New York City Personal Injury Law Blog

A Witness’s Guide to a Deposition or Pre-Trial Testimony

Posted on Aug 18, 2015 in Legal Terminology, Personal Injury

What is a Deposition?

A deposition or pre-trial testimony, also known as an examination before a trial or pre-trial discovery is a procedure necessitated by federal law, to collect an oral or written statement of a witness under oath. A deposition takes place outside the courtroom, in the absence of a judge, and at an attorney’s office. The deposition is considered to be the most valuable tool in an attorney’s armory.

Cross Examining a Witness

A deposition can be given in writing or done orally.

A witness or a deponent or a testifier is one who sees an event and provides evidence orally or in writing. This deposition could be a voluntary effort from the witness or it could be under compulsion. The primary objective of a deposition or pre-trial testimony is to establish the knowledge of the witness with regards to an event and secure that knowledge and/or information as a testimony for trial. A deposition helps all parties in the lawsuit to take cognizance of all facts ahead of the trial. It is also used to verify another witness’s testimony.

Civil & Criminal Depositions

There are different kinds of depositions. Federal rules govern the conduct of a civil deposition. The Federal Rules of Civil Procedure, Title V. Disclosures and Discovery,  Rules 26, 27, 28, 29, 30, 31, and 32, and sub-sections thereof, govern, and regulate the conduct and procedures of a civil deposition.

Federal Rules of Criminal Procedure, Rule 15 governs a criminal deposition, and may be taken if a witness cannot be present at the trial. Rules governing a criminal deposition vary and require the consent of the defendant.

A subpoena will be served on the witness if the individual refuses to depose, or if the individual is not a party to the lawsuit. Otherwise it is customary to issue a legal notice to the witness’s attorney. The witness can have his or her attorneys present during the deposition or a pre-trial testimony. The deposition proceedings are usually audio and/or video-taped and recorded verbatim by a court reporter so that the cognitive content of the testimony is preserved for the trial.

Examinations

In case of a civil deposition, the witness needs to appear to depose at a given time and place. The court reporter administers the oath to the witness and this notifies the commencement of the deposition. The witness is never coerced to submit information. During the deposition process, the opposing attorney has reasonable legal ambit to question the witness in order to discover “admissible evidence”. Attorneys examine the witness directly followed by repetitive processes such as re-direct and re-cross and they form objections to regulate the manner in which the witness can be questioned.

Such deposition or “cross-examination” may be lengthy, lasting hours. The Federal Rule for Civil Procedure 30[d][1] stipulates the maximum time duration of seven hours for deposition per deponent per day.

Perjury

During the deposition or pre-trial testimony, the witness needs to answer the questions carefully as it leads to complications if testified differently during the trial. Lying under oath can invoke federal charges of perjury against the witness. Written depositions are notarized as sworn statements of “truth and nothing but truth”.

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