What Is a Deposition and Why Do We Take Them?

A deposition is a critical part of the litigation process. Merriam-Webster's Dictionary defines deposition as "a formal statement that someone who has promised to tell the truth makes so that the statement can be used in court; especially: a formal statement that is made before a trial by a witness who will not be present at the trial." A deposition has been defined by those in the legal community as a " witness's sworn out-of-court testimony. It used to gather information as part of the discovery process and, in limited circumstances, may be used at trial." Some say that a deposition has two purposes: (1) to find out what the witness knows and (2) to preserve the witness's testimony. A deposition, however, has far more important purposes than simple fact finding.

One of the most important purposes of a deposition is to judge the appearance the witness will make before the jury. Is the witness pleasant? Is the witness likeable? Does the witness appear to be forthcoming and honest? Is the witness argumentative and evasive? Judging the appearance that the witness will make before the jury is just as important as learning what factual knowledge the witness may possess. It is the rare case where all of the witnesses agree on the facts. The jury is going to be required to make credibility determinations at trial, determine how much weight to give each witness's testimony and decide who to believe. Knowing how the witnesses will present to the jury provides crucial information, which helps to assess the value of your case, including whether the case should be settled or taken to trial.

At Bordas and Bordas, we know that the visual image of a witness when he or she is testifying is just as important as the words they say so we generally videotape depositions. Having a video of the witness's testimony brings life to otherwise plain words on a page. When an attorney, adjuster, judge or juror is simply reading a deposition transcript, important clues such as tone, pauses and hesitation are lost. Whether consciously or unconsciously, people use visual clues to gauge other's credibility and honesty. A video deposition records these important components of a witness's testimony, which are otherwise in a written transcript.

Two depositions I once conducted on the same day provide good examples of what would be lost if we did not have the visual component of the testimony. The first witness was a woman in her mid-thirties. She looked at me with pure disdain throughout her testimony, her body was positioned in a defensive posture and her voice in responding to my questions was one of disgust. My questions were met with audible sighs and eye rolls that would not appear in the written transcript. The hostility she was conveying was palpable and it was obvious she was attempting to evade answering any question, whether the question had significance or not. However, when she would address her counsel or answer questions posed by him, her demeanor was entirely different. Her body relaxed and her voice took on a sugary-sweet tone. Upon watching a portion of the video, one of our legal assistants commented to me that a jury would very much dislike this witness and not believe a word she says. However, had we not videotaped the witness, we would have lost that crucial information.

Contrast that deposition with the second deposition I took that day, that of the first witness's supervisor. The second witness was pleasant, direct and maintained a relatively relaxed body posture. While I may not have liked all of her answers, I came away from the second deposition believing that a jury would like the witness and place more credence in her testimony than the first witness. By comparing and contrasting witnesses' demeanor during depositions, an attorney is provided with critical information on which witnesses the attorney will want to focus upon at trial.

At Bordas and Bordas, we tell our clients to just be themselves and answer the questions posed directly and to the best of their ability. If they do that, they will come across to the opposing side well and defense counsel will walk away from the deposition knowing that the jury will like this person. Whether the deposition is videotaped or not, attempts to avoid direct answers to simple questions serves only to call into question the veracity of the witness's testimony. The first witness in my example above provides a prime example of how hostility and attempts to avoid answering simple and direct questions will ultimately work against the deponent. Her deposition took over twice as long as it should have taken because she tried to avoid answering any questions. In the process, she gave me great information on how she would present to a jury, including great visual evidence and sound bites that cause any reasonable juror to question this witness's credibility. She is also a prime example of why a deposition is so much more than a simple method of learning a witness's factual knowledge. A deposition provides crucial information regarding what witnesses should and should not testify at trial.