A deposition is a legal procedure where a person, called the deponent, answers questions under oath to provide information and clarify details about a specific case.
Preparing for a deposition involves several important steps to ensure that the information given is clear and accurate. This process is part of the pre-trial phase.
In this article, we'll explain how a deposition works, give examples of a deposition, and walk you through the steps to prepare effectively.
What is a Deposition, and What Happens During One?
A deposition is a formal legal process that occurs before a trial, where the deponent provides a statement about the case, giving personal observations, factual details, and any relevant information he or she may have.
This process allows the plaintiff, defendant, and their attorneys to gather detailed information from the deponent and any other relevant witnesses, helping them prepare their cases before going to trial.
However, it's essential to make one crucial distinction: deposition vs. testimony.
While both terms involve providing evidence, a deposition is a pre-trial procedure where a witness's statements are recorded in detail, whereas testimony refers to the statements made by a witness during the actual trial.
During a deposition, the deponent is asked a series of questions by the attorneys representing both parties. The questions asked during a deposition focus on resolving the main facts of the case, including dates, events, and key people involved, so the deponent is obligated to provide truthful and precise answers.
The deposition is conducted under an oath, legally requiring the deponent to tell the truth. It typically takes place in a lawyer's office or a conference room, with a court reporter present to transcribe the entire session. In some cases, the deposition might also be videotaped.
Overall, a deposition presents an important tool in the legal process, as the deposition record can be used during the trial to challenge the deponent's credibility, refresh their memory, or present consistent testimony.
How Do Depositions Work?
Depositions, whether in civil or criminal cases, generally follow a standardized procedure aimed at efficiently conducting the process and obtaining a comprehensive statement from the deponent.
We will now provide a detailed explanation of all relevant aspects of the deposition process.
What Happens Before a Deposition?
Before the deposition process officially begins, specific preparatory steps are taken. First, the deposition’s date, time, and location must be determined, specifying when and where the deponent will answer the questions.
Typically, the parties involved mutually agree on these details and then notify all interested parties through a formal deposition letter. In some cases, particularly when specific documents or evidence are needed, the deposition notice may be accompanied by a subpoena.
A subpoena is a legal document that compels the deponent to attend the deposition and, in the case of a “subpoena duces tecum” (subpoena for production of evidence), to bring specified documents or other evidence.
The deposition is usually conducted outside of court, such as at a law office, the deponent’s workplace, or even their home if they cannot leave their residence.
Once the date, time, and location are set, the attorney starts preparing the deponent for what they may expect during the central deposition phase. This means they review significant case points, relevant documents, case facts, and potential questions the opposing party might pose.
Preparation is very important because every word in the deposition carries weight and can influence the outcome of the case.
Who Participates in a Deposition?
Among those who participate in deposition, the central participant is the deponent. This is the person answering the questions, and it can be a witness, an expert, or a plaintiff or defendant. Attorneys play a crucial role in the process, so attorneys from both parties participate.
The task of the deponent’s attorney is to prepare a strategy for the deposition, while the opposing attorney aims to challenge the deponent’s answers, identify factual gaps, and create an advantage for his or her client in the ongoing proceedings.
Since the deponent is answering outside the courtroom, a court reporter is present to track the process and provide an authentic transcript of the entire examination, including all questions, answers, and objections.
Depending on the case, other individuals, such as paralegals, investigators, or experts, may also be present during the examination to become better familiar with the details that are important for their role in the later stages of the case.
Deposition Process
The deposition typically begins with introductory remarks from the attorneys and an explanation of the deposition’s purpose, while the court reporter informs the participants about the rules of the deposition.
The deponent then acknowledges that he or she understands the purpose of the deposition, the importance of the oath, and the consequences of false answers. Finally, they swear to tell the truth and not to omit anything they know.
After this, the central phase—questioning—begins.
The first questions are posed by the party’s attorney, who requested the deposition, followed by the questions from the opposing attorney, which constitutes cross-examination.
