A deposition is an opportunity for parties in civil and criminal lawsuits to get a witness’s testimony under oath before trial.
Merriam-Webster Dictionary defines a deposition as “testimony taken down in writing under oath”.
Depositions are used to gather information during the discovery process and may be used at trial to fact check a witness testifying on the stand. They are recorded by a court reporter and usually take place in an attorney’s office or conference room or at a law firm.
The witness being deposed is called the deponent.
These parties must be present at a deposition:
- The deponent
- The party bringing the claim or lawsuit
- The parties’ lawyers (though they do not need to be present for written depositions)
- A court reporter
Paralegals, investigators, and expert witnesses may also attend.
Types of Legal Depositions
There are 2 types of depositions:
- Oral depositions do not directly involve the court. They are initiated and monitored by the parties. Traditionally, oral depositions were recorded by stenographers, but electronic recordings are now the norm.
- Written depositions (interrogatories) do not happen in person. The parties submit questions beforehand, and a third party, such as a process server or notary public, presents the questions to the deponent. The deponent answers the questions in the presence of the third party, who will ensure that the answers are properly sworn.
Written depositions are less expensive than oral depositions because the parties’ lawyers do not need to attend.
Why Are Depositions Held?
Depositions are held to assist with the discovery phase. During discovery, the parties gather information to “discover” or learn all of the facts of the case before trial. The purpose of discovery is to ensure that no one is surprised when the witness appears on the stand.
Essentially, depositions are a chance for all sides to identify the weak spots in their respective cases and prepare for ways to rebut or avoid them at trial.
What Happens During a Deposition?
Here’s a breakdown of what happens during a deposition.
Swearing in the Witness
First, the court reporter will give the oath and tell the deponent about the rules of the deposition. This includes swearing to tell the truth, not talking over the attorney taking the deposition, only giving complete answers, not guessing, and only answering the questions they know.
The deponent will also be asked to confirm that they are not under the influence of alcohol and drugs and that they are ready for the deposition.
Lawyers Take Turns Asking Questions
Once the deponent is sworn in and prepared, an attorney from the party who presented the deponent will question the deponent. After the first lawyer finishes their questions, the opposing lawyers can cross-examine the deponent by asking a series of questions.
Cross-examination is when an attorney questions a witness presented by opposing counsel.
Witnesses often ask for breaks during depositions. They can use these breaks to talk to their lawyer, walk around, get lunch, and use the bathroom.
After all of the lawyers have questioned the deponent, the deposition is finished. The court reporter will provide written transcripts to both sides.
How Long Do Depositions Take?
Depositions used to last days, but legislation in 1999 changed this rule.
According to the Federal Rules of Civil Procedure and its state equivalents, a deposition can’t last more than 7 consecutive hours.
With breaks, however, this can add up to a total of 8-10 hours.
How to Prepare for a Deposition
Being a deponent can be challenging, especially if you’ve never done it before. Follow these guidelines to prepare for a deposition.
Work With a Quality Attorney
Before you do anything else, make sure you are working with a quality lawyer. The right attorney can do the background work to help you prepare, including gathering evidence, collecting documentation, and coaching you on the deposition rules.
Seek Advice on Answering Questions
Your attorney can also answer any questions or concerns you have about your deposition and do mock depositions with you so you feel prepared for the big day.
Here are 5 deposition tips:
- Be honest and tell the truth. As a deponent, you are obligated to tell the truth even if you think it will hurt your case. Don’t speculate (make a guess without firm evidence).
- Only answer questions that are asked, and don’t volunteer information. If you don’t understand a question, ask the attorney to rephrase it.
- Stay calm. You want to make a good impression on the opposing attorneys. They will be reporting back to an insurance company or client, who will then decide whether or not to go to trial or pursue a settlement. If you get defensive or overly emotional, the opposing attorney may think that you will make the same impression on a jury during cross-examination.
