Your Rights When Subpoenaed for Deposition: A Guide to Sworn Testimony and Legal Protections

It can be scary and confusing to get a subpoena to show up for a deposition. For a lot of people, this is the first time they've been involved in a legal dispute, and the feeling of being a bystander who has to take part can be too much. A deposition is a formal, out-of-court hearing where a witness gives sworn testimony. A subpoena is a legal order. The process is an important part of the legal system, but it is also a high-stakes event where a person's words are recorded and can be used as proof in a lawsuit. Anyone who gets a subpoena needs to know their rights, the specific legal protections available to them, and how to prepare for and get through a deposition.

The Foundation of Your Rights: Subpoena vs. Deposition

The first and most important thing to know is the difference between a deposition and a subpoena. A subpoena is the legal paper that tells you to show up. The deposition is the event.

  • Subpoena. A subpoena is a legal order from a court that tells someone to show up in court or for a legal event, like a deposition. You should not ignore a subpoena because it is a legal document. If you ignore a subpoena, you could be found in contempt of court and have to pay a fine or go to jail.

  • Deposition. A deposition is a formal, out-of-court meeting where a witness gives sworn testimony. A court reporter is there to write down everything that is said, and the testimony is turned into a legal document. A deposition is meant to find out what a witness knows and make sure their testimony is set in stone before a trial.

Your Key Rights as a Witness in a Deposition

A deposition is a formal legal proceeding, and you have specific legal protections that you must understand and assert.

  • The Right to an Attorney. This is a right that can't be changed. You have the right to have a lawyer with you at the deposition. Your lawyer can help you understand the subpoena, get ready for the deposition, and keep you from being asked questions that are not allowed. An attorney can also say no to a question if it is not relevant, is protected by law, or is not appropriate.

  • The Right to Object to Questions. If a question is not relevant, privileged, or inappropriate, your lawyer can object to it. A privileged question is one that asks for information that is protected by a legal privilege, like attorney-client privilege or spousal privilege. A question that is wrong is one that bothers, confuses, or lies to someone.

  • The Fifth Amendment Right Against Self-Incrimination. If a question could make you look guilty of a crime, you can use your Fifth Amendment right against self-incrimination to refuse to answer it. You should only use this powerful right with the help of your lawyer.

The Step-by-Step Deposition Process: A Guide to Sworn Testimony

The deposition process is methodical and is designed to gather information. Understanding these steps can help you be prepared.

  1. Consult an Attorney Immediately. The first thing you should do is talk to a lawyer. A lawyer can help you understand the subpoena, your rights, and the legal issues in the case. They can also help you get ready for the deposition and be there for you during it.

  2. Understand the Subpoena. The subpoena will specify the date, time, and location of the deposition. It may also request that you bring certain documents with you. You should review the subpoena with your attorney to understand its scope and requirements.

  3. Prepare for the Deposition. A deposition is a very important event. You should get ready with the help of your lawyer. This means going over all the important papers, remembering everything that happened in the case, and knowing what kinds of questions might be asked. You should also practice answering questions in a calm, factual way.

  4. The Deposition Itself. A court reporter will swear you in on the day of the deposition, and then an attorney for one of the parties will ask you questions. The questions could be direct, or they could be meant to see how well you remember things or how trustworthy you are.

  5. Reviewing the Transcript. After the deposition, the court reporter will prepare a written transcript of your testimony. You have the right to review and correct the transcript for any errors, such as a misspelling of a name or a mistake in a date.

What to Do and What to Avoid in a Deposition

The goal of a deposition is to tell the truth and to not inadvertently provide information that can be used against you. Here is some highly practical advice.

  • Do not lie. A deposition is under oath, and lying is perjury, which is a serious crime.

  • Listen to the question. Listen carefully to the question before answering. Do not anticipate the question or answer a question that was not asked.

  • Be brief and factual. Answer only the question that is asked. Do not volunteer information.

  • It is okay to say "I don't know". If you do not remember something, it is okay to say "I don't know" or "I don't recall." You are not expected to have a perfect memory.

  • Be respectful. Be respectful to the attorneys and the court reporter. Your demeanor can be a factor in how your testimony is received.

FAQ: Your Questions About Depositions Answered

Q: What's the difference between a deposition and a court trial?

A: A deposition is a legal process that happens outside of court where a witness gives sworn testimony. In a court trial, a witness gives live testimony in front of a judge and a jury.

Q: Do I have to pay to get an attorney for a deposition?

A: If you are not a party to the lawsuit, the attorney who subpoenaed you may pay for your attorney's fees. However, if you are a party to the lawsuit, you will have to pay for your own attorney.

Q: What if I can't attend the deposition?

A: If you cannot attend the deposition, you should contact the attorney who subpoenaed you and your attorney immediately. You may be able to negotiate a new date.

Q: Can a subpoena be for documents?

A: Yes. A subpoena can be a subpoena duces tecum, which is a legal order that requires you to produce certain documents.

Q: What if I'm not a U.S. citizen?

A: The rules for a deposition are the same for all people, regardless of their citizenship status.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. The legal process for a deposition, your rights as a witness, and the rules of evidence are complex and vary significantly by jurisdiction. This information should not be used as a substitute for professional legal guidance. For personalized advice, it is imperative to consult with a qualified attorney.

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