a draft of the deposition immediately or shortly after the deposition is held.
Some realtime reporting software systems allow the deposition feed into the deposing attorney’s laptop computer in realtime.
This type of court reporting is very useful when lawyers need to continue the examination of the witness at another time or for long depositions.
By having access to the draft transcript, they can better prepare the deposition continuation and organize their thought.
Type of depositions takeaways
In this article, we’ve looked at: type of depositions!
You can have oral depositions or written depositions.
You can conduct a deposition for discovery or perpetuate evidence.
You can depose a witness in person or perhaps on video.
No matter the purpose of the method, depositions are extremely powerful tools litigation lawyers use to find an edge in their case.