Depositions in Civil Litigation
| Jurisdiction | Colorado,United States |
| Citation | Vol. 03 No. 1976 Pg. 369 |
| Pages | 369 |
| Publication year | 1976 |
1976, March, Pg. 369. Depositions in Civil Litigation
The general rule governing discovery is Rule 26 of the Colorado Rules of Civil Procedure. Specific rules governing depositions are found in Rule 27 (Depositions Before Action or Pending Appeal), Rule 28 (Persons Before Whom Depositions May Be Taken), Rule 30 (Depositions Upon Oral Examination), Rule 31 (Depositions Upon Written Questions), and Rule 32 (Use of Depositions in Court Proceedings).
This article will address exclusively Rules 30 and 32. The other deposition rules, although significant, are not often employed by attorneys and therefore are omitted from this text.
Rule 30 permits a party to depose any person, including a party, upon oral examination. If the plaintiff to an action seeks to take a deposition prior to the expiration of 30 days after service of the summons upon any defendant, leave of court must be obtained with or without notice.
Leave of court is not required if (1) a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) special notice is given when deponent is about to leave the state of Colorado and will be unavailable for examination unless the deposition is taken before expiration of the 30-day period, and the notice sets forth facts to support such situation. The attorney must sign the notice and include his Colorado registration number, and the signature of the attorney constitutes a certification by the attorney that such situation is true to the best of the attorney's knowledge, information and belief. A willful violation of the truth may subject the attorney to appropriate punishment, as in contempt cases, and the court may also direct the attorney to pay to the other party reasonable attorneys' fees and actual costs.
The attendance of witnesses may be compelled by subpoena, as provided in Rule 45.
If a party or witness is confined in prison, the deposition may only be taken by leave of court on such terms as the court may prescribe.
A deposition is basically oral testimony of a party or witness taken under oath before trial (Rule 27 states the exceptions). Many objections available at trial do not apply. The basic rule of the deposition is that the questions asked need only address themselves to information that is relevant to the issues in the case or to discovering relevant facts.
The purpose of taking a deposition is to arm yourself with as much information as possible --- to discover pertinent facts, whether beneficial to your case or not, to avoid surprise at the time of trial and to assist in preparation of trial and trial strategy. The deposition serves to find out all the facts about the incident. It may be used as original evidence at the time of trial, and it may be used for purposes of impeachment. The deposition provides an evaluation of the deponent and may lead to
early disposition of the action, if it is properly taken and utilized with other discovery procedures, thus preventing the expense of trial.
If you are the attorney taking the deposition of an adverse party or witness, prepare yourself for the deposition by gathering as much information as is conceivable. Do not ask questions for the sake of asking questions. Have in mind the purposes enumerated above.
Preparing or outlining the questions ahead of time will ensure that you cover all pertinent points, and the answers or demeanor of the deponent may lead you to further information that you were not privy to prior to the deposition.
If you anticipate that you may want to use the deposition as original evidence at the time of trial, as permitted in Stauffer v. Karabin,(fn1) tailor your questions accordingly. In Stauffer, the Colorado Court of Appeals found the applicable Colorado law to be an amalgamation of the federal authorities(fn2) to the effect that a party offering...
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