- Stay true to your answers. Stick to your answer if it is accurate. Many attorneys may ask the same or similar questions in different ways to try to poke holes or expose inconsistencies in your testimony.
- Use good manners. Don’t interrupt the attorney asking the questions. Give clear and direct answers. Don’t nod or say “uh-huh.”
Make Sure You Feel Protected
Finally, verify that you feel protected by your attorney. An attorney should always help and guide you before, during, and after a deposition.
Choosing an attorney who establishes a solid attorney-client relationship from the first consultation can be crucial to all parts of your case, including the deposition.
The opposing side’s attorney may raise deposition objections to prevent the attorney from the other side from asking questions that are inaccurate, confusing, or misleading. They may also object to the place and time of a deposition to ensure the location of the deposition is reasonable.
Objections during a deposition include:
- Form objections are concerned about the wording of a question. Examples of objections to form include a compound question. This is an objection to when lawyers combine two or more questions into one.
- Relevancy objections challenge the relevancy of a question. Lawyers may object to an irrelevant question because they may emotionally provoke the deponent or reflect negatively on the deponent’s character.
- Privilege objections are legal protections established by statutory privilege or common law that an attorney can invoke during a deposition. Attorneys can use privilege objections to prevent the deponent from answering a specific question.
What Happens After a Deposition?
After a deposition, attorneys for both parties will review the deposition transcript. The deponent should also review the entire deposition transcript and look for any errors.
Best practice: Review the transcript with your legal team and discuss any areas of concern. Some answers may be able to be changed if the deponent said something inaccurate during the deposition.
In some cases, a deposition can be used to negotiate a settlement.
If the parties are unable to agree to a settlement, the deposition may be used as evidence at trial. Specifically, the deposition may be used to impeach a witness (show that a witness is lying) or refresh the memory of a witness.
“Experienced attorneys know the important role depositions can play in a court case. Statements made under oath during a deposition can be the deciding factor in winning or losing a lawsuit.”
– The Law Dictionary
Can You Get Out of a Deposition?
Depending on the jurisdiction and other factors, you may be able to avoid a deposition. For example, under Washington state’s deposition law (Civil Rule 26), a court may issue a protective order for a deponent to prevent the discovery process or deposition from happening.
However, this protection is only offered if a deponent makes a motion and can show that skipping the deposition would protect the deponent from oppression, embarrassment, annoyance, or undue expense or burden.
The deposition process can be confusing, especially if you have never been a deponent before. Talk to a lawyer in your area to learn more about your legal rights.
An experienced attorney can answer your deposition questions, give you legal advice, and help you prepare for a deposition.
Deposition Legal Definition FAQs
What is a deposition?
A deposition is a part of the discovery process. It is a chance for parties in a civil or criminal lawsuit to get testimony from a witness under oath before trial.
What should you not say during a deposition?
There are many things you should avoid doing and saying during a deposition.
For example, you should refrain from providing:
- Emotional responses
- Rambling answers
- Speculation or guesses
- Untrue information
What questions cannot be asked during a deposition?
Lawyers should not ask questions that are irrelevant to the case, including personal questions about a person’s health, religious beliefs, or sexuality.
How do you win a deposition?
A deposition isn’t something that you win. However, you can be a good deposition witness by only answering questions that are asked, giving clear and direct answers, and following the advice of your attorney.
Is a deposition a good thing?
Yes, court deposition allows both sides to understand the facts of a case. Both parties can use deposition transcripts to reach an agreeable settlement.
Can you be legally charged for not attending a deposition?
Yes, disobeying a subpoena for deposition and not showing up can lead to certain sanctions, including contempt of court. This can cause you to be fined or jailed for several days.
Do you need a lawyer for a deposition?
You should always have an experienced lawyer to guide you through the deposition process. A skilled attorney can help you prepare for a deposition so it goes well.
Specifically, they can explain what a deposition is so that you know what to expect and help you polish your testimony.