What is a deposition in a lawsuit and how does it work?
What is the deposition process?
Is it mandatory to depose a witness?
In this article, we will thoroughly answer the question: what is a deposition?
We will provide you with all the information you need to know what is a deposition, how to prepare for it, what to expect from it, who is present, what happens at a deposition, what happens after and more.
Are you ready?
Let’s get started!
Deposition definition
According to the Merriam-Webster dictionary, the definition of deposition is:
“out-of-court testimony made under oath and recorded by an authorized officer for later use in court”
The deposition can also mean a “declaration” given by a person or a witness under oath.
What is a deposition?
A deposition is when a witness, or the deponent, answers a series of questions asked by an attorney about facts and events related to a lawsuit, in an out-of-the-court setting, under oath and recorded by a court reporter.
What’s important to note in the definition of deposition are the following components:
- Testimony
- Taken out of court
- Recorded
- Under oath
- Authorized officer
A deposition is generally related to the discovery phase of a lawsuit where the attorneys representing the parties look to gather information for a case.
What is the purpose of a deposition?
The purpose of a deposition is for the parties to a lawsuit to learn all the relevant facts about their case before trial so they have a fair chance at presenting all the relevant evidence to the court.
The parties can also evaluate the evidence and know what to expect at the trial.
This way, neither party can be taken by surprise by some unexpected evidence or new evidence that is revealed last minute.
These are some of the basic rights given to individuals to have a fair trial.
A deposition provides the attorneys with an opportunity to evaluate the witnesses, including their own clients.
In addition to the usefulness of finding out the facts about the case, an attorney can assess whether his or her own client is credible, is the story holding up, did the client say something that may hurt the case and so on.
At the end of the day, the purpose of the deposition is to gather all the relevant facts so parties to a lawsuit can assess their overall strengths and weaknesses.
In some cases, the parties may even reach a settlement depending on what was said or discovered at a deposition.
What types of depositions are there?
There are different type of depositions, such as:
- Oral deposition
- Written deposition
A deposition can be held in any type of lawsuit.
You can be involved in a business or commercial litigation, personal injury case, property disputes or even worker’s compensation claims.
A deposition is an important tool used by litigation lawyers to build their case for the final hearing.
Oral deposition
An oral deposition is when a person, who can be either a party to the lawsuit or a third-party witness, is asked questions in person and the deponent orally provides an answer.
The oral deposition is taken before a court reporter, an officer legally authorized to administer oaths and transcribe a person’s deposition.
Depending on the jurisdiction, a party may or may not need the court to authorize the oral deposition.
In addition, the court does not oversee the oral deposition process.
It’s a process handled by the parties to the lawsuit and the depositions are conducted in an out-of-court setting.
Often, lawyers tend to hold the oral depositions at their offices or at a mutually selected place.
The depositions can also be held directly at the courthouse.
Written deposition
A written deposition can be held in writing where the lawyers and parties are not present at the deposition.
The deposing lawyer will submit his or her questions to the court reporter mandated to depose the witness before the deposition date.
On the day of the deposition, the deponent answers the questions submitted to the court reporter in writing.
The witness’s answers are then recorded as per normal deposition standards.
In this type of deposition, the deposing party or attorney will provide a copy of the written questions to the court reporter in advance and that will require some work on the lawyer’s part to ask specific and clear questions.
The challenge with written depositions is that the lawyers need to live with the answers given by the witness to the written questions.
There is no follow-up opportunity to ask a complementary question or get clarification.
What is the deposition process?
To understand what is the deposition process, we must first understand the discovery process.
Depositions during the discovery phase
In the United States, the parties to a lawsuit are entitled to conduct discovery.
Discovery is when the parties are in the investigation phase of a lawsuit and are looking to better understand the factual underpinnings of their case.
With the relevant facts and potentially additional evidence in hand, attorneys can better define their litigation strategy, assess their strengths and weaknesses.
Discoveries can be performed in a number of ways:
- By sending a subpoena duces tecum to the other party or other to produce documents
- By conducting interrogatories through written questions
- Take depositions or oral statement of a witness under oath
Decide if depositions are required
Are depositions mandatory?
No.
Depending on the nature of the case, the attorney will determine if depositions are required or not.
If the attorney representing a party determines that they may benefit from conducting depositions, then the deposition process can begin.
In cases where the fact patterns are complex or important to establish the basis of a claim, deposition may be crucial.
The deposition process has two main objectives:
- Discover what a witness knows about the case
- Preserve a witness’ testimony
Decide where the depositions will take place
Depositions are taken outside of a courtroom.
