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Taking A Witness’s Deposition: Advantages and Disadvantages
Legally Reviewed: This article was written, reviewed, and regularly updated by crowdsourcing legal professionals such as attorneys, law students, and paralegals to ensure ongoing accuracy and relevance.
There are advantages to conducting a witness deposition. It allows for effective questioning, which can lead to spontaneous admissions and help evaluate the credibility and demeanor of the witness. However, it’s important to consider the drawbacks well. Depositions can be costly. There is a possibility of unintentionally disclosing strategic information to the opposing counsel, which could potentially influence the outcome of the trial.
- Enhanced Questioning Effectiveness: A key benefit of depositions over other discovery methods is the ability for direct, oral questioning. This allows for immediate follow-up questions if answers are vague or incomplete. It also provides an opportunity to assess the deponent’s reliability and recall abilities through detailed questioning, and to elicit spontaneous admissions, which is less likely with written discovery methods like interrogatories.
- Assessing Witness Credibility: Depositions offer a unique chance to evaluate how a witness might be perceived by a jury, such as their sincerity and credibility. Other discovery forms yield only written answers, which don’t reveal much about a witness’ demeanor.
- Speed: Depositions can be arranged quickly, often within 10 to 15 days’ notice. They enable immediate inspection of documents and oral responses, which is much faster compared to other discovery tools.
- Videotaping Option: The deposition can be videotaped, offering a comprehensive trial record compared to other discovery methods.
- High Cost: Depositions are expensive, involving significant out-of-pocket expenses and extensive lawyer and client time in preparation and execution.
- Reporter fees average around $4.50 per transcript page. A typical short deposition can cost upwards of $550, and a full day might exceed $4,000.
- Additional costs may include witness and service fees, especially for nonparty witnesses or expert witnesses.
- Travel expenses can be significant if the deponent is located out of town, as depositions generally take place where the deponent resides.
- Time-Intensive: Preparing for a deposition requires as much effort as preparing to examine a witness at trial. This involves reviewing various documents, including investigators’ reports and previous discovery.
- Unpredictable Length: The length of a deposition can be extended by lengthy objections, evasive responses, or extended cross-examinations, potentially increasing costs unexpectedly.
- Limited to Deponent’s Knowledge: The response “I don’t know” is acceptable, even if the sought-after information is known to the deponent’s lawyer or is otherwise accessible.
Primary Reasons to Conduct Depositions
- Securing Specific Testimony: Depositions allow for locking in specific testimony anticipated at trial from opposing parties and witnesses. This is more effective than other discovery processes due to the ability to ask detailed follow-up questions.
- Document-Related Questioning: Depositions can compel a witness to produce documents and allow for immediate, detailed questioning about these documents.
- Discovery from Nonparty Witnesses: They are the sole discovery method for compelling nonparty witnesses to provide information.
- Foundation for Impeachment: Useful for highlighting inconsistencies in a party’s or witness’ testimony at trial.
- Preserving Testimony: Particularly useful for recording testimony of witnesses who may not be available at trial due to various reasons like illness or relocation.
- Influencing Settlement: Effective depositions can lead opposing parties to reconsider their stance on settlement, particularly after rigorous questioning.
Main Reasons to Avoid Depositions
- Cost-Benefit Analysis: Sometimes the expenses outweigh the potential benefits, especially for smaller cases.
- Risk of Informing Opposing Counsel: Depositions can inadvertently reveal information to the opposing side, eliminating the element of surprise at trial or prompting them to prepare more thoroughly.
- Perpetuating Unfavorable Testimony: There’s a risk of recording adverse testimony that might not have been available at trial otherwise.
When Prior Court Order Is Necessary To Take A Deposition
Generally, depositions are a right and don’t need court approval [Ca Civ Pro § 2025(b)]. However, court orders are needed in specific situations:
a. Before Filing Suit: For preserving evidence before a lawsuit is filed, a court order is necessary [Ca Civ Pro § 2035].
b. Successive Depositions: A court order is required to examine a person more than once [Ca Civ Pro § 2025(t).
c. Deposing Beyond Geographic Limits: To depose a witness over 150 miles from their residence, a court order is needed [Ca Civ Pro § 2025(e)(3).
d. During Discovery Hold: A court order is needed for depositions in the first 20 days after serving summons [Ca Civ Pro § 2025(b)(2).
e. After Discovery Cut-Off: A court order is required for depositions within 30 days of trial [Ca Civ Pro § 2024(a).
f. Deposing Prisoners: Deposing incarcerated individuals requires a court order [Ca Civ Pro §§ 1995-1997].
The use of depositions can be a strategic tool in legal proceedings, but it requires careful consideration of their advantages, disadvantages, and the specific legal requirements.
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