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Being deposed--literally.

Given the increase in litigation against human service agencies, administrators and staff need to be aware of the process and what might be expected of them. One challenge they may encounter is a deposition. Without proper preparation, it can be an unsettling experience.

A deposition is a sworn oral or written statement or testimony requested of a witness who may be unable or unavailable to appear in court due to illness or limitations on the court's jurisdiction. It usually takes place after a suit is filed, although it may be done prior if it would "prevent a failure or delay of justice" (Federal Rules of Civil Procedure).

Any situation that prompts a lawsuit to be filed can also cause a worker to be deposed. Examples include allegations of improper conduct in an abuse investigation, sexual harassment in the counseling setting, employment discrimination, a breach of confidentiality, or a failure to properly follow mandated agency procedures.

When a deposition is taken in anticipation of its use at trial, it has several advantages:

* The person being deposed (deponent) relates knowledge close to the time of events in question, thereby minimizing concerns about faulty memory;

* Based on the deponent's testimony, additional evidence may be required or prove unnecessary;

* The element of surprise can be avoided;

* Both sides can evaluate the demeanor, believability, and emotional tenor of the witness.

There are also disadvantages:

* Depositions are expensive to conduct. The cost of attorneys, stenographers, and reduction to print mount quickly;

* A deponent may feel compelled to be adversarial rather then fully open and forthcoming;

* If the matter does come to trial, there may be a lack of spontaneity. Witnesses may become rigid in their recollection and description of events.

At a deposition, deponents swear or affirm before someone authorized to administer oaths that the testimony they are about to give is truthful. Often the stenographer who records the testimony will administer the oath. The deposition also may be done in writing (called an "interrogatory") or by videotape.

Various kinds of questioning may take place, depending upon whether the witness is "hostile" or "friendly." Witnesses retain certain privileges, including attorney-client privilege (depending on the state). Therefore, the worker's attorney may object to certain questions being posed by the opposing side.

The deponent reviews and signs the deposition--usually before a notary--after it has been transcribed. This will ensure that the stenographer accurately recorded what was said and did not substantively change, clarify, or "fix" the testimony.

A deposition may be admitted into evidence at trial by either party and for various reasons. Failure to appear at a deposition may result in sanctions by the court, including awarding the other party procedural benefits at trial and monetary sanctions against the reluctant witness.

Only a small percentage of human services workers are ever deposed, but the potential is always there. If you are called as a witness to give a deposition, your attorney should thoroughly prepare you beforehand. Your familiarity and comfort with the process will make you a credible and convincing witness.

Daniel Pollack is a lawyer and professor at Yeshiva University's Wurzweiler School of Social Work and a senior fellow at the Center for Adoption Research at the University of Massachusetts. He welcomes your comments, and can be reached at dpollack@yu.edu
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Title Annotation:legal notes
Author:Pollack, Daniel
Publication:Policy & Practice
Geographic Code:1USA
Date:Sep 1, 2004
Words:546
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