First, a deposition is a question and answer session that’s given under oath.

It takes place in your attorney’s office.

There’s no judge there.

There’s no jury there.


But there is a court stenographer there.

To record all the questions you’re asked and all the answers you give.

Those questions and answers get transcribed into a booklet known as a transcript.

The answers that you give carry the same exact weight as if you’re testifying at trial.


A party to the lawsuit is either someone who is bringing the lawsuit known as the plaintiff, or someone who is being sued, known as the defendant.


During the lawsuit each attorney has a chance to question ‘the parties’ to the case.

That means that the person bringing the lawsuit will be questioned by the lawyer for the person you have sued. On a later date, I will have a chance to question the person you’ve sued.


A deposition is considered pretrial testimony.

It’s sworn testimony given way before you ever get to trial.

If done correctly, you can lock the witness into their story.


In a medical malpractice case where I am questioning the doctor you sued, I have many different goals and strategies to get the doctor to actually admit that if certain things were done, then that would be a violation from the basic standards of good medical care.


There are many times during a lawsuit where a witness observed some important facts surrounding your case. One side may want to question that witness to learn what he saw, what he did and what he observed.


Since that witness is neither the person bringing the lawsuit and is not the one being sued, that witness would be considered a ‘non-party’ witness. That’s all it means.


There are different ways to get a non-party witness to appear for pretrial questioning.

One way is to subpoena them to appear.

Another way is to get them to voluntarily appear.


Let’s say you sue your doctor for medical malpractice.

You’ve also included your spouse in your lawsuit.

The three ‘parties’ to the case are you, your spouse and the doctor.


Let’s say your mom accompanied you to your doctor visits.

She was present for each visit and heard and participated in the conversations with your doctor.

The attorney for the doctor wants to question your mom to see if she’ll corroborate what you’ve said took place.


Maybe the defense lawyer thinks she has other useful information that will help his case.

He asks your lawyer if he will voluntarily produce your mom for pretrial questioning.

In many cases, the answer will be yes.


“Sure, I’ll produce her for deposition. But only after the ‘parties’ have been questioned at their own deposition,” your lawyer says.

When that day comes, your mom is considered a non-party witness.

On the day of her deposition, your lawyer will prepare her for the types of questions she’ll be asked. The fact that she’s not a party to the lawsuit doesn’t really matter since she’ll still be giving sworn testimony about what she knows.


That testimony can then be read to the jury at trial.

That testimony can be used to cross examine another witness at trial.

That testimony can be used to cross examine your mom at trial.


What does it cost to do a non-party deposition?
Whoever wants to question the non-party witness will hire a court stenographer.

He will pay her.


Going back to the example above, let’s say the defense lawyer wants to question your mom about what conversations took place between his client, the doctor and you. Your mom agrees to come in for a question and answer session.


During that deposition, you can be there, since you’re a ‘party’ to the lawsuit.

Your lawyer will be there.

Your mom will be there.

The defense lawyer will be there.

And the court stenographer, also known as a court reporter, will be there.


The defense lawyer will be paying for the court reporter.

Depending on how long he questions her, the transcript could easily cost hundreds of dollars.


Now you know what a non-party deposition is!


To learn what questions you should never ask during a deposition, I invite you to watch the video below...


Have questions about your matter that happened in NY? If you have not yet started a lawsuit and are thinking about doing so, I invite you to call me at 516-487-8207. I welcome your call.


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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