Can you depose a witness

Depositions usually do not directly involve the court. The process is initiated and supervised by the individual parties. Usually, the only people present at a deposition are the deponent, attorneys for all interested parties, and a person qualified to administer oaths. Sometimes depositions are recorded by a stenographer, although electronic recordings are increasingly common.

At the deposition, all parties may question the witness. Lawyers may not coach their clients' testimony, and the lawyers' ability to object to deposition questions is usually limited. Depositions are usually hearsay and are thus inadmissible at trial. There are, however, three exceptions to the hearsay rule that are particularly relevant to deposition testimony. The first is when a party admits something in a deposition that is against his or her interest. The reason for objecting is that it preserves the objection so that a judge may be able to rule on it at a later date, as a result of a motion, at trial, or on appeal.

If you are testifying at a deposition, you should make sure to tell the truth and do not try to make up answers. Transcriptionists are human and sometimes errors do occur — they may hear you wrong or mis-type an important word. If an error is not corrected, it might have major implications for a case. If the transcript has the wrong time, wrong date, or other wrong answer that is not corrected before trial, it could be used against you at trial.

Depositions can be very helpful to your case because they will let you know ahead of time what testimony you can expect from the other party and from their witnesses. That way, you can better prepare yourself to ask cross-examination questions or enter documents at trial that might show that the other party or their witnesses are lying.

This also works the other way around though. Depositions can help the other side to build their case against you. If you say something in a deposition that later turns out not to be true or that you describe differently when you testify at trial, it could seriously hurt your case at trial. The other lawyer could use any inconsistencies in your deposition to call the truthfulness of your entire testimony into question. The transcriptionist will type everything that is said so that the parties have a written record of the depositions, known as a transcript.

You do not have to depose all witnesses on the same day. Depositions might happen over the span of several different dates. Usually any issues or objections that are raised during a deposition are dealt with by the judge at future court appearances. Usually the parties or their attorneys have a chance to ask any questions related to the case that they want. If you have a lawyer, you should discuss what to expect at depositions with your lawyer prior to depositions.

If you do not have a lawyer, you may want to practice explaining what happened to a trusted friend or family member so you get comfortable talking about it out loud. You will be under oath at depositions, as will the other people being deposed, so you have to answer truthfully or you could face perjury accusations. Do not try to make up answers. We have a Preparing for Court video series on our Videos page that has examples of both direct and cross-examinations that might help you prepare for a deposition.

Usually the party that asks for the deposition will pay the deposition costs of the transcriptionist and for the room if space has to be rented out. This can be very expensive, into the thousands of dollars depending on how many witnesses there are and how long the depositions last. You do not have to depose every single person who is going to testify at trial.

If money is an issue, you could think about deposing only the other party or key witnesses. If you cannot afford depositions, then you do not have to ask for them. The party that wants a deposition will usually send out a deposition demand that includes a time and place for the deposition to occur, or it might say that the time will be decided later.

If the time is to be decided later, then the attorneys in the case or the parties, if there are no attorneys, will decide on a time that works for everyone involved. It is important to note that, although the CPLR does not explicitly make this distinction, these requirements only apply to experts whom a party expects to call at trial.

The comments to the CPLR make clear that an expert retained only for consulting purposes in preparation for a case is exempt from the disclosure requirements.

It is also important to note that Section d 1 i carves out a slight exception for experts retained in medical, dental, or podiatric malpractice cases. In those cases, a party may omit the names of medical, dental, or podiatric experts, but must make all the other disclosures listed above. In New York, expert witness discovery in commercial cases differs in certain respects, most importantly regarding the availability of expert depositions and the exchange of expert reports, from the general expert witness discovery rules summarized above.