Civil litigation is the process of one person, company or other legal entity, suing another person, company or other legal entity for money, or to protect some other legal interest. In the context of civil litigation, they are referred to as “parties” to a lawsuit. Federal and state civil judicial systems are governed by a sets of rules, which outline the parties’ procedural rights and remedies while involved in civil litigation. [Federal Rules of Civil Procedure (FRCP); and South Carolina Rules of Civil Procedure (SCRCP)]. The state and federal systems are very similar in structure and procedure. In fact, most state rules of procedure closely follow the federal rules in many respects, with local rules of court varying from state to state.
Once involved in a civil lawsuit, the parties are entitled to engage in “discovery,” to gather information and documents related to the claims and defenses involved in the suit. In addition to exchanging written materials, requesting information and documents (Interrogatories and Requests for Production), and issuing subpoenas, the parties are able to notice “depositions,” taken under oath, of the parties to the lawsuit, and non-party witnesses who might have information pertaining to the claims and/or defenses in the lawsuit.
The purpose of a deposition is to allow the parties to understand the facts as they relate to the claims and defenses involved in the case, so that there is no “trial by ambush” like it was many years ago, before the rules allowed for various forms of discovery in civil litigation.
Who Attends a Deposition
Shortly after filing and serving the civil lawsuit, a party is entitled to notice depositions of parties, party representatives, ordinary fact witnesses, and expert witnesses. A court reporter is present to “swear in” the witness by asking if each witness swears or affirms to tell the truth. In addition, the court reporter records and transcribes everything that is being said by the persons in the room, usually the attorneys and witnesses on record at the time of the deposition.
Depositions Can be Used to “Impeach” a Witness
If a witness at trial testifies inconsistent to his or her earlier deposition testimony, attorneys are able to make reference to specific testimony, citing page and line numbers in deposition to “impeach” witness credibility. Prior to trial, attorneys identify and make notes about the page and line numbers of testimony that they intend to elicit from witnesses, so that if there is an inconsistency, the witness can be quickly reminded of the inconsistency in front of the jury. His credibility is being questioned. That is the essence of impeachment. Here is an abbreviated version of impeachment cross examination of a witness who says one thing in a deposition, then changes his or her testimony at the time of trial:
Question: “You testified to XYZ under oath on December 20th of last year, when we met to discuss what you knew, correct?
Question: And today, at trial, one year later, your testimony has completely changed.
Question: You promised, under oath, to tell the truth on December 20th of last year; and you swore to tell the truth today when you stepped up onto the witness stand, correct?
Answer: Yes. So please tell the jury which testimony is the truth.
(the witness will typically then try to explain why there is an inconsistency to avoid looking like a liar)
“Discovery” Depositions and Trial Depositions
Most depositions are taken in the context of “discovery,” to determine and record what the witness plans to testify to at trial; and therefore, the witness not only appears for the deposition prior to trial, but also appears at trial. However, the rules allow for a party to specify that a deposition is being taken for the purpose of trial testimony, in lieu of the witness appearing at trial.
For example, it is very expensive for an expert witness physician to shut his or her practice down for at least a half a day, sometimes a full day, to drive to the courthouse and wait to be called to testify etc… Therefore, the South Carolina Rules of Procedure allow for a party to go to the doctor’s office with a videographer to videotape (actually digitally record) a doctor’s testimony. That video is then played for the jury at trial, as if the doctor were testifying in the courtroom. This option typically saves time and money for everyone involved on many occasions. Prior to the videotaped deposition, attorneys may take the discovery deposition of a doctor as well, to see what he or she might testify about in the videotaped deposition for trial.
Use of Deposition Transcript for “Unavailable” Witness
If a witness whose deposition was previously taken for the purpose of discovery, disappears or is unavailable for various reasons, the court can allow the written deposition transcript to be read to the jury, in lieu of the witness appearing at trial. However, the “unavailability” has to be due to the witness not showing up when subpoenaed, or for some other reasonable outside of the control of the attorney calling the person to testify. In other words, an attorney cannot simply tell his previously deposed witness to not show up to give his or her side of the case an advantage at trial
Rule 30(b)(6) Corporate Representative Depositions
When a corporation is a party to a civil lawsuit, someone is required to testify on behalf of the corporation regarding issues pertaining to the lawsuit, and documents that are relevant to the lawsuit. South Carolina Rule of Civil Procedure 30(b)(6) allows one party to send a notice to an opposing corporate party to produce one or more witnesses to testify to specific issues, and to produce specific documents in relation to issues and their testimony. The corporation is then bound by the testimony of the appointed witness(es); and that testimony is considered testimony of the corporation as to the issues outlined in the Rule 30(b)(6) Notice of Deposition. Even if the corporation is not a party, but a corporate representative is a fact witness in a corporate capacity, an attorney can send a subpoena and Notice of Deposition for the corporation to produce a witness to testify.
Deposition Content: What Kinds of Questions are Asked
Because each case involves different facts, no deposition is exactly alike. However, there is a consistent pattern to depositions. For example, the following is a basic outline for an auto collision deposition of a person who has been injured in an auto collision:
Date of Birth
Criminal Arrests and Convictions
The Collision (Before, During and After)
Statements and Actions of the Other Driver, Police, or Witnesses
Injuries Sustained in the Collision
Pain and Suffering
Medical Treatment Caused by the Collision
Physical and Mental Pre-existing Conditions
Affect of Injuries on Activities of Daily Living and Lifestyle
Permanent Injuries From the Collision
Mental Anguish From the Collision
Medical Bills Incurred
Time Duration of Depositions
A deposition can last for a few minutes, or several hours, depending on the testimony involved. It all depends on the complexity of the subject matter. For example, someone who witnesses an event will take less time to depose that an expert witness who has reviewed hundreds of documents to form opinions about issues in the case.
Tell the Truth, and Don’t Guess
Two of the most important things to remember about testifying in a deposition are to always tell the truth; and also, to not guess at answers. Saying “I cannot recall,” or “I am not sure” is preferable to guessing about what might be true. A witness can always go back and refresh his or her recollection following the deposition, then testify accurately at trial with more specific information. Not telling the truth is called perjury, subject to criminal penalties. No attorney can knowingly allow his or her client or witness to not tell the truth.
Civil Depositions While Criminal Charges are Pending
There are instances where testimony in a civil case may incriminate the person related to pending criminal charges. In that case, it is advisable to either postpone the civil case deposition until the criminal charges are resolved, or instruct the witness to exercise his or her right against self-incrimination by “pleading the 5th.” (5th Amendment of the U.S. Constitution protection against self incrimination).
The subject of depositions is far greater than the scope of this brief article. The McKnight Law Firm can answer any questions you may have regarding depositions. Usually, these discussions ensue during our representation of clients involved in civil litigation, which occur when insurance companies refuse to pay our clients the money they deserve in serious injury, wrongful death, and other matters within the scope of our representation.
Jody McKnight is the owner of the McKnight Law Firm, Charleston, South Carolina. His firm focuses on serious injury and wrongful death cases, arising from all causes involving negligence, including product liability, auto accidents, boat accidents, dram shop (liquor liability) matters, and premise liability cases. Mr. McKnight is an active member of the South Carolina Association for Justice, the Southern Trial Lawyers Association. He founded the Charleston Art of Trial Advocacy Workshop in Charleston, SC. He has tried numerous cases before judges and juries in South Carolina state circuit courts, as well as the United States District Court.