Duhaime's Law Dictionary


Deposition Definition:

The official statement by a witness taken in writing (as opposed to testimony which where a witnesses give their perception of the facts verbally).

Related Terms: Affiant, Deponent

In the USA, a pretrial cross-examination of the other litigants or witnesses.

In Walden, the Supreme Court of Michigan:

"A deposition is a general expression embracing all written evidence verified by oath, including affidavits."

A recorded official statement by a witness transcribed in writing and verified by oath.

In Berry v American Standard, Justice Thomas Welch of the Appellate Court of Illinois wrote of a:

"... a sharp distinction between depositions taken for the purpose of discovery and those taken for use as evidence at a trial. The purpose of a discovery deposition is to explore the facts of the case, and for this reason wide latitude is given in the scope and manner of questioning.

"Discovery depositions are used to obtain information, to commit witnesses to particular stories, and to obtain admissions from opposing parties. Their admissibility in evidence is limited. Knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

In American practice, a deposition is distinguished from an affidavit and usually refers to an examination under oath before a stenographer or a Court reporter (but not a judge), akin to the Canadian examination for discovery, at which the questioning party is allowed great latitude and gets to question witnesses on essential elements of relevant evidence.

As Burrill wrote:

"Deposition: The testimony of a witness, put or taken in writing, under oath or affirmation, before a commissioner, examiner or other judicial officer, in answer to interrogatories and cross-interrogatories, and usually subscribed by the witness."

As modern society became more sophisticated during the early years of the 1900s, judges began to notice that cases were run by ambush, with the defendant not fully aware of the plaintiff's case before trial, and the plaintiff not always aware of the defendants position before trial. In many cases, the matter could have been settled before trial had that knowledge been compellable. Thus, in a controlled manner, litigants are now obliged to present their case to the other side not only in pleadings but also challenged by way of questioning at a pretrial, but under oath cross-examination session known as a deposition.

The cost of a deposition will vary depending on the length of the deposition as a litigant will pay for both the reporter's time and, if so ordered, a copy of the transcript, which usually runs on a per page rate.

Just like the transcript of an examination for discovery in Canada, a deposition transcript, once trial has started, is useful only in the event that a witness changes his story, in which case, the attorney may challenge the witness' credibility by contrasting his evidence at trial with the deposition transcript.

REFERENCES:

  • Berry v American Standard Inc., 888 S.E. 2d 740 (2008)
  • Burrill, A., A Law Dictionary and Glossary (New York: Baker, Voorhis & Co., 1867), page 478.
  • Walden v Crego's Estate, 285 N.W. 457 (1939)

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