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Kevin O'Flaherty

In this article, we will cover, “what is a deposition?”, “who is allowed to take part in a deposition?”, “what takes place during the deposition?”, and “what can the deposition testimony be used for?” We’ll also discuss how to prepare for a deposition in the state of Iowa and some simple steps for giving deposition testimony in Iowa.

What is a Deposition?

In its most basic form, a deposition is an interview, made under oath, outside of the courtroom. The interview is on-the-record and carried out by the opposing attorney in order to gather information about the potential testimony of the opposing side’s witnesses. There are generally two types of depositions: discovery depositions and trial depositions. The main difference between the two is that discovery depositions are a more open-ended process to determine what a witness knows and to get a feeling for how his or how testimony will play out in court. Trial depositions are a little more like what one can expect in a live courtroom, but they are not actually courtroom testimony. The attorney only has one chance to get answers from the witness, so he or she will usually run through a large number of pre-prepared questions, depending on the case.

Who is Physically Present During the Deposition?

Expect both parties in a case to be present, along with their lawyers, and a court reporter who will record the deposition in its entirety. Again, the deposition will typically take place outside of the courtroom, usually at the office of one of the attorneys.

What Actually Takes Place During the Deposition?

The nature of the case (worker’s comp, criminal, etc) may cause the deposition to differ somewhat, but generally, all depositions follow a similar format. As mentioned before, during the deposition an attorney from the opposite party of the witness will ask the witness a bunch of questions in order to better understand all aspects of the witness’s potential testimony. This process ultimately ensures there are no big surprises during the trial. The attorney may ask very general to very specific questions about all aspects of the case. He or she may also ask the witness to identify documents relevant to the case, which will then be marked by the deposition reporter to be included in the deposition transcript. Often the deposing attorney will ask about the accuracy of the documents and their connection to the case.

Can the Questioning Attorney Ask Any Questions He or She Wants?

The questioning attorney may ask any question relevant to the case. Since there is no judge present at a deposition if the attorney party representing the person being deposed feels that the opposing attorney’s line of questioning is erroneous or inappropriate he or she may tell the witness not to answer. Disputes between the two parties will be resolved in one of three ways:

  1. Calling the judges chambers: In real-time, the attorney’s attempt to contact the judge in order to resolve the dispute.
  2. Certifying the question: Upon the refusal of the witness to answer a given question the attorney’s can place that question, “on hold” for the judge to later decide the fate of the question.
  3. Ending the deposition: Either party can terminate the deposition at any time leaving the dispute to be resolved by the judge and then picked up at some point in the future. However, if the judge finds the reason for termination of the deposition disagreeable he or she may hold the terminating party liable for the costs of stopping and starting the deposition.

At the conclusion of the first round of questioning by the opposing attorney, the attorney representing the party being deposed is given the opportunity to “rehabilitate the witness.” This means the attorney supporting the witness will ask the witness a series of questions that cover topics from the adverse attorney’s line of questioning. It serves as a chance to go over or clarify questions that were detrimental to the case the witness supports.

Lastly, the opposing attorney will have a final chance to question the witness and must only cover topics or questions asked by the witness’s attorney.

A deposition can be a long and exhaustive process for the witness, sometimes taking up to three hours, the average limit for deposition.

Why All the Questions? What Can Deposition Testimony Be Used For?

Information Gathering: First and foremost the deposition is used to gather information. Before the two parties even meet for the oral portion of the deposition written discovery usually takes place. This is requested, often by both sides, in order to get written testimony and any documents pertinent to the case. The information from the written discovery is compared to information gathered from the oral deposition and used to reveal any discrepancies or inconsistencies in the witness’s story. This ultimately allows the attorney to have a much better understanding of the intricacies of the case and the evidence the other side possesses.

Impeaching of the Witness During the Trial: It’s very important that the witness’s deposition testimony and testimony during trial match up if the witness is to avoid impeachment during the trial. If there are inconsistencies between the written and oral testimonies the opposing attorney can submit the deposition transcript putting into question the witness’s credibility. Essentially asking the question, “Which is a lie? The deposition testimony, or your current testimony?”

Preserving Testimony of a Witness: It happens that sometimes a witness will die before trial, but after going through the deposition process. In this situation, the witness’s deposition testimony can be entered as evidence and considered during the case.

Motions for Summary Judgment: When appropriate, deposition testimony can be used to show that the facts or arguments presented in the case are undisputed by one side or the other and typically one party or the other will request a motion for summary judgment. The side asking for the motion is called the “movant” and they are asking the judge to rule in their favor based on the facts and evidence presented from the deposition. This sometimes happens when the deposition reveals evidence and information that makes the presented case very similar to a case ruled on in a certain way in the past. In this situation, the motion for summary judgment may be awarded.

Motion for Dismissal: The information gathered from the written and/or oral deposition clearly shows no ground for litigation and the case is dismissed.

Tips For Preparing for a Deposition in Iowa:

Preparing for a deposition can be scary, but it’s not rocket science. Below are a few simple tips:

  • Put yourself in the right state of mind before questioning - no drugs or alcohol;
  • Be kind and respectful to the opposite party;
  • Tell the truth;
  • Focus on answering only what question is asked;
  • Remember that you can take a break! If you get flustered or find yourself talking in endless circles stop and compose yourself;
  • Take time to think before answering the question. They are there for you, not the other way around;
  • If you don’t know the answer just say so. Do not guess.

If you are the witness being deposed, the attorney for the side that your testimony supports will normally meet with you prior to deposition. The goal of this meeting is to make sure you’ve reviewed any pertinent documents, are up to speed on any pertinent information, and to make sure you have a clear understanding of the narrative and argument that the party your testimony is supporting is trying to make.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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