Filing of legal lawsuits is everyday activities lodged by plaintiffs to seek legitimate resolution for the loss and damage incurred by them financially, physically, materialistically, etc.
In the wake of seeking conflict resolution for their clients via court, hired lawyers of defendants and petitioners need to ensure availability of all accessible data that can serve as endorsements, provide leads, help anticipate any potential problems that can arise, or facilitate in building grounds of arguments to be used when the trial proceeds in court; which is why calling of witnesses to record statements becomes essential.
what is a deposition?
So, what is a deposition in the basic context of the functioning of the legal framework? As a pre-trial measure, it basically is one of the five methods of information discovery other than interrogatories, mental and physical examination, request for production, and request for admissions.
It involves the legal summoning of a witness(s) (deponent/s) to testify their version of the incident and provide feedback under oath to a series of queries in a question-answer session with a lawyer in the presence of an authorized court officer and a legal recording team outside the court. Notice of deposition sent to the deponent/s must state how the statements will be recorded. Usually, depositions are of two main types: oral and written, and are taken at the office of the attorney, where witnesses of both defendant and plaintiff are present.
The session involves direct and even cross-questioning of the deponents of both sides where objections may be raised, in the case of which a possible out-of-course resolution or smooth flow becomes difficult. It is a resourceful hearing that provides significant information to the cause of the trial for both parties.
It is worth knowing that a witness is not bound to answer every question asked. He has the right to object to or not to answer. Generally, such questions fall under the following categories:
- Questions of private nature relating to health, sexuality, belief. Unless objection stands overruled, a lawyer must first justify the intent of asking such a query being relevant to the case development.
- Irrelevant Queries – those that you deem render no fruitfulness to the case requirements.
- Privileged information – those of confidential nature.
The provided response is noted word-to-word by the legal transcription service or the court reporter. At times, the deposition may also be a time-stamped video session recorded by the authorized videographer.
As per the Texas Rule of Civil Procedure1995 (c) no individual witness can be questioned for more than a duration of six hours. The deposition period also allows for breaks, the time-out for breaks is not considered in the sanctioned time limit for the session. However, in case of circumstances requiring additional time and for ensuring fair treatment, a court may consent to extension against an appeal for extra time.
Upon conclusion of the session, the authorized legal officer is bound to declare the successful conduction and completion of the session along with the custody of the recorded transcript. He/ she must also acknowledge before the attendees the collection of statements and/or any stipulation set by the concerned parties that stand relevant to the case.
Taking of depositions is backed by the applicable Local Rules of Laws, the Texas Rules of Civil Procedures, and the Texas Rules of Evidence.
The above mentioned sanctioning authorities have laid down deposition doctrines that comprise procedures pertaining to:
- Discernment and identification of a deposition
- Penalties in case of failure to appear for a deposition
- Checklist of attendees in a deposition session
Underlying Purposes & Requirements
For a good understanding as to why depositions are conducted, it is worthwhile to know the advantages they can serve in filed cases or what requirements they can fulfill.
- The questioning can help surface potential information that can be crucial to the cause of the case stance for any one party or both parties.
- It helps know what the witnesses are aware of and to preserve their feedback.
- It helps in better preparation of the case by knowing what the other party plans to advance on.
- The recorded statements act as a tool of accountability and come in handy in case any witness backs out from his words or later changes his statement. In such a case it helps strengthen the stance of the other party.
- It may so happen that a witness may pass away or not be available or traceable to appear in court during the court proceedings, hence the recorded statement tends to serve the purpose without causing delay in the proceedings.
- Depositions are an opportunity for all concerned parties to make note of their weaknesses, plus points and possible options of resolving the matter.
Possible Outcomes: The deposition activity is an integral part of the preliminary discovery phase of a lawsuit and its possible conclusions could be any one of the following:
- Facts may be brought into the limelight whereby both parties agree to a settlement out-of-court. In such a case, both parties willingly drop their charges/ claims and may agree to payment of compensation or any terms and conditions jointly accepted to put an end to the conflict or clash, etc. Concerned lawyers of both parties collaborate after taking the depositions to review the surfacing facts. This phase is characterized by offers and negotiations to come down to chalk out the terms and conditions of the settlement via collective contract. Chances of successful settlement usually bounce at 90%.
- The facts of the case may be clear, however, the concerned parties do not consent to a settlement where the terms and conditions may not be acceptable either to one party or both. In this scenario, it becomes hard to negotiate. Either the parties may come to a common agreement after a long duration of deliberations or the case goes to court.
- The case proceeds to court and disputed facts are debated to win over the verdict. This may lead to the trial seeing its most challenging phase of conduction.
Significance of a Deposition
- The time period of lawsuits cannot be determined as some are not of grave nature and reach their verdicts or resolution sooner, while others lawsuits that are complex may take months or even more conclude. It is thus a quick way to resolve a dispute. A deposition record basically locks in the witness statement that might be used later on without fear of loss of witness or effect of time.
- A deposition may also lead to a possible out-of-court settlement between the plaintiff and the defendant before the trial goes active in court. This may happen if, after the recording of the depositions, lawyers evaluate that the case might harm their client or not produce favorable results/impact or maybe because the case is not worthy to be filed. The concerned parties may come to resolve the bone of contention via terms and conditions agreeable to both parties. Depending upon the nature of requirement or mutual consent of the involved parties, an amount in the form of financial compensation or distribution of assets, etc. is made. It is relevant to state that this act of conflict resolution is a deliberate pre-trial out-of-court settlement between the conflicting parties and voluntary in nature.
- Furthermore, the information gathered from depositions can help define better strategies to fight the lawsuit in case settlement is not achieved prior to the starting of the court trial.
- It ensures that there is no delay once the trial has started in court due to previously gathered and discovered information.
Do’s & Don’ts to Observe
Now that it stands clear as to what is a deposition, it is also worthwhile to know what to do and what not to do when summoned to record your statement.
- Honesty is the best policy: This is very essential as you cannot toil a case on untrue or distorted facts. Any fabricated or untrue statement can go against you in proceedings of the case if you fail to recall what you said or state a new version.
- Discussion with the attorney: It’s always a good idea to seek professional assistance when dealing with legal lawsuits, so take out the time to discuss things over with your attorney so that you can be well guided and be well prepared to respond to the questions in line during the deposition.
- Stay watchful: while being questioned, you are under observation whereby not only your verbal communication is being monitored but also your non-verbal gestures which may raise a brow.
- Limited reply: In response to the queries, answer as much as required only. Avoid oversharing or volunteering for extra and be direct.
- Be not intimidated: Attorneys know how to wring out information while questioning therefore, stay composed, and be not provoked emotionally by their questions to spill out something not meant to be said.
- Maintain a well-dressed up look appropriate to the occasion.
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