A deposition in US law, or examination of the invention in Canadian law, involves taking oral testimony from an off-court sworn witness who can be reduced to a written transcript for later use at court or for the purpose of the invention. Depositions are typically used in litigation in the United States and Canada. They are almost always done out of court by the lawyers themselves, without the presence of a judge to supervise the examination.
Deposition developed in Canada and the United States in the nineteenth century. Deposition is part of the discovery process in which the litigants gather information in preparation for the trial. In countries that do not provide deposition, testimony is usually preserved for future use by way of direct testimony in the courtroom, or by written written statement. Some jurisdictions recognize the affidavit as a form of deposition, sometimes called "deposition over a written question." While in common law jurisdictions such as England and Wales, Australia and New Zealand recording oral evidence from supporting witnesses ('obtaining statements') are routine during pre-litigation investigations, have the right to raise oral questions to opposing witnesses before the trial does.
Video Deposition (law)
United States
Depositions is a preferred term in US federal court and in most US states. Some countries also refer to deposition as a check before the trial (EBT). However, in unusual situations, deposition sometimes occurs during or even after an experiment.
Civil Procedures
In almost all pending cases in US federal court, the deposition is done under Rule 30 of the Federal Rules of Civil Procedure. Around 35 countries use the FRCP version in their state court. Other countries have rules of discovery established either in court rules or laws, and which are somewhat different from one country to another. According to FRCP Rule 30, the amount of deposition is limited to 10 depositions per side (ie plaintiff and defendant), with deposition every deponent limited to 1 day in 7 hours (unless otherwise specified in District Rules).
The person who will be deposed in a deposition, known as deponent, is usually told to appear at the right time and place using a subpoena. Often the most wanted witnesses (deponents) are opposed to the action. In that case, a legal notice may be given to that person's lawyer, and a subpoena is not required. However, if the witness is not a party in a lawsuit (a third party) or reluctant to give testimony, then a subpoena must be filed with that party. To ensure accurate records of statements made during deposition, a court reporter is present and usually transcribes deposition by means of digital or stenographic recordings. Depending on the amount of controversy and witness's ability to appear in court, audio or video recordings of deposition are sometimes taken as well.
Deposit behavior
The settlement is usually done in the office of a court reporter or in the office of one of the law firms involved in a case. However, the deposition is also sometimes taken at the workplace or witness house, or in the conference room of a nearby hotel. Generally deposition is attended by the person to be overthrown, their lawyers, court reporters, and other parties in cases that may appear personally or represented by their counsel. Each party in their actions and lawyers has the right to attend and ask questions.
Before taking the deposition, the court reporters administer the same oath or affirmation that the deponent will take if the testimony is given in court before the judge and the jury. Subsequently, the court reporter made a digital recording or verbatim stenography of all that was said during the deposition, in the same way that the witness's testimony was recorded in court. Some jurisdictions allow stenomask technology as a substitute for traditional stenographic equipment, although many jurisdictions still prohibit stenomasks due to its confusing effect on some lawyers and witnesses.
Lawyers for plaintiffs plaintiffs are often present, though this is not required in all jurisdictions. The lawyer who has ordered the deposition begins to question the deponent (this is referred to as "direct examination" or "direct" for the short term). Since nods and movements can not be recorded, witnesses are instructed to answer all questions aloud. Upon direct examination, other attorneys present have the opportunity to cross-examine the witness. The first lawyer can ask more questions at the end, in redirect , which can be followed by refund .
During the deposition process, one lawyer or the other may object to the question posed. In most jurisdictions, only two types of objections are allowed: The first is to affirm the privilege and the second is to reject the form of the question being asked. Objection of forms is often used to signal to witnesses to be careful in answering questions. Because judges are not present, all other objections, especially those involving evidence rules, are generally preserved to trial. They can still be created at a certain time to indicate serious problems to judge and witness, but witnesses must answer the question despite objections. If the objection form is made, the opponent still has the right to repeat the same question and ask it again. Indeed, in Texas, attorneys are very aggressive in using objections to indirectly train their witnesses on the record that all objections beyond the four narrow categories are now banned and making such forbidden objections free up all objections to questions or answers in issue. California is the main "outlay" of deposition rejection; under the California Civil Discovery Act passed in 1957 and revised in much of 1986, most objections must be given to deposition records (and must be specific about the inappropriate nature of the question or response) or they are permanently released.
