What Is a Deposition?

Parties in a lawsuit have a legal right to conduct a pretrial investigation in order to discover facts and evidence to strengthen their case and avoid delay after the trial begins. Sometimes, facts discovered during such investigation may even result in a settlement between the parties without requiring any trial. The discovery or investigation can be requested in different forms, including:

  • Subpoena for a certain document
  • Written questionnaire
  • Deposition.

Deposition is the process of taking an oral statement from a witness who is under oath. Unlike documents and interrogatories, a deposition involves asking questions to a living witness.

Deposition on Written Questions (DWQ)

A deposition on written questions (DWQ) can be a useful discovery tool in situations where the deponent has limited information about the case, for instance, a custodian of business records.

Only the following persons can take a DWQ:

  • Clerk of a district court
  • Judge or clerk of a county court
  • A court reporter
  • A notary public.

Just like for an oral deposition, an official notice must be served for a DWQ. The notice must include the following information:

  • Name of the deponent. If the name is not known, it can be something like “custodian of business records.”
  • Place and date of DWQ (which must be reasonable).

Your attorney must sign the notice. If you are representing yourself, you must sign the notice.

All the parties must be served notice at least 20 days before the date of DWQ. If you are requesting to produce a document, the notice must specify the document, and it must be served at least 30 days before the DWQ.

Purpose of Deposition

There are two main reasons for taking a deposition:

  • Learn facts from the witness and preserve them as testimony.
  • Understand the case better and avoid any unpleasant surprises when the witness takes the stand.

A deposition gives an opportunity for the parties to understand their weak spots and prepare for ways to rebut them during trial.

Place of Deposition

Depositions are usually taken in attorneys' offices and not in the courtrooms. Attorneys ask the deponent several questions pertaining to the lawsuit. A court reporter is present throughout the entire deposition and records it word by word.

A deposition may also be videotaped, especially if the deponent is not likely to attend the trial because of to ill health or some other reason.

All parties can attend the deposition. The deponent usually has his or her attorney present, although with a limited role. Deponents should be careful about what they speak. Since a deponent is under an oath, he or she can be subject to civil and criminal penalties for making any false statement.

Depositions can last from a few minutes to even a week. Whether a deposition is required depends upon the circumstances of the case. Usually, cases involving legal issues only do not require depositions.

Deposition by Written Questions: What to Ask

In a DWQ, you will not get the opportunity to talk to the deponent personally. You just write down the questions, and the deponent answers them in writing on his or her own time. You can request the deponent for any information such as:

  • Accounting records
  • Medical reports
  • Employment history.

You must send a DWQ notification to the deponent and his or her attorney at least 20 days before sending the questions. You can send the notice first, and then start drafting your questions. The deponent gets a period of 30 days to respond to your questions.

Common Deposition Questions

The following are some of the more common deposition questions:

  • Have you ever been arrested?
  • Have you ever been convicted?
  • Have you ever deposed before?
  • Have you ever been a party to a lawsuit?
  • Have you ever testified in a court of law?
  • Have you ever seen the other party before the event in the lawsuit?
  • Did you ever meet the plaintiff's (or defendant's) counsel?
  • Have you made any oral or written statement about the event to any reporter?
  • Did you read or listen to any witness statement before the deposition?
  • How did you prepare to get ready for this deposition?
  • Who else was present when you met with your lawyer?
  • How did you find your doctor, therapist, attorney, or some other expert?
  • Do you have a driver's license? If yes, take down your personal information, and read it into the record.

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