They can be taken in one of the attorneys’ offices and in other cases in a designated private room at the courthouse.
Typically, in the room, you’ll have the attorneys, the parties, the witness and a court reporter.
Send a notice of deposition
It’s important to send the deponent a notice of deposition so they are ordered to appear at a certain time at a certain place for the examination.
Generally, the notice of deposition is sent by the opposing counsel or the party intending to depose the witness.
The attorney sending the notice of deposition is the attorney that will take the deposition or the “taking attorney”.
The day of the deposition
On the day of the deposition, you will have several parties present:
- Attorneys representing the parties to the lawsuit
- The deponent (witness)
- The court reporter
You can have more like translators, videographers or other lawyers.
Once everyone arrives and is present, the court reporter will swear in the witness.
The court reporter has the authority to swear in the witness and record everything that is said during the deposition session, word-for-word.
Once the witness is under oath, the taking attorney calling the witness will ask the witness a series of questions and the witness, the deponent, will answer the questions under oath.
The court reporter will be present during the entire session and will record everything, word-for-word.
Wait for the deposition transcript
Once the deposition is over, the court reporter will prepare the deposition transcript and send it to the parties.
Some stenographers use deposition software allowing them to generate a draft of the deposition transcript in realtime.
Otherwise, it may take a few weeks before the lawyers get the transcript.
What are the deposition methods?
So how do you take a deposition?
What are the possible methods of taking a deposition?
Depositions must be taken in accordance with the applicable rules of civil procedures.
There are different types of deposition:
- Live and in-person
- Video depositions
- Video conferencing deposition (online)
- Telephone deposition
A live deposition is when the witness is deposed in person.
A video deposition is when the witness is deposed in person and also recorded on video.
A video conferencing deposition is when the witness is deposed online using an online meeting platform.
A telephone deposition is when a witness is deposed on the phone.
Depending on the deposition method you choose, some will require leave from the court as per its procedural rules.
How does a lawyer ask questions at a deposition?
In other words, the type of questions attorneys can ask must respect the rules.
Attorneys cannot use a deposition as a fishing expedition but can ask questions broader than the questions they may be authorized to ask at the trial.
Also, the opposing party can raise objections to questions that must be ultimately handled based on the rules of procedure.
There are many types of objections to deposition questions such as:
- The question is confusing
- The witness is arguing the law
- The lawyer is badgering the witness
- Based on the rule of “best evidence”
- It’s a compound question
- Hearsay
- The counsel is testifying
- Question is irrelevant
- It’s a leading question
- It’s privilege information
- “Fruit of the poisonous tree” where the evidence was obtained illegally
- “Non-responsive” where the witness is not answering the question
You can read our post on objections in court for more details.
How does a lawyer prepare for a deposition?
Going into a deposition with the objective of asking a bunch of questions is amateur and pretty risky.
A litigation lawyer must understand what is the objective of the deposition.
You can have many objectives when deposition a witness:
- To document what the witness knows under oath and test if the story holds during the final hearing
- To get documents, exhibits, material or other evidence relevant to the case and in possession of the witness
- To lock a witness in a specific narrative
- To attack the credibility of the witness by uncovering lies or untruthful statements made
Depending on your objective, you’ll need to be prepared.
So how do you prepare?
You should ask yourself a few preliminary questions:
- Is the witness the adverse party or unfavourable?
- What is the information that you are hoping to get from this witness?
- Do you need the witness to explain the context of a particular event?
- Are there factual gaps in your case you are looking to fill?
Based on that, you can prepare an outline of your deposition questions that you know you must ask the witness.
Of course, the witness may give answers that quite often lead to ask other exploratory questions.
At the end of the day, you need to make sure you ask your ‘essential’ questions.
Who is present at the deposition?
There are generally a few parties present at the deposition:
- The taking attorney
- The opposing counsel
- Sometimes a third attorney representing the deponent
- If the lawsuit involves many parties, the lawyers of all parties can be present as well
- The deponent or the witness
- The court report
- Interpreter if the witness does not speak English
- You may also have a legal videographer if the deposition is videotaped
As you can see, you can have many people at the deposition!
How does a deponent prepare for a deposition?
Depositions often follow the same format.
The taking attorney asks a series of questions to the witness who answers under oath.
Depending on the nature of the case, you can have an idea as to what type of questions the taking attorney may ask.
Adequately preparing for a deposition is quite important.
You can read our post on pre-deposition preparation to learn more about it.
For example, in a case involving an accident causing damages, the questions will most certainly involve:
- General personal questions of the victim
- The physical location where the accident happened
- The context of the accident
- Explanations of the injury suffered
- The consequences of the injury after the accident
These are the general lines of questioning in this type of case.