Just like the oral test in the trial, the deposition can get hot at times, with some lawyers asking harassing questions to provoke witnesses to lose their emotions, some witnesses give evasive answers, and everyone using indecent language. In extreme situations, one side or the other can ask journalists to mark records, then can suspend deposition, demand transcripts in a hurry, and propose an emergency movement to force a response, for protection orders, or for sanctions. Some courts have judges or commissioners of discovery ready for such a possibility, and parties should use it for referees such as telephone disputes before resorting to filing motions. In the extreme circumstances in which the relationship between lawyer, party, or witness has been completely damaged, the court may require the use of refereed invention who will have the authority to sit at the deposition and immediately ruled on objections as they are presented, or may order that all further deposition done in court before the judge.
Parties may bring documents to the deposition and submit document identification questions to establish a basis for making documents received as evidence in court, as long as the deponent acknowledges his authenticity. Court reporters and all parties in this case usually provide copies of documents during the deposition process for review.
In recent years, the development of litigation technology has enabled the use of paper documents to be replaced by electronic documents and exhibitions in deposition. In such cases, a checking attorney marks and distributes official exhibits electronically using a laptop or tablet device. Deponents, court reporters, and all parties receive official digital exhibitions or copies of courtesy. Combined with direct transcript feed technology and legal videography, digital exhibition technology has made participation in deployment far more functional and popular.
Based on FRCP 30 (d) (1) and his country counterparts, deposition should normally be for no more than seven hours per day per deponent, unless otherwise specified by the parties or ordered by the court. This means that the depositioning party who knows that the deposition will run for more than one day should ask the deponent to set more time, or, if the deponent is uncooperative, go to court and file a motion for a longer deposition. California is the main exception, because it has a default time limit of no ; deposition can theoretically take place indefinitely, or at least until the deposition becomes so obviously exaggerated and burdensome that the deponent can move for a command of protection. However, in January 2013, the California legislature changed its previous rules to conform to federal rules, now requiring that deposition would normally be limited to seven hours of total testimony. It should be noted that this new California Regulation does not apply to "any case submitted by an employee or job applicant to an employer for actions or omissions arising from or relating to employment."
After the deposition, this transcript was then published in hard copies, given to the deponent and any party wishing to purchase a copy. The booklet will have case information (court name, case number, and party names) on the front. Inside, the pages have line numbers along the left margin, so the parties can precisely quote testimony by page and line in the subsequent court documents. The time stamp is inserted into the margin if the video recording is being made; if the witness can not be tried, the parties or the court will use the time stamp to identify acceptable segments to be edited by the video editor to be shown to the jury. Finally, the concordance is automatically generated by the stenographic system software and is included on the back of the booklet.
Most court reporters can also provide digital copies of transcripts in ASCII, RealLegal, and PDF formats. The Court reporter keeps a copy of the documents provided to the deponent during the deposition for document identification questions, except digital documents and exhibition technology are used, in this case the deponent and all parties receive the official exhibition in real time. The Deponent has the right to read and sign the transcript of the deposition before proceeding to the court. Deponents can not alter their statements on the transcript of deposition, but under rule 30 (e) they may correct in additional "errata sheet" any errors in the deposition transcript shortly after the testimony has been typed and tied.
Errata sheets allow the deponent to make modifications that make "changes in shape or substance," giving the option deponent to alter their notes from the original transcript. Problems may arise when a party attempts to make substantive changes to the testimony through the sheets of error.
Deposit usage
The main values ​​for obtaining the deposition, as well as any process of discovery, are to provide all parties in litigation in the contested case, a fair preview of the evidence, and to provide supporting documents for further trials and dispositional movements. This process provides a "level of playground" of information amongst the plaintiffs and avoids surprise in court (traditionally regarded as unfair tactics). Another benefit of taking a deposition is to keep witnesses' records fresh while the trial may be months or years away. When the testimony of a witness in an open court is inconsistent with the one given to the deposition, a party may introduce a deposition to indict (or deny) the witness. If witnesses are not available for trial (usually because they are dead, seriously ill, or live hundreds of miles away), their deposition can be read or played in front of a jury and made part of the record in this case, with the same. the power of the law as a direct testimony. In some countries, stenographic, audio, or video footage of deposition may be offered as evidence even if witnesses are available. The opposite party's deposition is often used to generate self-incriminating statements from deponents, as well as document identification questions can make the evidence acceptable for trial and conclusion assessment movements.
