Why Depositions Can Win or Lose Your Case

At Dennis Gonzalez Law, P.A., we believe the deposition is the trial. We follow a philosophy taught by trial lawyer Sach Oliver, author of Depositions Are Trial. In his words: "Depositions are the trial." And: "We see the conference room as the courtroom." He teaches that every deposition should be prepared and taken as if the judge and jury were in the room, because the testimony may be what the jury ends up hearing.

That is how we approach every deposition: in criminal defense, in personal injury, and in funeral home negligence cases.

What a Deposition Is

A deposition is testimony given under oath before trial, outside the courtroom.

• It is sworn. The witness takes an oath, just as in court.
• It is recorded. A court reporter takes down every word, and the testimony can be turned into a written transcript.
• It is often on video. In civil cases, Florida's rules allow a deposition to be recorded on video when the notice says so, and the video deposition must also be taken down by a court reporter unless everyone agrees otherwise. In criminal cases the rule is different: a discovery deposition of an adult generally is not video recorded unless the judge orders it for good cause or the parties and the witness agree.
• The lawyers ask the questions. There is no judge in the room. The lawyers for each side can question the witness, and objections are noted on the record.
• It may be in person or remote. Depositions can also be taken by video technology when the rules allow it.

How Depositions Can Decide Cases

They lock in the story. Once a witness has said something under oath, that answer is on the record. If the witness tells a different story later, the deposition is there to show it.

They are used at trial. Florida's rules allow a deposition to be used to contradict or impeach a witness who changes the story on the stand. In some situations, the deposition itself can be shown or read to the jury in place of live testimony. That is why we treat every answer as if the jury will hear it.

They can decide a case before trial. In civil cases, a party asking the judge for summary judgment must point to the evidence in the record, and depositions are part of that record. What a witness says, or fails to say, in a deposition can keep a case alive or end it.

They shape what the other side will offer. Insurance companies and prosecutors read depositions closely. A strong deposition can show an insurer how the testimony may look to a jury. In a criminal case, testimony that does not hold up can lead the State to take a harder look at its case. Neither side is required to change its position, and no one can promise an outcome, but the record built in depositions is part of what the other side weighs when it decides what to do next.

Depositions in Criminal Cases

In Florida, a person charged with a crime can take depositions of the State's witnesses before trial. These are called discovery depositions, and they are governed by Florida Rule of Criminal Procedure 3.220(h).

When depositions are available:

• The defense has to opt in. A defendant becomes part of the discovery process, including depositions, by filing and serving a Notice of Discovery. Taking part in discovery is a two-way street: it also creates obligations for the defense to share certain information with the State.
• The State's witness list sorts witnesses into three categories. The defense may depose a Category A witness without asking the judge. Category A includes eyewitnesses, alibi and alibi-rebuttal witnesses, witnesses present when the defendant made a statement, investigating officers, witnesses with information that tends to show the defendant is not guilty, child hearsay witnesses, certain expert witnesses, and certain informant witnesses. After the defense receives the State's discovery, it may also depose, without leave of court, unlisted witnesses who may have relevant information.
• Category B witnesses may be deposed only with the judge's permission, for good cause.
• Category C witnesses are not subject to deposition unless the judge moves them to another category.

Misdemeanor and traffic cases have a limit. If the only charges are misdemeanors or criminal traffic offenses, no deposition may be taken when all other discovery has been provided, unless good cause is shown to the judge. When deciding, the judge should consider the consequences to the defendant, how complex the issues are, how complex the witness's testimony is (for example, experts), and what other ways the defense has to get the information. The rule also says this limit does not apply if, after the defense provides its discovery, the State takes the statement of a listed defense witness under a Florida statute that allows the State to do so.

Other rules worth knowing:

• Police officers must appear. Law enforcement officers must appear for deposition on proper written notice, without a subpoena, and an officer who fails to appear after proper notice may be held in contempt.
• Usually one deposition per witness. No person may be deposed more than once without the parties' agreement or a court order.
• The defendant usually does not attend. A defendant may not be physically present at a deposition unless the parties agree or the judge orders it for good cause. We tell you what was said.
• Special protections apply to certain witnesses, including witnesses under 18, people with an intellectual disability, and victims of sexual offenses. The judge can limit how those depositions happen, and for young victims of sexual offenses the judge decides whether a deposition may be taken at all.

How criminal depositions help the defense. We depose the officers who made the arrest, the officers who wrote the reports, and the witnesses the State plans to call. We compare what they say under oath to the police reports, the body-cam and dash-cam video, the 911 calls, and each other. Reports are written after the fact. A deposition puts the witness under oath, on the record, before trial.

When a witness's sworn story does not match the report, the video, or another witness, that inconsistency matters. The deposition can be used at trial to contradict or impeach that witness. It can support a motion, such as a motion to suppress. And it gives us a factual basis to go back to the prosecutor and argue for a dismissal, a reduced charge, or a better offer. Every case is different and no result can be promised, but the defense cannot argue what it has not first pinned down.

Learn more about our criminal defense practice.

Depositions in Personal Injury Cases

In a Florida injury lawsuit, depositions are governed by Florida Rule of Civil Procedure 1.310. Once the case is filed, any party generally may take the deposition of any person, including another party. The lawyer taking the deposition must give written notice to every other party. Examination and cross-examination proceed as they would at trial.

Who we depose:

• The defendant. The driver, the property owner, the person who caused the harm. We want their version under oath, early, before it has time to change.
• The company itself. Florida's rules let us name a company as the witness and list the subjects we want to cover. The company must then pick one or more people to testify for it, about what the company knows or can reasonably find out. This is often called a corporate representative deposition. It is where we ask about safety rules, training, policies, and what the company knew.
• Experts. The other side's doctors, engineers, and other experts. We test their opinions, their methods, and what they did and did not review.

