The general definition of a deposition is: a witness’s sworn out-of-court testimony. It used to gather information as part of the discovery process and, in limited circumstances, may be used at trial. The witness being deposed is called the “deponent.”
The Deposition Notice:
The deposition is scheduled in good faith between the attorneys in the case at a time and place that is agreed upon. Once the date is chosen, a formal deposition “notice” is issued by the attorney that is taking the deposition. An important and sometimes overlooked aspect of the notice is the manner in which the deposition will be recorded. A deposition where a video is being taken in addition to a court reporter’s transcript involves a different type of preparation for the witness.
The oath is given to the witness. Questions are asked. Answers are given. The testimony is transcribed. It is a formal process of interviewing a witness or a party to the case to understand what they know, the basis of their knowledge, and their positions in this case. The central purpose of a deposition as part of the discovery process in litigation is to get at the facts and circumstances underlying the case. Of equal importance in the deposition is the ability of the examining attorney to gauge the credibility and demeanor of a witness in evaluating how the witness will present at trial.
The deposition transcript can be used in court for a variety of purposes, most commonly to call into question the credibility of a witness (impeachment) such as when their story changes between the deposition and trial. Portions of the transcript can also be used as attachments to court pleadings as evidence when seeking the judge’s ruling on a question or claim by one of the parties prior to trial.
The duration of the deposition is limited to “one day of seven hours” which can be expanded or reduced by an order of the court or agreement by the parties.
The attorney for the witness and attorneys for other parties in a multi-party case can make “objections” on the record during the depositions. These objections are noted by the court reporter and appear in the transcript, but the testimony continues. There is no judge that can rule on the objections. If the transcript is used in court the judge can later decide whether the objections are founded and rule accordingly.
The Colorado Supreme Court is seeking public comment on proposed changes to the Colorado Rules of Civil Procedure. Amendments to rules 1, 12, 16, 16.1, 26, 30, 31, 34, 37, 54, and 121, § 1-22 are proposed; some of the amendments, including those for Rule 16, “Case Management and Trial Management,” are extensive. A redline of the proposed changes is available here.
Written comments to the proposed rule changes can be submitted to Christopher Ryan, the Clerk of the Colorado Supreme Court, at 2 East 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 17, 2015.
A public hearing on the changes will be held on April 30, 2015, at 1:30 p.m. in the Colorado Supreme Court courtroom. The courtroom is located on the 4th floor of the Ralph Carr Justice Center at 2 East 14th Avenue in Denver.
I intend to provide detailed comments and commentary on the rules. Many of the amendments are modeled on the CAPP (Civil Action Pilot Project) rules and have mixed reviews from attorneys. Having handled several cases under the CAPP rules, I see the pros and cons, many of which are a function of adapting litigation practice and strategy to the new rules.