What Is a Deposition?

A deposition is the taking of an oral statement of a witness before trial under oath. Depositions may be taken of lay or expert witnesses. They are a part of discovery and a formal opportunity to gather information under oath before a civil trial.

During this part of the discovery process, the person being deposed answers a series of questions under penalty of perjury. Depositions allow opposing counsel to question witnesses sworn to tell the truth, and they often give both parties a better understanding of the case.

This FindLaw article defines depositions and explains the discovery process and how depositions fit into the discovery process.

Understanding Discovery

Discovery is a formal investigation allowing parties to find out more about the case. In a lawsuit, all named parties have the right to conduct discovery. Accessing this information before a trial is important. It will enable the parties to use facts and potential evidence to better define their strategies. In some cases, information learned during discovery helps the opposing sides settle without having to go to trial.

Forms of Discovery

Depositions are one form of discovery. Other forms include, but are not limited to, the following:

Interrogatories

Interrogatories are written questions posed to the opposing side,

Requests to Produce Documents

Allows both parties to gather relevant information from each other.

Depositions

Whether a deposition is needed depends on each case's unique facts and circumstances. Cases that involve only legal, not factual, issues usually do not require them. Witness testimony regarding a solely legal issue most likely is not necessary. In many lawsuits, however, deposition testimony is important in painting a complete picture of the events.

Subpoenas

During discovery, parties can use subpoenas to request relevant documents or testimony that are not willingly disclosed.

For example, discovery may include relevant medical records in a personal injury lawsuit. If the case involves a car accident, there may be demands for police accident reports and information regarding insurance companies. 

Deposition Basics

Unlike the information recorded in documents or the attorneys' answers to interrogatories, a deposition involves a living, breathing witness. The deposition has two significant purposes:

• To find out what the witness knows and believes

• To preserve that witness's testimony

The intent is to allow the parties to learn all the facts before the trial so that no one is surprised once that witness is on the stand.

Case Evaluation

A deposition is an opportunity to form a better case evaluation. It is not solely about obtaining favorable testimony. If, for example, a witness's version of events would undermine your case, that's something you should know about long before the trial begins. Depositions tend to eliminate surprises at trial. Therefore, a deposition allows all sides to learn the weak spots in their respective cases. The parties can then prepare for ways to avoid or dispute them at trial.

Cross-Examination

A third purpose of deposing a witness is to judge how well a witness handles cross-examination. For example, if the witness appears on their behalf well, the opposing party may consider settling the case. Moreover, if opposing counsel believes the witness is sympathetic, they may want to settle the case. 

On the other hand, if the opposing party knows the witness lied during their deposition, they may want to take the case to trial. Furthermore, if the opposing party believes the jury will not sympathize with the witness or find them credible, the opposing party may want to try the case.

How Depositions Work

Depositions don't take place in courtrooms. Instead, they usually occur in attorneys' offices or law office conference rooms. No judges are present during a deposition. A court reporter will record every word spoken during the entire deposition. If the parties know the witness will not be available at trial, a videographer may record the deposition.

Oath

The court reporter will swear in the witness, also known as the deponent. The oath requires the witness to tell the truth. Any false statements made under oath carry both civil and criminal penalties. This is known as perjury.

Hearsay

If a witness did not take an oath, their statement would qualify as hearsay. Hearsay is an out-of-court statement offered to prove truth of the matter asserted. Hearsay is generally not admissible in court.

Attendance

All parties to the case may attend the deposition. A deponent often has their attorney present. The deponent's attorney typically has a more limited role than in a courtroom. The deponent's attorney will likely only actively participate if they object to opposing counsel questions or have follow-up questions.

Deposition Questions

Generally, the range of deposition questions is broader than those allowed in court. Attorneys for the deponent or parties to the lawsuit may object to some inquiries. However, the deponent is usually obligated to answer all proper questions. A judge can later rule on objections made during the deposition.

Possible Length of Deposition

How long a deposition can last depends on each state's court rules. Generally speaking, the maximum time for a deposition is seven hours in total. In a federal case, the federal rules of civil procedure limit depositions to seven hours. Depositions may take place over several days in some circumstances. However, the length of the deposition cannot exceed the time limit set by the state or federal rules.

A deposition's length depends on many factors, including:

• The complexity of the case

• The number of questions asked

• The length of the deponent's answers

• The number of exhibits introduced

Average Deposition Length

An average deposition will take between two and four hours. Some depositions may only take 10 to 30 minutes. It all depends on the particular case.

What Happens Post-Deposition?

Depositions often provide additional information that the parties may follow up and investigate. The discovery phase will continue, and parties may schedule other depositions.

The court reporter will produce a written transcript of the deposition. The deposition transcript is valuable for parties to review and compare with known evidence. Access to the deposition transcript helps parties further evaluate the case and plan for settlement or trial.

Get Legal Help

If you have received a notice to appear for a deposition, you should speak to a litigation attorney. Litigation attorneys are experts and can help you in diverse legal matters, including deposition preparation. They can also provide legal advice for your case. Consider speaking with a skilled litigation attorney today.