What Is A Deposition In A Wrongful Death Lawsuit?

A deposition in a wrongful death lawsuit is an out of court procedure to take the face-to-face sworn testimony of a witness.

In the article that follows, we’ll explain when a deposition might occur in a wrongful death lawsuit, and some of the basics of how.

What Is A Deposition In A Wrongful Death Lawsuit? (Explained)


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When Does A Deposition Occur In A Wrongful Death Lawsuit?

A deposition is a process to take sworn testimony after a lawsuit has been initiated.

Most depositions are oral depositions, meaning that questions are asked and answered live.

Some jurisdictions allow for written depositions, meaning questions asked in writing, with written responses.

Written depositions are not to be confused with interrogatories.

If the statutes applying to depositions in a specific jurisdiction were followed, the deposition could be used or offered as evidence in some circumstances during hearings or trial.

There is quite a bit of strategy in determining when and if to take the deposition of a witness.

In most cases, attorneys will not pursue the deposition of a witness until paper discovery has been initiated and progressed signficantly.

The reason?

The documents exchanged in the discovery process are often documents that lawyers want to ask the witness about, perhaps to explain, to confront, or to learn more to be able to find even more evidence to use in the case.

Depositions may happen early in a case in the event that a witness is in ill-health, in order to preserve the witness testimony before a death.

Depositions may happen late in a case, close to trial, to get a witness to commit to a particular version of the facts so that the attorney could use the transcript against the witness in the trial.

How Does A Deposition Occur?

A deposition occurs without the presence of a judge.

The most likely setting for a deposition is in a conference room, usually in the attorney’s firm office.

A deposition is initiated by the attorney who wants to “take” the deposition.

Taking someone’s deposition means being the party asking the questions of the witness.

To initiate the deposition, the attorney must follow the statutory process set forth by the laws in the particular jurisdiction.

Usually, a deposition is initiated by serving a subpoena on the witness, stating the date and time of the deposition.

A notice of the deposition is also delivered to the attorney for the opposing party, who is also invited to raise objections during the testimony.

Assuming the subpoena was appropriately prepared and served, if the witness fails to appear, the attorney can move forward with the appropriate legal process to compel the participation of the witness.

Assuming the witness appears at the attorney’s office on the date and time stated on the subpoena, the deposition will be taken.

What Does A Deposition Look Like?

A deposition is less formal than a court proceeding.

Imagine a large conference table.

Usually the parties present at a deposition are: the witness, the plaintiff, the plaintiff’s attorney, the defendant, the defendant’s attorney, and the stenographer.

The plaintiff’s team sits on one side, while the defendant’s team sits on the other.

The witness may have his/her attorney present as well.

The plaintiff and/or defendant do not need to be present at a deposition as they do during a trial, unless of course they are the witness to be deposed.

The witness is not allowed to have anyone sit with them, such as a family member or friend, any more than they would have someone sit with them giving testimony during a trial.

The witness will sit at the head of the table, with the stenographer sitting right nearby him/her, to be able to accurately hear the words spoken to record them.

How Long Will A Deposition Last?

A deposition can be quite short, or it can go very long.

In complex cases with complex issues (and millions of dollars at risk), the deposition of a witness could take days or even weeks, going for 6-8 hours a day.

It just depends on what the witness knows, and what they attorneys are trying to do or learn during the deposition.

How Is Deposition Testimony Preserved?

Traditionally, a deposition is preserved with the assistance of a stenographer.

The stenographer (recording the words with a shorthand device) records both the questions and the answers of everyone who speaks.

The stenographer also swears the witness (do you swear to tell the truth, the whole truth, nothing but the truth?)

Once the deposition testimony has been completed, the stenographer prepares a physical transcript of the testimony for the parties to review and potentially use in the case.

In recent years, deposition testimony has been recorded by audio and/or video devices as well.

What Happens After A Deposition Is Completed?

After the deposition testimony is complete, the stenographer prepares the transcript.

The stenographer offers it to the parties to review to confirm that the testimony was taken down correctly.

The parties may or may not order the transcript, or choose to review it or use it.

In many cases, what the attorney needed to know or learn during the deposition was learned, and the transcript is not needed.

The deposition may be used by the parties to settle the case, or the deposition could be used in the trial to prove a point or impeach a witness.

How Much Does A Deposition Cost?

Stenographers charge different rates.

Some will charge by the hour.

Some charge a flat fee.

Some charge nothing for the sitting, and charge by the word for the preparation of the transcript.

At 1-3 cents a word, a deposition transcript of just a few hours could cost several hundred dollars, so lawyers tend to try and be as brief as possible, as stenographers record “um” and “ah” as well.

When looking at the investment of attorney time, this is where depositions can become really expensive.

Think about how much a deposition would cost if you had a team of lawyers taking or defending a deposition for 6-8 hours a day for a week or even longer.

Can A Settlement Offer Be Made At A Wrongful Death Deposition?

Sure, a settlement offer can be made pretty much any time.

However, cases rarely settle at deposition, unless some new or previously unknown evidence is discovered during the deposition.

Even if this were the case, the settlement offer would not be made or accepted until the parties had retreated to their officers to confer about the evidence and the offer.

Looking For More Information About Wrongful Death Cases?

We are building up a library of articles intended to assist people facing a wrongful death lawsuit from any angle.

The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.

You can find the growing Wrongful Death Article Library here.

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