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A deposition is another type of discovery that is used to gather information. It is when one party questions the other party or a witness outside of court, under oath, so that the parties know what that person will say at trial. The parties or their attorneys have the ability to ask questions of the person being deposed. Usually the person who requested the deposition will ask questions first. The attorney who represents the person being deposed might ask follow-up questions only to clear up any misunderstandings that may have come up during the initial questioning.
You, or your attorney, if you have one, can object to questions that are asked but the objections are usually only noted in the transcript. Usually, the person being deposed would still have to answer the question. The reason for objecting is that it preserves the objection so that a judge may be able to rule on it at a later date, as a result of a motion, at trial, or on appeal.
If you are testifying at a deposition, you should make sure to tell the truth and do not try to make up answers. If you cannot remember something, it is okay to say “I don’t know” or “I don’t remember.” After a deposition is completed, the transcriptionist, also called a court reporter, will produce a written copy of the deposition, which is called a transcript. You should look through the transcript to see if there are any errors and, if so, make sure to alert the other party or his/her lawyer. An error in the transcript occurs when the transcriptionist writes something down that you didn’t actually say. Transcriptionists are human and sometimes errors do occur – they may hear you wrong or mis-type an important word. If an error is not corrected, it might have major implications for a case. If the transcript has the wrong time, wrong date, or other wrong answer that is not corrected before trial, it could be used against you at trial. If someone has testified in a deposition and then he/she changes his/her testimony at trial, the attorney can use the deposition transcript to call into doubt the truthfulness of that person’s trial testimony.
How can depositions help or hurt my case?
Depositions can be very helpful to your case because they will let you know ahead of time what testimony you can expect from the other party and from their witnesses. That way, you can better prepare yourself to ask cross-examination questions or enter documents at trial that might show that the other party or their witnesses are lying. You can also use the deposition transcript itself as evidence if the person who is testifying at trial says something different from what s/he said during depositions.
This also works the other way around though. Depositions can help the other side to build their case against you. If you say something in a deposition that later turns out not to be true or that you describe differently when you testify at trial, it could seriously hurt your case at trial. The other lawyer could use any inconsistencies in your deposition to call the truthfulness of your entire testimony into question.
Who will be at a deposition?
Usually only the parties, their lawyers, a transcriptionist/court reporter, and the witness who is being deposed will go to the depositions. The transcriptionist will type everything that is said so that the parties have a written record of the depositions, known as a transcript. You do not have to depose all witnesses on the same day. Depositions might happen over the span of several different dates. Although the judge is not present during the deposition, sometimes a judge will be “on call” in case there are disputes over any questions, but this is typically only in high profile cases. Usually any issues or objections that are raised during a deposition are dealt with by the judge at future court appearances.
What questions should I expect to be asked at a deposition and how should I answer them?
Usually the parties or their attorneys have a chance to ask any questions related to the case that they want. If you have a lawyer, you should discuss what to expect at depositions with your lawyer prior to depositions. If you do not have a lawyer, you may want to practice explaining what happened to a trusted friend or family member so you get comfortable talking about it out loud.
You will be under oath at depositions, as will the other people being deposed, so you have to answer truthfully or you could face perjury accusations. Do not try to make up answers. If you cannot remember something, it is better to say “I don’t know” or “I don’t remember” than to give an answer that you are not sure about.
When the other party or his/her attorney is asking you questions, you will usually want to answer the questions with as little information as possible for a few reasons:
- A deposition is not in front of a judge or jury and so there is no reason to try to add extra details that you may otherwise add if you are trying to impress a judge or jury.
- One point of depositions is to lock in the testimony of the parties and witnesses so that the parties know where they stand going into trial and can make decisions about settlement or trial strategy. You want to help the opposing party as little as possible in this regard.
- Either side can use deposition testimony to discredit witnesses at trial. The more details that you testify to at a deposition, the greater the chance that you might describe those details differently at trial.
In sum, when answering deposition questions, it is very important to be honest, to not give answers that you aren’t sure about, and to make sure that you are only answering the question without providing extra unnecessary detail. We have a Preparing for Court video series on our Videos page that has examples of both direct and cross-examinations that might help you prepare for a deposition.
Who pays the deposition costs?
Usually the party that asks for the deposition will pay the deposition costs of the transcriptionist and for the room if space has to be rented out. This can be very expensive, into the thousands of dollars depending on how many witnesses there are and how long the depositions last. Each party pays for their own attorney’s time at the depositions, however.
If you are thinking about asking for depositions, you may want to call a transcriptionist to see if you can get an estimate of the charges for his/her services. If you have an attorney who you are paying hourly, you may also want to get an estimate from your attorney for his/her time.
You do not have to depose every single person who is going to testify at trial. If money is an issue, you could think about deposing only the other party or key witnesses. If you cannot afford depositions, then you do not have to ask for them. The other party can still request depositions from you and/or your witnesses if s/he wants to and, if you have an attorney to defend you at the depositions, you would still need to pay your own attorney’s fees.
How do I schedule a deposition?
The party that wants a deposition will usually send out a deposition demand that includes a time and place for the deposition to occur, or it might say that the time will be decided later. If the time is to be decided later, then the attorneys in the case or the parties, if there are no attorneys, will decide on a time that works for everyone involved. The person who asks for the deposition also has to hire a transcriptionist to produce a written transcript of the deposition.
It is possible to object to the other party taking depositions. Some of the reasons that a party might object to a deposition demand are that not enough notice is given or the witness has no relevant information.
