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What is a deposition and why does it matter?


Depositions – Rules of Civil Procedure

The process of and conduct in a civil case are generally governed by, among other things, rules of civil procedure. In federal court, there are the Federal Rules of Civil Procedure. In state court, each state has its own rules, many of which mimic the federal rules. These rules govern the procedure that is to be followed by attorneys and parties throughout the progression of a lawsuit or other matter that go before the court. This includes depositions.

Rule 30 of the Federal Rules of Civil Procedure governs depositions that are taken by oral examination and provides that a “party may, by oral questions, depose any person, including a party, without leave of court. . .” Among other requirements, the deposition must be properly noticed (i.e., the individual that is to be deposed must be properly informed), occur before an officer who is appointed or designated, and is typically recorded via specified means (i.e., stenographic, video, etc.). Rule 31 of the Federal Rules of Civil Procedure governs depositions that are taken by written questions and provides that a “party may, by written questions, depose any person, including a party, without leave of court. . .” The questions must then be sent to every other party, with appropriate notice. Generally, oral depositions are preferred and/or are more common than written depositions.

Similar to the Federal Rules of Civil Procedure, Rule 30 of the Alabama Rules of Civil Procedure also addresses depositions taken by oral examination and Rule 31 of the Alabama Rules of Civil Procedure addresses depositions by written questions.

What happens during a deposition?

Once an individual has received proper notice, the individual is required to be present at a specified location on the date and time listed in the notice. Failure to do so can lead to repercussions. If the individual is represented by an attorney, then the attorney will also attend the deposition. A court reporter will be present, as well as the attorneys for the parties and any attorney for the individual being deposed. At the outset of the deposition, the court reporter will swear in the individual being deposed and then confirm certain procedural items with all counsel present in the room.

Once the initial matters are complete, the attorney that noticed the deposition will proceed with asking the individual questions that relate to the case at hand. The attorney will also show the individual that is being deposed certain documents relating to the case and ask questions regarding the same. The deposition then proceeds much like a conversation going back and forth between the attorney’s questions and the individual’s answers. If a question is phrased incorrectly, misstates certain aspects, or is otherwise improper, other attorneys present during the deposition may “object” to the question. This means that the attorney disapproves of a specific question, thereby stating his/her objection generally or specifically so that it is notated by the court reporter for future use.

At any time, if the individual being deposed needs a break, such can be requested and is typically granted. However, if a break is requested in the middle of question that has not been answered, the attorney may request that his/her question first be answered before the break can proceed. The deposition will then proceed onward until it is completed or the allotted questioning period is over. This period is calculated by counting only the time when questions are actively being asked. Any breaks or lunch period will not count towards the total time permitted.

Why are depositions important?

Depositions are another form of discovery or, otherwise stated, a type of tool that can be used to gather evidence to support or refute claims in a lawsuit. Discovery is a one-time only period that may last anywhere from a few months to as much as a year or more. Depositions specifically assist in further clarifying information that was collected throughout written discovery.
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