Can an Attorney Be a Deposition Officer in California?

Having a deposition with the wrong deposition officer may result in challenges or invalidations of the deposition, potentially impacting the outcome of a case. As such, it’s important to understand who can be a deposition officer in California to make sure that depositions are conducted correctly and legally. As there’s no provision in Californian law that directly qualifies or disqualifies attorneys as deposition officers, you may be wondering if an attorney can be a deposition officer, given their knowledge of the law.

Yes, an attorney can be a deposition officer, provided they remain neutral and have no interest in the case. As such, the attorney must not be a legal representative to any party involved in the case, so that they can avoid conflicts of interest and maintain the fairness of the process.

Our team of experts at On-Call Legal Process Servers offer all-inclusive legal support services including serving as your deposition officer in California. We can help you prepare and serve subpoenas and obtain records as your deposition officer. Schedule a free consultation with us to discuss your needs and guide you throughout the process.

In this blog, you’ll learn about deposition, the roles and responsibilities of a deposition officer, an attorney as a deposition officer in California, and the practical considerations and challenges for attorneys working as deposition officers.

What Is a Deposition?

A deposition is a pretrial discovery process where a witness provides testimony under oath. It usually happens outside the court but in the presence of a court officer who records the statements accurately for evidence or future references. The rules and procedures governing the deposition process are outlined in the Civil Discovery Act of the California Code of Civil Procedure (CCP)

The primary goals of depositions are to obtain relevant evidence before the trial proceedings, help the attorneys evaluate the strengths and weaknesses of the case, and secure witnesses’ testimonies in case of future inconsistencies.

The individuals swearing the statements are known as the deponents. They include the key witnesses and sometimes the plaintiffs and defendants. Since the deponents are under oath, they risk a criminal or civil penalty should they give false statements.

What Is a Deposition Officer?

A deposition officer, also known as a court reporter, is a neutral party who supervises the deposition to make sure that the process complies with legal requirements. The responsibilities of a deposition officer include various tasks, including the following:

• The deposition officer is responsible for administering oaths to the deponents
• They record their statements either by writing, videography, or audio recording.
• They identify the participants properly and mark exhibits presented during the deposition.
• To ensure that the process is not partial, the deposition officer makes sure that everyone has an equal opportunity to present their own side of the story.
• Depending on the jurisdiction, a deposition officer must meet some legal requirements, including a Registered Professional Reporter’s (RPR) certification and a Registered Merit Reporter (RMR).
• They must also adhere to their business and professional code of conduct, such as maintaining impartiality and confidentiality. Confidentiality means that the deposition officer’s notation or comments on the case details should not be exposed. For example, when business records are requested as part of a deposition, the deposition officer oversees the presentation and recording of these business records, making sure that the business records are accurately referenced and incorporated into the deposition transcript.

The deposition officer also needs certain skills to perform their duties effectively. These skills include excellent listening and concentration abilities, keen attention to detail, time management, experience in the legal field, and knowledge of legal terminologies.

Can an Attorney Be a Deposition Officer in California?

In California, an attorney can serve as a deposition officer but under certain rules and guidelines. First, the attorney must be neutral with no interest at all in the case. This means they should not represent any of the parties involved in the deposition to avoid any conflicts of interest. If the attorney has any relationship with any party in the case, they should disclose this and possibly recuse themselves to maintain neutrality.

Secondly, the attorney must be licensed to practice law in California and should have a good understanding of the rules and procedures related to depositions.  Moreover, the attorney must ensure that the testimony is accurately recorded. They can achieve this using various methods, such as a stenographic reporter, audio recording, or video recording, depending on the agreement between the parties and the court’s requirements. Additionally, the attorney must adhere to the standards of professional conduct expected of all legal practitioners, ensuring fairness and impartiality throughout the deposition process.

Processes Involved in a Deposition

From scheduling and preparation to conducting the deposition and post-deposition analysis, there are various steps involved in a deposition process. Understanding these processes is helpful for effectively gathering information and building a strong case in legal proceedings. Here’s a summary of the processes involved.

1. Scheduling and Notice

Here, the attorneys and legal professionals involved in the case set the date, time, and location of the deposition. The deposing party also sends timely notice to the key witnesses and other parties to help them prepare for the deposition.