Sometimes, after a number of witnesses have been overthrown, the parties will have sufficient information that they can reasonably predict the outcome of a prospective trial, and may decide to arrive at the settlement of the compromise, thus avoiding trials and preventing additional litigation charges. Therefore, although most depositions are not recorded, opposing advisers can use the opportunity to get an impression of the influence and appearance of witnesses, as these are the factors that tell how the person will be present before the jury. Furthermore, transcripts of deposition are often proposed to support motions for summary judgment as evidence that no factual issue can be traced. A moving party may use a transcript to state that even if all the testimony given to the deposition is given again in court, there is no plausible factor that can be found in the opponent's interest in material fact matters. The rationale is that in general, a witness must provide consistent testimonies on all material fact issues both in deposition and in court (unless there is a good reason to change a person's answer), or inconsistencies can and will used to belie its credibility.
Criminal procedure
In some jurisdictions of the United States, deposition may be taken in criminal cases, for different reasons among jurisdictions. In a federal criminal case, the Federal Rules of Criminal Rules Rule 15 rules regulate the deposition taking. Each country has its own laws governing the taking of deposition.
Most jurisdictions determine that deposition can be taken to immortalize a witness's testimony, that is, to preserve their testimony for trial. If the person requested to testify (the deponent) is the party filing the lawsuit or a person working for the party involved, notice of time and place of examination before the trial may be given to another party's attorney, but if the witness is an independent third party, a subpoena must be made to him if he is stubborn. This happens when a witness can not testify in court. The deposition of the witnesses is taken and, if the witness can not be present at the trial, the deposition may be used to establish the witness's testimony in lieu of witnesses who actually testify. Regarding the deposition to preserve the testimony, the Confrontation Clause of the Sixth Amendment to the Constitution of the United States establishes the constitutional right of the accused to be present during the deposition and to cross-examine the witness. The accused may override this right.
Some jurisdictions specify that deposition may be taken for the purpose of the invention. In this jurisdiction, the defendant has no constitutional right to be present, even though such right may be established by law.
Some jurisdictions require that because of the sensitive nature of taking minors deposition, it should be recorded.
A defendant in a criminal case shall not be overthrown without his consent because of the Fifth Amendment of the right not to bear witness to himself.
Maps Deposition (law)
Canada
In Canada, the process is almost identical to that followed in the United States, but the process is called a check for discovery. In Australia, England, and Wales, there is no right to conduct verbal examination of the disputants in civil litigation, except that in England and Wales the process of pre-litigation discovery allows each party to make a written question and the answer to that question will be relied upon if there is a difference in the oral evidence given in the Court. Oral exams are usually completed after the request and request for information with the exchange of written statements of documents and sometimes interrogatories. Often written statements are exchanged before trial, but the first opportunity to verbally question the evidence that the opposition is usually on trial.
This process is considered to be time consuming and costly when it is done indefinitely. As a result, Rule 31.05.1 of the Ontario Civil Procedure Rules has, since January 1, 2010, the examination is limited to discovery up to seven hours per party except with the consent of the other party or leave of Court. British Columbia implemented similar reforms on July 1, 2010, although the new Rule 7-2 (2) can be read in two ways, it seems that each party can check each other for a maximum of seven hours unless a court order otherwise. An alternative reading is that each party is only for review for a maximum of seven hours.
other jurisdictions
The tremendous contrast between civil procedures in jurisdictions where there is no oral examination of the invention, for example in Australia and the UK, and the practice of North America, can be seen by reading the extract from the Report of the Law Reform Commission of New South Wales in 1978. The process is described in detail and intended for an Australian audience. It is clear that the North American process is unknown to Australian lawyers because the authors witnessed the examination for the discovery in Toronto and elaborated in detail the complex rules in Ontario because they were in effect at the time.
See also
- Invention (legal)
- subpoena tecum call
- subpoena ad testificandum
- Section 1782 Discovery
- Interrogator
- Request for Registration
References
Source of the article : Wikipedia
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