Deponent

The legal term deponent refers to a person who gives testimony under oath, outside of the courtroom – either in a deposition, or in a sworn affidavit. A deponent’s testimony is recorded in writing – whether by his own writing, or by a transcription of his verbal testimony. To explore this concept, consider the following deponent definition.

Definition of Deponent

Noun

  1. A person who gives testimony, under oath, outside of the courtroom.

Origin

1520-1530       Latin    dēpōnent-

What is a Deponent

A deponent is an individual who testifies, having been sworn to tell the truth of certain facts, in a deposition, or in a written affidavit. The term deponent is often used interchangeably with the term affiant, which is one who gives an affidavit. A deponent may be a party to the civil lawsuit or criminal action (less common); a party to the legal action, a witness to the events or issue of the legal action, or an expert witness.

What is a Deposition

A deposition is the taking of oral testimony in an out-of-court setting. Depositions may be taken in both civil and criminal cases, and often take place in the office of one of the attorneys involved in the case. An individual involved in the legal action may be requested to give testimony in a deposition by a legal notice served by the opposing party. Should the witness be someone not otherwise involved in the issue (third party witness), or an expert witness, a deposition subpoena may be required.

In the room, a court reporter, or court stenographer, will generally have set up to record the proceedings; though the deposition may also be recorded by video or audio equipment. The person who is to give testimony is sworn in to tell the truth, and then the attorney for the opposition asks him questions. The person testifying in a deposition, called the “deponent,” may be represented during the proceedings by an attorney. The purpose of this is to monitor the questions being asked, and to advise the deponent whether or not to answer certain questions.

The answers given in a deposition are considered evidence and, at trial, they may be used to impeach or discredit testimony of the witness, or to refresh his memory about something he had previously stated. In addition, should the deposed witness not be available during the trial, relevant portions of his deposition transcript may be read into the trial record.

Is a Deponent Required to Cooperate

Depositions are an important part of a process called “discovery,” in which the parties to a legal action may attempt to gain information and evidence. Attorneys for the parties are allowed to demand the other party take part in a deposition by sending a Notice of Deposition. They are also allowed to issue a subpoena, which is a legal document ordering the party to attend and give testimony. People not directly involved in the legal action cannot be required to testify by such a notice, but must be subpoenaed. Still, once the witness receives this legal document, he is required to attend the deposition, and to answer questions.

A party to the legal action does have the option of refusing to answer a question, however there may be consequences later. Normally, the individual’s attorney, who is sitting in on the deposition, is the one to object to a question on some specific grounds, and advise his client not to answer. Should the attorney asking the questions decide the question is important, and ask the court to step in, the judge will decide whether or not the objection was valid. If the judge determines it is not, the deponent will be required to answer the question. Refusing after having been ordered by the court to cooperate may result in contempt of court charges.

Example of Deponent Refusal to Cooperate

Armando is being sued by his business partner, Tom, for allegedly taking property belonging to the business for his personal use. The business is having difficulty keeping its doors open, as the partnership was dissolved a few months earlier. Tom believes Armando took the property because he was angry about the pair had ended their personal, romantic relationship. He knows Armando didn’t want that made public, so he didn’t specifically include their relationship in the complaint.

Armando is now in a deposition, being questioned by Tom’s attorney. When the attorney asks Armando specific questions about his feelings about the breakup, and specific comments he made about the business property at the time. Armando refuses to answer the questions, not wanting details about his sexual preference, and his personal relationship, to be made public.

In this example, deponent Armando has the right to refuse to answer questions during his deposition, however the court may override that refusal later. In fact, Tom’s attorney files a motion with the court to compel, or force, Armando to answer the questions, as he is attempting to show the court that Armando had made threats about taking whatever he wanted from the business in retribution. The court is likely to order Armando to answer the questions, and if he still refuses, he may be sanctioned with a fine, or even spend some time in jail.

Federal Law for Deponents

While each state has its own laws regarding discovery and depositions, they generally mirror federal law on the topic. Federal law for deponents and depositions can be found in the Federal Rules of Civil Procedure (FRCP), Title V, Rules 26-37. According to these rules, even giving an incomplete or evasive answer can be considered failure to answer, and subject the deponent to penalties.

