Depositions Vs. Sworn Statements | Key Differences and Similarities

hen it comes to the discovery process in legal cases, two key tools that attorneys use to gather information are depositions and sworn statements. While they may seem similar at first glance, they serve different purposes and are used in distinct ways. Understanding the differences and similarities between these two forms of testimony is essential for navigating the legal landscape effectively.

In this blog post, we’ll break down Depositions vs. Sworn Statements by exploring their definitions, legal significance, key differences, and when each should be used in your legal strategy.

What is a Deposition?

A deposition is a formal, out-of-court testimony given under oath by a witness or party to a lawsuit. It typically occurs during the discovery phase of litigation, before trial, and is part of the process of gathering evidence. During a deposition, the witness is questioned by both parties' attorneys, and the testimony is recorded by a court reporter. The questions and answers are transcribed and may be used later in trial or as part of the settlement process.

Key Features of a Deposition

• Live Testimony: The testimony is given in person or, increasingly, via video conference.
• Questioning by Attorneys: Both the opposing and defending attorneys are allowed to ask questions, following a specific set of rules (e.g., Federal Rules of Civil Procedure, state-specific rules).
• Recorded: The testimony is transcribed and/or recorded. This record may be used for future reference.
• Use in Court: Depositions are often used to impeach a witness if their trial testimony contradicts their deposition answers.
• No Judge Present: A deposition takes place without a judge, but the proceedings are typically overseen by a court reporter.

What is a Sworn Statement?

A sworn statement, on the other hand, is a written document that a person swears to be true, typically under penalty of perjury. This form of testimony does not involve a live interview or questioning by attorneys. It is a signed declaration, usually done in writing, affirming that the contents of the document are accurate to the best of the declarant’s knowledge.

Key Features of a Sworn Statement

• Written Testimony: A sworn statement is usually written by the witness or by an attorney, and then signed by the witness under oath.
• No Cross-Examination: Unlike depositions, there is no opportunity for opposing counsel to cross-examine the witness.
• Use of Notary: In many cases, a sworn statement must be notarized to be valid.
• Less Formal: It’s typically less formal than a deposition but still has legal consequences because the individual is swearing under oath that the content is true.

Key Differences Between Depositions and Sworn Statements

While both depositions and sworn statements are used to gather factual information under oath, they have some important differences. Understanding these will help you determine when to use one over the other.

1. Format and Procedure
   • Deposition: Involves live questioning, typically in person or via video, with attorneys asking questions directly. It’s more like an interview.
   • Sworn Statement: It’s a written declaration, where the witness attests to the truth of the statement in writing, often without a formal interview process.
2. Questioning
   • Deposition: The witness is questioned by both parties’ attorneys in a structured format. There’s an opportunity for cross-examination and follow-up questions.
   • Sworn Statement: There is no live questioning, and the witness typically has no opportunity to explain or clarify their answers in real-time.
3. Witness Interaction
   • Deposition: The attorney can ask follow-up questions, seek clarification, and challenge the witness’s statements during the deposition.
   • Sworn Statement: The statement is generally static. The declarant doesn’t interact with attorneys after the statement is made.
4. Use in Court
   • Deposition: Depositions are typically used in trial to challenge the credibility of witnesses or to present evidence when a witness can’t attend trial.
   • Sworn Statement: Sworn statements are often used in motion practice or as an affidavit for a specific request (e.g., for a summary judgment motion), but they are not usually subject to cross-examination in court.
5. Purpose
   • Deposition: Aimed at gathering detailed testimony that can be used to uncover inconsistencies or prepare for trial.
   • Sworn Statement: Typically used to provide factual support for a motion or statement of facts where live testimony isn’t necessary.

When to Use a Deposition vs. a Sworn Statement

Each tool has its place depending on the nature of the case and the information you need to gather. Here are some scenarios where one might be more beneficial than the other:

• Use a Deposition When:
  • You need to prepare for trial and want to test the credibility of a witness.
  • You need a full, detailed account of a witness's knowledge of the case.
  • You expect a witness to be unavailable for trial (depositions can be used in place of live testimony).
  • You want to use the opportunity for cross-examination to uncover inconsistencies.
• Use a Sworn Statement When:
  • You need a quick, straightforward statement to support a motion (e.g., for summary judgment).
  • The witness is unavailable or you don’t need to question them live.
  • You need to attest to a fact or declaration for a specific legal purpose without requiring a detailed, interactive process.

Key Similarities Between Depositions and Sworn Statements

Despite their differences, depositions and sworn statements share key similarities:

• Both involve providing testimony under oath, meaning the person making the statement is legally obligated to tell the truth.
• Both are used to gather factual evidence that may be presented in court or as part of the legal process.
• Both can carry penalties for perjury if the testimony is found to be false.

Depositions Vs. Sworn Statements FAQ

Can a sworn statement be used in place of a deposition?

While a sworn statement can sometimes serve as a replacement for a deposition in certain motions (such as motions for summary judgment), it does not provide the same opportunity for cross-examination or live questioning. Depositions are more suited for gathering detailed testimony and challenging the credibility of witnesses.

Are depositions always required in litigation?

No, depositions are not always required, but they are a common and powerful tool in the discovery process. The need for a deposition will depend on the case specifics, the witness’s role, and whether the attorney believes it’s necessary to uncover critical information.

What happens if a witness refuses to participate in a deposition?

If a witness refuses to participate in a deposition, the attorney can seek a court order to compel the deposition. Failure to comply with such an order can result in sanctions, including contempt of court.

Can a sworn statement be used in court?

Sworn statements can be used in court, but they carry less weight than deposition testimony because they haven’t been subjected to cross-examination. They are typically used to support motions rather than as primary evidence at trial.

How do I prepare a witness for a deposition?

To prepare a witness for a deposition, review the facts of the case, explain the deposition process, and practice answering questions. Ensure the witness understands that their testimony is under oath and that they should answer truthfully, even if the question feels uncomfortable.