Preparing Staff for Depositions

A deposition is an oral interview of a witness that is given under oath (the witness is sworn to tell the truth under penalty of perjury) that can then be used at trial. Depositions are part of the discovery process in which one side in a legal proceeding seeks to "discover" the facts of the case from the other side (for more information on the discovery process, see Discovery: Paper Records and Electronic Information).

As a general rule, and absent exigent circumstances, one side does not depose its own witnesses because it knows what the witness is going to say. It is usually only necessary for the organization to depose its own witnesses if the witness may be ill, has moved to a remote location, or is otherwise unavailable for trial. Accordingly, by their very nature depositions are confrontational, even if they are required to be taken in a calm and civil manner. The deposing attorney will always be trying to elicit testimony that is adverse to the other side's case.

For the purposes of this article, the various Federal Rules of Civil Procedure (FRCP) are used to explain the deposition process because they are standard in federal courts across the country and have been used as the model or template for many state laws on civil procedure. Risk managers are advised to check their local laws to determine the rules for depositions in state courts.

Discovery: Paper Records and Electronic Information

On occasion, attorneys will refer to depositions as either discovery depositions or trial depositions. Whether there is a legal distinction between these terms is unclear; the FRCP do not draw a distinction—they...