If you have ever been involved in a lawsuit or watch law and order television shows, you may be aware of a tool lawyers can use called a deposition. What is a deposition? What rules apply to depositions? Who can have their deposition taken? I hope this article answers these questions and more.
What is a Deposition?
According to the Florida Rules of Civil Procedure, a deposition is the testimony of a party or other witness given prior to a trial or hearing. During the deposition, the parties to a lawsuit are able to question a person (the deponent) on all issues relevant to the controversy in the same manner as would be permitted at trial. However, although a question may be asked in a deposition, it does not necessarily mean that it can be asked during a jury trial.
A deposition is just one way a party can learn what the other party and his or her witnesses know and believe about the facts in controversy. Other ways include interrogatories, request for production, request for admission, and inspections of property. However, a deposition is different because a deposition allows both parties to obtain information from the witness at the same time. Also, depositions are different from other forms of discovery because a deposition can be taken from a person who is not a party to the lawsuit while other forms of discovery can generally be sent to parties. The deposition process allows the attorneys to see the demeanor of the deponent so as to get an idea of how they would appear to a jury.
Use of Depositions as Trial
Typically, a deposition cannot be used in lieu of live testimony at a jury trial. However, the Florida Rules of Civil Procedure allow the deposition of a witness, whether or not a party, may be used by a party for any purpose if the court finds one of the following apply:
- The witness is dead.
- The location of the witness is more than 100 miles from the place of the trial or hearing, or is outside Florida, unless the absence of the witness appears to have been procured by the party who offers the deposition.
- The witness is unable to attend or testify because of age illness, infirmity, or imprisonment.
- The party who offers the deposition has been unable to procure the attendance of the witness by subpoena.
- The party who offers the deposition proves, after application to the court and notice of intent to use the deposition, that exceptional circumstances exist so as to render admission of the deposition desirable in the interest of justice, and with due regard to the importance of presenting the testimony of witnesses orally in court.
- The witness is an expert or otherwise has a special skill.
Who Can Be Deposed?
A party may take a deposition from any person, whether a party or not, who may have information relevant to the issues in controversy. This includes business organizations and governmental agencies. In these situations, the business or governmental entity must designate one or more officers, directors, managing agents, or other qualified individuals who consent to testify on its behalf.
What is the Procedure for Taking Depositions?
A defendant may take the oral deposition testimony of any person, including the plaintiff, at any time after the complaint is filed. On the other hand, the plaintiff generally must wait until at least 30 days after service of process and the initial pleading on any defendant.
A party who wants to take the deposition of a party or witness must give reasonable notice in writing to every other party to the action. This is often through a document called a Notice of Taking Deposition. The notice of deposition must state the time and place for taking the deposition. If the attorney wants the witness to bring documents to the deposition, he or she would have to prepare a subpoena duces tecum stating what documents the witness is to bring and outline the list of documents on the Notice of Taking Deposition.
A deposition can be videotaped. However, if a party intends to videotape a deposition, the notice must state that the deposition will be videotaped and also must state the name and address of the operator.
Is a Subpoena Required?
A subpoena is not required to force a party to testify at a deposition. Instead, the party who seeks the deposition may move for discovery sanctions if the other party fails to appear for a scheduled deposition. However, if the witness is not a party, a subpoena may be required to compel attendance. The Clerk of the Court issues the subpoena for taking depositions. A witness who fails to comply with a subpoena may be held in contempt of court.
Where Are the Depositions Held?
Depositions can be held anywhere that the parties agree to. A few rules that do apply are that a plaintiff is usually required to have their deposition taken in the County where the lawsuit was filed (even if the Plaintiff moves out of state). However, a defendant who resides outside Florida or outside the County where the lawsuit was filed and who does not seek affirmative relief in the action will not be required to travel to Florida to give a deposition.
Under Florida Rule of Civil Procedure 1.140(e)(2), a nonparty witness who is subpoenaed to give a deposition may be required to attend only in one of the following locations:
- The county where the witness resides.
- The county where the witness is employed.
- The county where the witness transacts business in person.
- A place that the court determines is convenient.
What Happens During a Deposition?
lthough each deposition is different based on the case and the witness, there are a few common things in all depositions. First, the witness is placed under oath by the court reporter. If the deposition is taken by telephone, the witness must be sworn by a person present with the witness who is qualified to administer an oath in that location. After the deponent has been placed under oath, the parties may examine and cross-examine the deponent in the same manner as would be permitted at trial. The witness must answer all reasonably relevant questions that may provide or lead to evidence that would be admissible at trial, unless the matter is privileged.
Attorneys may object during the deposition. All objections must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate or limit examination. In all other situations, the question must be answered.
Some depositions can become heated. If at any time during the taking of the deposition, a party or deponent feels that the questioning is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, they can request a protective order to limit or terminate the examination. If a protective order is requested, the deposition is stopped for the time necessary to make a motion to the court for the protective order.
As you can see, a deposition can be an intense matter. Understanding what it is and what occurs during it may lessen the stress of a deposition. However, it is an important matter in which attention and detail must be given. Being unprepared or flippant during the deposition could have dramatic effect on your testimony and case.
If you are being deposed and have an attorney, make sure you talk with your attorney before the deposition so both you and they are prepared for your testimony. It is too important of an event not to be prepared.
Personal Injury Attorney Matthew Noyes represents those injured in car accidents, motorcycle crashes, bicycle accidents, pedestrian accidents and other types of personal injury matters. He is a named partner at the Tampa Bay law firm of Perenich Caulfield Avril Noyes – one of the oldest personal injury law firms in Pinellas County. Call Attorney Matthew Noyes now at 727-796-8282 or complete the form on this page or simply click here to schedule a free case consultation.