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Understanding Depositions During US Patent Litigation

An essential step in the discovery process, deposition is a testimony given under oath and recorded in writing by a court-authorized official, usually outside of court and before the trial. The "deponent" is the witness who is being cross-examined.
One of the most effective legal resources available to a party in a trial in the United States is a deposition. The majority of civil lawsuits are decided during depositions rather than in court. Experienced counsel, analyzing a deposition transcript, can typically foresee the likely outcome of a trial and can offer proposals for settlement appropriately.

While court testimony during high profile trials tends to attract most of the limelight, cases are built (or unbuilt) even more during depositions of fact witnesses and expert witnesses much before the actual trial. What are depositions, though, and how do they operate?

What is a Deposition?

An essential step in the discovery process, deposition is a testimony given under oath and recorded in writing by a court-authorized official, usually outside of court and before the trial. The "deponent" is the witness who is being cross-examined.


When Does a Deposition Take Place?

Depositions typically take place at the outside counsel office. The witnesses are questioned extensively by the counsel regarding the events important to the case. A court reporter administers the same oath that the witnesses would take in a courtroom before the deposition begins. The court reporter records the entire deposition verbatim during the entire session. All parties to the lawsuit are permitted to attend the deposition.


The deponent's attorney may object to any deposition question. Typically, there are only two types of objections that can be made: one is to object to the type of question being asked, and the other is to assert privilege (for example, if the question pertains to contents of conversation with the attorneys in the case). In the former case, deponent must, however, still answer in response to each key question before a decision is made.


Depending on how many witnesses are involved, the length of the deposition can range from brief (such as a half hour) to as long as a week or more. Giving incorrect information or making a false statement during a deposition could result in criminal or civil penalties because the deponent is under oath to answer truthfully.


What is the Purpose of Deposition?

A deposition is an opportunity for knowing the technical details of the case better and not only about collecting favorable testimony. The last thing you would want is to be caught off guard by hearing damning testimony for the first time when that witness takes the stand, so if, for example, a witness' version of events might weaken your case, you would need to know about that long before trial. In essence, a deposition is a chance for both parties to identify the weak points in their respective cases and plan how to address or refute them at trial.


Types of Deposition


Oral Deposition

Typically, the court is not directly involved in depositions. The parties individually start and oversee the process. Typically, a deposition merely includes the deponent, the attorneys for all parties involved, and a person authorized to administer oaths. Although electronic records are becoming more prevalent, stenographers still occasionally record depositions. All parties are permitted to interrogate the witness during the deposition. Lawyers often have limited authority to object to questions asked during a deposition and are not permitted to guide their clients' testimony.


Typically, depositions are not admissible at trial. However, the hearsay rule has three exceptions that are particularly pertinent to deposition testimony. The first occurs when a party makes an unfavorable admission in a deposition. The second occurs when a witness's deposition and trial testimony are at odds. The third occurrence is when a witness cannot appear at trial.


Also, contrary to what innumerable films and television shows would have you think, it is considered unfair to introduce a surprise witness at the last minute of a trial. The witnesses should all be identified and their testimony prepared for the trial by the time it starts.


Further, any other party may move to end or restrict the deposition if it is being taken in bad faith, with the intent to harass or humiliate the deponent or a party. Until the court determines on the motion to limit the deposition, the moving party may ask for a suspension of the deposition. The deposition may resume and proceed after the court rules on the pertinent issue.


Written Depositions (Interrogatories)

Written questions may also be used to conduct depositions. Questions are pre-submitted by the parties in this type of deposition. The deponent only responds to such questions during the deposition. Written question depositions are less expensive than oral question depositions since the presence of the parties' attorneys is not required. This approach, however, is often viewed as less effective because it is challenging to follow up on a witness's responses when the witness only records his/her words. Interrogatories, which are written inquiries, are typically used by parties in place of depositions.

US Statutes Governing Depositions

The Federal Rules of Civil Procedure (FRCP) Rule 30 for depositions is followed in almost all civil matters in US federal courts. Some states follow the discovery rules set in the court rules, which differ from state to state.


According to Rule 30, there can only be ten witnesses total on each side, and each witness can only testify for a maximum of seven hours each day. A subpoena is used to inform the deponent of the location and time. A legal notice is given to the key deponent's attorney rather than a subpoena in cases where the key deponent is from the opposing party. A subpoena is required if the deponent is a third party who is not on one of the sides (defendant or plaintiff).


Depositions may also be taken in criminal matters by the jurisdiction in various US states. Depositions in criminal proceedings in the US must adhere to Rule 15 of the FRCP. Deposition-related laws vary from state to state. To preserve the witness' testimony for the trial, many jurisdictions require that they take a deposition.


If the deponent is not a member of either party to the action, a subpoena can be issued to them, just like in civil lawsuits. If the deponent is from the opposing side, a legal notice must be sent. In the event that the deponent is unable to attend the trial, the deposition can be used as the witness' statement in lieu of the witness testifying. In several places, the deposition must be videotaped if the deponent is a minor.


Deposition rules vary by jurisdiction. See State Civil Procedure Rules. In the Federal Rules of Civil Procedure, Rule 30 governs depositions by oral questions and Rule 31 governs interrogatories and depositions by written means.


State-Wise Rules of Civil Procedure

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Trial Vs Deposition

Preparing to survive a deposition is very different from preparing to testify at trial. One only has the freedom to present one's own case in front of a fact-finder who is concerned with the truth during a trial, such as a jury or judge. One first opens up and voluntarily discloses the case's background at trial. We go into the "rules" of courtroom testifying in another piece. It's important to remember that these are two very distinct forums with very distinct goals.


Because intelligent, articulate people are not allowed to express their side of the story during depositions and must instead stay stoic and unresponsive, they find depositions to be incredibly challenging.


Conclusion

One of the most effective legal resources available to a party in a trial in the United States is a deposition. The majority of civil lawsuits are decided during depositions rather than in court. Experienced counsel, analyzing a deposition transcript, can typically foresee the likely outcome of a trial and can offer proposals for settlement appropriately. Answers offered in a deposition are frequently used in court, and if a witness changes his or her evidence from that given in the deposition, the judge or jury may find it damaging. Most attorneys are experts at "locking in" opposing witnesses during depositions to establish testimony and prove their cases.


Be sure to educate yourself with the details of any potential depositions if you're ever expected to testify as a witness in a case. It could also be wise to consult with an experienced litigation and appeals lawyer who can advise you and protect your interests, especially in complicated cases involving numerous parties.


Note - The information included in this article is for educational purposes only and is not intended to be a substitute for legal advice.


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