Your own deposition may be the most important day of your case. The defense lawyer will ask about the incident, your injuries, your medical treatment, your work, and your life before and after. That testimony is part of the record the insurance company reviews when it decides what your case is worth. Adjusters and defense lawyers are watching how you come across: whether you are honest, consistent, and clear. A truthful, prepared client can be one of the strongest pieces of evidence in an injury case.

What the rules say about the day itself:

• Objections must be short and must not argue or coach the witness.
• A lawyer may tell a witness not to answer only in limited situations, such as to protect a privilege.
• If the deposition is typed up, the witness gets to review the transcript and list any changes, with the reasons for them, unless that review is waived.

Learn more about our personal injury practice.

Depositions in Funeral Home Negligence Cases

When a funeral home, crematory, or cemetery mishandles a loved one's remains, the truth is usually inside the business. Families were not in the back rooms. The staff were.

Depositions are how we find out what happened. We may depose:

• Funeral directors and managers, about the arrangements, the authorizations, and what the family was told.
• Embalmers, crematory operators, drivers, and other staff, about who handled the remains, when, and where.
• Office and records staff, about the paperwork and how it was kept.
• The company itself, through a corporate representative, about its policies, training, and procedures.

Records and chain of custody. In these cases, the paper trail matters as much as the testimony. We use depositions to walk witnesses through the contracts, authorization and release forms, identification and tracking records, and logs that should show where the remains were at every step. When the records have gaps, or the testimony does not match the records, the deposition puts that on the record.

Learn more about our funeral home negligence practice.

How We Prepare You for Your Deposition

Nobody should walk into a deposition unprepared. If you are a personal injury or funeral negligence client and the other side is going to depose you, we do not let you go in cold.

Prep sessions. We meet with you before the deposition, in person or by video. We go over the facts of your case, the documents the other side is likely to show you, and the topics they are likely to ask about. You will know what to expect before you walk in.

Practice depositions. For our civil clients, before important depositions, we hold a practice session where one of our lawyers plays the other side's lawyer and asks you the kinds of questions you may face, including the hard ones. Practicing once before the real day is meant to help you stay calm, listen carefully, and answer clearly. It is the same idea behind the practice sessions we hold before mediation. For civil clients, we also hold practice mediations and, when a case is headed to trial, practice trials. See how we prepare you for mediation.

The rules we teach every client:

1. Tell the truth. Always. Your credibility is the most valuable thing you bring into the room.
2. Listen to the whole question. Wait until the lawyer finishes.
3. Pause before you answer. It gives you time to think, and gives your lawyer time to object if needed.
4. Answer only the question asked. Short, truthful answers. Do not volunteer extra information.
5. If you do not understand, say so. Ask the lawyer to repeat or rephrase the question.
6. Do not guess. If you do not know or do not remember, say that, but only if it is true.
7. Stay calm and polite. Even if the other lawyer is not. On video, how you answer matters as much as what you say.
8. Talk about your case only with us. Not on social media, and not with friends or family.

What to expect on the day. You will be in a room, or on a video call, with the lawyers, a court reporter, and sometimes a videographer. You will take an oath. The other side's lawyer will ask questions, and your lawyer will be next to you the whole time. Depositions can last a few hours or most of a day, and breaks are normal. Dress as you would for an important appointment: clean, simple, and comfortable.

In criminal cases, it works differently. The depositions are usually of the State's witnesses, we are the ones taking them, and the defendant generally does not attend. The practice depositions described above are for our civil clients.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

You can read about some of our past cases on our Results page.

Frequently Asked Questions

What is a deposition?

Testimony given under oath before trial, outside the courtroom. A court reporter records every word, and in many civil cases the deposition is also recorded on video.

Is a judge there?

No. The lawyers ask the questions and make objections on the record. If a dispute comes up, it can be taken to the judge later.

Can my deposition be used against me at trial?

In a civil case, yes. It can be used to contradict you if your testimony at trial is different, and the other side may use a party's deposition for any purpose the rules allow. That is why we prepare you, and why the answer is always the truth.

Can I take depositions in my criminal case?

In many Florida criminal cases, yes, once the defense files a Notice of Discovery. Which witnesses can be deposed depends on how the State lists them. If you are charged only with misdemeanors or criminal traffic offenses, depositions are limited: once the other discovery has been provided, a deposition requires showing good cause to the judge.

Can I be in the room when you depose the officer in my criminal case?

Usually not. The rule says a defendant may not be physically present unless the parties agree or the judge orders it for good cause. We go over everything with you afterward.

How long does a deposition take?

It depends on the witness and the case. Some take an hour or two. Others take most of a day.

What if I do not remember something?

Say so, if it is true. Do not guess. "I don't remember" is a truthful answer when it is the truth, and a guess can come back to hurt you.

Can I change my answers afterward?

In a civil case, if the deposition is typed up, you usually get to read the transcript and list changes with your reasons, unless that review is waived. The changes are attached to the transcript. It is far better to get it right the first time.

How do I get ready?

Call us as soon as your deposition is scheduled. We set up prep sessions and, for civil clients facing important depositions, a practice deposition. Call (305) 209-0384 or message us on WhatsApp.

Talk to a Miami Lawyer Who Treats Every Deposition Like Trial

Whether you are charged with a crime, hurt in an accident, or facing what a funeral home did to your loved one, the depositions in your case matter. Call Dennis Gonzalez Law, P.A. at (305) 209-0384 or message us on WhatsApp. Our office answers 24 hours a day, in English and Spanish. See our results, our criminal defense, personal injury, and funeral home negligence practices, or contact us today.