If you are well-prepared, you’ll have a good understanding of the overall objectives pursued in the case, what to say and perhaps what not to say at a deposition.
What happens at the deposition in a lawsuit?
Depositions are as important as testimonies given in a courtroom in front of a judge but they are more laidback.
At the deposition, the taking attorney will ask the witness questions about what they know about the case.
The questions are intended to get a factual account of what the person knows, not the deponent’s opinion.
Often, the depositions are handled in a civilized fashion.
However, there are instances when the taking attorney attacks the witness, asks harassing questions or behaves in a way so the witness loses his or her temper.
On the flip side, some witnesses answer the questions clearly and others are evasive, can use profane language and in extreme cases get violent.
Often, nothing special happens at the deposition.
It’s like an interview.
In some cases though, the deposition can get heated!
What happens after a deposition?
After the deposition, the parties will need to wait for the court reporter to provide them with a copy of the deposition transcript.
The court reporter will send all parties a copy of the deposition transcript so everyone has the same information.
Once the lawyers get the deposition, they’ll go over it with their clients and determine if they need to change their litigation strategy in any way.
In some cases, many witnesses can be deposed and there can be hundreds, if not thousands, of transcription notes.
To avoid being overwhelmed by the sheer volume of transcription notes, it’s a good practice to prepare a depositions summary.
The process is called digesting a deposition.
What is the court reporter’s role in a deposition?
The court reporter’s role is to take down everything that is said during a deposition.
Literally, everything that is said, verbatim.
The role of a stenographer is crucial as the factual statements made by witnesses can have a significant impact on the outcome of a case.
A statement can be damaging to a party or it can lead to a favourable outcome.
A deposition can also alter the course of the litigation proceedings.
The transcript that is ultimately produced by a court reporter will be used by the parties to solidify their case or to attack the other party.
Is a deposition legally binding?
Yes, the statements made by the witness are made under oath and legally binding.
The deponent’s testimony is equivalent to a testimony given before a judge.
The depositions are binding as the statements made by the witness are preserved as evidence.
Any contradictions or statements made by the witness that does not fit within the deponent’s factual account of the events under oath can be used to attack the credibility of the person.
In some cases, a deponent who is a third-party to the case may also expose himself or herself to a lawsuit.
For example, if a witness, not implicated as a party, makes an incriminating statement, you may have a civil or even a criminal lawsuit filed against the person.
Another way the deposition is legally binding is when a person intentionally lies or makes a false statement.
False statements made under oath can lead to civil liability and also potential criminal charges like perjury.
Depositions and expert witnesses
In some cases, the lawyers must hire the services of an expert to get an opinion on a particular aspect of the case.
For example, a medical expert can be hired to analyze the facts of a case to point out medical malpractice.
Another expert can be hired to calculate damages a party may seek.
Depending on the nature of the case and what the parties need to prove, experts may be deposed.
Depending on the rules of civil procedure of the court where the lawsuit is filed, you may need the leave of the court to depose an expert witness.
Be sure to read our article on the Daubert standard regarding the admissibility of an expert witness testimony.
Make sure to follow the proper rules.
Common mistakes made by lawyers at depositions
Most often, the lawyers are the ones deposing a witness.
However, not all lawyers know what they are doing.
In some cases, they just show up and ask a bunch of questions just to say that they deposed a witness.
Here are some common mistakes made by lawyers at a deposition:
- They don’t have a clear objective
- They are not sure if they are deposing to gather information or get specific admissions from the witness
- They do not formulate their question properly to get the intended answer from the witness
- Lawyers want to ask questions about a document but do not have enough copies for everyone
- Lawyers get caught up on non-productive topics
- Lawyers do have proper control over the witness and allow the witness to go on irrelevant tangents
Takeaways
What is a deposition in a lawsuit?
A deposition is a crucial fact-gathering process where an attorney will ask questions to a witness who will orally respond under oath.
The testimony of the witness, or deponent, has the same value as if it was given in front of a judge.
Depositions can play a key role in the context of a lawsuit.
Depending on the nature of what is discovered during the deposition phase of a lawsuit, the parties may consider a settlement more seriously.
The deposition happens outside of the courtroom.
In some circumstances, the deposition may be used in trial depending on the applicable rules of evidence.
Everything that is said during a deposition is recorded by a court reporter.
Ultimately, the court reporter will provide all parties with a copy of the deposition transcript allowing the parties to carefully review what was said and adjust their strategy as needed.
We hope this article provided you with the basics to understand what is a deposition.