How a Deponent Can Prepare for Deposition

Although a deposition takes place outside the courtroom – usually in a conference room in a law office – its importance cannot be ignored. Anyone facing a deposition, in which he will be asked a wide variety of questions by the opposing party’s attorney, should prepare ahead of time. The following are tips for a deponent preparing for a deposition:

  • Cameras are Rolling – Understand that a court reporter, and possibly a voice and/or video recorder, will be recording everything that happens during the deposition. Comments made, and even actions might later be used to discredit the witness.
  • Speak Clearly – Because a court reporter is recording everything that is said, remember not to speak over the person asking the questions, and to speak up and speak clearly.
  • Don’t Elaborate – Answer the question without telling “the rest of the story.” It is perfectly ok to say “I don’t know,” or “I don’t remember,” if that’s the truth. If the attorney attempts to ask the same question in different ways, it’s ok to make it clear that the first response is your answer. If your attorney objects to a question, don’t start speaking – or stop speaking right away.
  • Ask for Breaks – Although the attorney doing the questioning may go on and on, the deponent has the right to take breaks at any time. In fact, it is important to do so. The need to use the restroom, to get something to eat or drink, and even the need to simply take a break outside the scrutiny of everyone in the room, are all valid reasons to take breaks.
  • Take Some Time – Many attorneys engage in the tactic of asking a bunch of questions very quickly. This rapid-fire questioning often unsettles witnesses, making it more likely they will “slip up” and give more information, or even change their answers. Deponents have the right to control the pace of questioning, and should take a moment to fully understand each question asked, and to reflect on the answer, before responding.
  • Remain Calm – Giving a deposition is a stressful event, and the attorney doing the questioning may play on that, creating an atmosphere of anxiety. It is important for the deponent to understand that he does not have to convince anyone, defend himself or his position, explain something the attorney doesn’t understand, or even to be charming. It is his job to give brief, concise, and truthful answers only to the question asked. The deponent’s attorney, present at the deposition, should aid in this effort, as well as objecting to any questions that are out of line.

During the Deposition

Many experts point out how important it is for a deponent to take his time giving his answers. In fact, the pace should look like:

Question … Pause … … … Answer

In fact, the whole thing should feel a little disjointed, or with a bit of a disconnect between questions and answers. Getting into a “comfortable conversation” with the interrogator – person asking the questions – plays into his or her hands. Take control by pausing after every question to consider the answer. Begin speaking only after you feel you have the most accurate, brief answer in your head.

Taking a few seconds – or minutes – to consider your answers allows you to be sure you use the words you want to use, and don’t say anything you’ll wish you hadn’t said later. Although the interrogator is still going to ask whatever questions he wants (within reason), the deponent can control the pace, not allowing the interrogator to manipulate him.

Deponent Example of Perjury

In the late 1980s, Millard F. McAfee – owner of Amarillo By-Products cattle hide processing company was sued for substituting lower quality products to its customers. McAfee took part in two depositions during the course of the lawsuit. He was later charged with committing perjury in his deposition testimony.

McAfee claimed that federal law regarding false statements under oath did not apply to him as a deponent. The trial court did not agree, and he was convicted. Although McAfee’s case eventually made its way to the Supreme Court, his conviction was upheld.

Related Legal Terms and Issues

  • Affidavit – A written statement made under oath, for use as evidence in court.
  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Deposition Transcript – A written record of everything that is said during a deposition, taken by a court reporter, or transcribed from an audio record.
  • Discovery – The pretrial efforts of each party to obtain information and evidence.
  • Expert Witness – A witness possessing training, education, skill, or experience in a specific subject, that is beyond that of the average person, who is allowed to give an opinion at trial.
  • Perjury – The willful telling of an untruth, or giving of false testimony, after having taken an oath.
  • Subpoena – A writ issued by the court ordering a person to appear as a witness in a judicial proceeding, or requesting submission of certain evidence.

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