The original deposition transcript typically is lodged with the court. First, it has to be established to the court’s satisfaction that the person really is unavailable. You then have that individual’s testimony, which can be read to the trier of fact. Do we have to present an affidavit or a declaration?Ī: One of the reasons to take a deposition is because the witness may be unavailable at trial. Q: In our small-claims case we are going to file witness statements. Still, confirming early-on what someone saw or heard, or what he or she knows from personal knowledge, and having that in the form of a valid sworn statement, can be a prudent step because if that person’s memory fades, or he or she starts to waver, you may be able to use the sworn statement with the witness on the stand to convince the trier of fact what the witness actually saw, heard or knows. I have had occasion, however, where the person signed a sworn statement, but it is not quite what he says when later questioned under oath. They also are useful tools in seeking to settle a matter, as they show the other side (such as an insurance company) what the witnesses have said. The sworn statements can help to support your position either for or against summary judgment, which tests whether by law there is any triable question of fact if not, summary judgment could be granted. For example, dealing with a summary judgment motion in a civil case. Sworn statements (such as a declaration or an affidavit, discussed in response to the next question) can be very helpful in several respects. You want the person there actually testifying. Hearsay means they are offered for the truth of a statement made by a third person who is not in court. Those are evidence, right?Ī: Well, actually they are hearsay, and not admissible as evidence. Q: We have witnesses who can help us, so we plan to get sworn statements from them.
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