2. Swearing in

Before taking any testimonies, the court officer swears the witnesses in. It’s important to let the witnesses know they’re under oath and safe to assume they understand any question they give an answer to. Therefore, they should ask for clarification on any question they don’t understand.

3. Examination by Attorney

During the examination process, the attorney asks the witnesses various questions, possibly including the ones that may be ruled inadmissible. The witnesses are required to be vocal and clear with their answers, especially if there’s no videographer present to put their gestures on record.

4. Cross-Examination

After the examination, the opposing counsel takes the floor to cross-examine the witnesses. To ensure clarity, the attorney may pose questions from the witnesses’ statements during the examination process. The opposing counsel also has the opportunity to ask questions or strategically direct the discussion in a manner that will make their client’s offense look less severe.

Deposition Rules in California

In California, there are specific rules that regulate depositions, and these rules are outlined in the California Code of Civil Procedure. These requirements were stipulated to guide the process in such a way that depositions are conducted fairly and effectively. The key guidelines include the following.

1. A notice of deposition must be served at least 10 days before the deposition date if served within California, or 20 days if served outside of California. The notice must include the date, time, location, and the name and address of the deponent. It should also specify any documents the deponent must bring.
2. Depositions must be taken within 75 miles of the deponent’s residence or within the county where the action is pending. Depositions outside of California often require that the process complies with the laws of the jurisdiction where the deposition is conducted.
3. Who can attend a deposition? All parties involved in the case and their attorneys have the right to attend the deposition. Other witnesses or individuals may attend if they have a direct interest in the case or if their presence is necessary for the examination.
4. The deponent is placed under oath by the deposition officer. The party noticing the deposition begins questioning, followed by cross-examination from other parties. Questions must be relevant to the case.
5. Attorneys can object to questions on legal grounds, but the deponent usually still answers unless instructed otherwise. Objections are noted for the record and ruled on later by the court if necessary.
6. A deposition is generally limited to seven hours of testimony. Exceptions can be made for complex cases, or if additional time is agreed upon by the parties or ordered by the court.
7. The deposition can be recorded by a court reporter, by audio, or by video. The method must be specified in the notice. Parties can also request copies of the deposition transcript or recording, usually at their own expense.
8. Typically, a certified court reporter serves as the deposition officer. Attorneys not involved in the case can also serve as deposition officers if they remain neutral.
9. If documents are required from the deponent, a subpoena duces tecum must be issued along with the deposition notice, specifying the documents or items to be produced. The deponent must bring the requested documents to the deposition unless an objection or protective order is filed.
10. The deponent has 30 days to review and make corrections to the deposition transcript after it is prepared. The deposition transcript is usually not filed with the court but is kept by the attorneys for use during the trial or settlement negotiations.

Practical Considerations and Challenges for Attorneys Working as Deposition Officers 

An attorney acting as a deposition officer may encounter a conflict of interest due to their responsibilities and connection with their client and roles as a deposition officer. In this case, the deponent party’s attorney attending to the case may need to obtain the client’s consent before proceeding as a deposition officer. The attorney may also withdraw from representing the client if their legal representation will limit their responsibilities as a depositing officer.

Nevertheless, there are various advantages of having an attorney as a deposition officer. Attorneys are authorities in the legal system. They possess the experience, legal expertise, and knowledge of procedural rules and professional requirements governing court proceedings, including the deposition process. This ensures that the deposition process is fair and compliant with relevant laws.

Need a Deposition Officer?

Although the California law does not directly qualify attorneys as deposition, it does not exclude them either. The court may authorize an attorney to serve as a deposition officer. However, the attorney must be compliant with the requirements outlined in the Code of Civil Procedure and any other regulations guiding the deposition process. Moreover, following their expertise and experience in legal matters, having an attorney as a deposition officer offers various advantages, which include ensuring a compliant and fair deposition process.

The best thing to do is to make sure your deposition officer is qualified and authorized to offer deposition officer services, and that’s exactly what On-Call Legal Process Servers provide for you. Our deposition officers have a proper understanding of California’s Code of Civil Procedure and will attend to your legal needs within 24 hours. Contact us today for a seamless deposition service.