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“Trial by ambush,” in which one party wins by surprising the opposing party with unexpected evidence or witness testimony, is not considered good jurisprudence. The California Code of Civil Procedure and the California Evidence Code are both designed to minimize the element of surprise. One of the main reasons for depositions is to prevent one party from being surprised by the testimony of a hostile witness. Keep reading to learn more about what a deposition is and its role in a personal injury case.

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Context: The Pretrial Discovery Process

The pretrial discovery process commences after you have already filed a lawsuit. You’ll first file a formal written complaint and notify the defendant via service of process. The defendant will then file a formal written answer. From there, the discovery process will begin.

The discovery process includes four legal tools that allow each party to gain access to evidence that the other party possesses. These tools are depositions, interrogatories, requests for evidence, and requests for admissions.

What Is a Deposition?

A deposition is a Q&A session between lawyers and prospective witnesses. These witnesses are primarily hostile to the party whose lawyer interviews them. Although the parties’ lawyers question witnesses under oath (raising the possibility of perjury liability for knowingly false statements), the deposition takes place out of court.

Who Attends a Deposition?

Typically, the following parties must attend a deposition:

  • The witnesses whose testimony the lawyers will solicit through questioning;
  • Lawyers for both parties; and
  • A court reporter to record the deposition.

One conspicuous absence will be the judge (usually). This means that a lawyer cannot halt a line of questioning with “Objection, your honor!” since there will be no judge present to rule on the objection. The judge can refer to the court reporter’s record later, however, and they can exclude certain deposition testimony from being used as evidence in court.  

What Kinds of Questions Can You Ask at a Deposition?

The questions you ask during a deposition must be calculated to lead to admissible evidence. A boyfriend being sued for the domestic abuse of his girlfriend, for example, might be asked to identify previous consensual sexual relationships.

What Is the Purpose of a Deposition?

Depositions serve several purposes, including the following.

To Understand the Weaknesses of Your Case

At trial, you seek to elicit testimony favorable to your case, even if you are cross-examining a hostile witness. In a deposition, one of your highest priorities is identifying weaknesses in your case. 

You might seek to discredit a hostile witness at a deposition. To that end, you might encourage the witness to speak their mind so that you will know what to expect at trial. Moving aggressively at a deposition could tip off the defense on your case strategy – it’s a balancing act.

To Obtain Testimony From Witnesses Who Cannot Attend Trial

A party might depose a witness who cannot appear at trial because they:

  • Are too ill to attend the trial;
  • Will be out of town during the trial; or
  • Will be unavailable to testify at trial for some other reason.

In this case, the party seeking the testimony of the witness will videotape the deposition.

To Discredit a Hostile Witness If They Contradict Their Deposition Testimony at Trial

The court reporter is recording the witness’s testimony. You can use this to discredit a witness who says one thing at a deposition and another at trial.

What If the Defendant Deposes Me?

If the defendant deposes you, observe the following tips:

  • Rehearse your deposition in advance with your lawyer.
  • You have the right to bring a lawyer with you. Exercise this right.
  • Don’t rely on notes or documentation to help you through the deposition unless your lawyer has thoroughly examined them. The opposing party has the right to read any documents or notes you bring with you and use them against you if possible.
  • Answer all questions truthfully. You could get into a lot of trouble if you don’t – in fact, criminal sanctions are possible.
  • Don’t answer any questions that nobody asks you. Listen carefully to any question the other side asks you and ask for clarification if you need to. Do not let your answer exceed the scope of the question.
  • Remember your own answers and be very careful not to contradict yourself. Sticking to the truth will make this much easier.
  • Normally, you cannot refuse to answer a question. In certain cases, however, you can. Your lawyer can signal you when to refuse to answer a question. 
  • Don’t expect your deposition to be fun. It won’t be.

Above all, listen to your lawyer and follow their advice to the letter. 

Don’t Try to Handle This on Your Own

Depositions are tricky matters. Regardless of whether you are deposing someone or you are deposing someone else, a single error could do serious damage to your case. Contact an experienced personal injury lawyer who can guide you through the deposition minefield.



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