Each attorney has the right to make deposition objections if they believe the questions are suggestive, irrelevant, or improper. The court reporter records all these objections in the transcript.
Since the questioning can be lengthy and tiring, the deponent may request breaks to consult with their attorney or to rest, after which the process continues.
Deposition Questions
Deposition questions are formulated to gather detailed and relevant information about the case. There are different types, each serving a specific purpose.
Factual questions focus on getting precise details about events, activities, or documents related to the case. For example, a question might ask, “What did you do on the day of the incident?” This type of question establishes clear facts that are crucial to understanding the case.
Clarification questions are designed to make previous answers clearer or to provide more detail. If a response was vague or incomplete, the attorney might ask, ”Can you explain further what you meant by that statement?” This type of question helps ensure that the testimony is fully understood.
Impeachment questions challenge the deponent’s credibility or the consistency of their statements. For instance, if there is a discrepancy between what was said in the deposition and earlier statements, an impeachment question might be, “How do you explain this discrepancy?” These questions aim to highlight any inconsistencies or issues with the testimony.
Hypothetical questions involve presenting the deponent with imagined scenarios to measure their reactions to or understanding of certain situations.
For example, “How would you respond if the following situation occurred?” is a type of question that tests how the deponent might handle or interpret hypothetical situations related to the case.
How Long Do Depositions Take?
Deposition usually lasts for one day, capped at seven hours. This time limit, which most states follow based on the Federal Rules of Civil Procedure (FRCP), is meant to keep the process efficient and manageable.
If more time is needed, for example, if the questioning takes longer than expected or there are interruptions, the court can allow extra hours. Typically, each party in a case is allowed to conduct up to ten depositions, but the rules can vary slightly depending on the state or specific court orders.
What Happens After a Deposition?
After the deposition, the court reporter who transcribed the proceedings will prepare a written transcript of everything that was said and send it to the deponent for review.
The deponent has 30 days from the time he or she is notified that the transcript is available for review. During this period, the deponent can make changes to the transcript in form or substance and must provide a statement explaining the reasons for these changes.
Once the deponent completes their review and any necessary changes, the court reporter will include the deponent’s revisions in the final transcript. This finalized transcript becomes part of the official case record.
Attorneys on both sides will review it to identify critical information that could be used in court, either as evidence or to challenge a witness’s credibility if their testimony before the court differs from their deposition.
How to Prepare for a Deposition as a Deponent: 7 Useful Tips
A deposition has a significant role in a legal case as it presents evidence that can be used during the trial to prove critical facts and help resolve the case.
Here are some tips to help you prepare effectively:
Deposition Preparation Tips
Review relevant documents. Examine all documents related to the case, including lawsuits, complaints, and any previous depositions. If you've given statements or testimony before, review them to ensure your answers are consistent.
Meet with your attorney. Discuss the case strategy with your attorney and review the questions you might face. Have your attorney guide you through the process, including practicing the questioning and addressing the tricks lawyers use in depositions to help you prepare.
Know the key facts. Understand your role in the case and how your testimony fits into the overall narrative. Don't isolate your deposition from other facts, yet familiarize yourself with the entire case to ensure your statements are comprehensive and accurate.
Practice your deposition. Rehearse answering questions clearly and directly, avoiding long-winded answers or speculation. Also, if you're unsure of an answer, it's better to admit it rather than guess.
Prepare mentally and physically. Ensure you're well-rested before the deposition. Being rested will help you think more clearly and stay focused. If you're feeling anxious, practice relaxation techniques to stay focused.
Follow deposition etiquette. Listen carefully to each question before responding. Answer only what is asked, and avoid offering extra information. Since you are under oath, be honest. So, if you don't know or remember something, admit it rather than make a tentative statement.
Take your time to think before answering. There's no need to rush. If you don't understand a question, ask for clarification before responding. And if you need a break at any point, don't hesitate to ask for one.
Final Thoughts
The deposition process plays a crucial role in both the discovery phase and the subsequent court trial, as it holds evidentiary value and is a part of the case file. Since a deposition is given under oath, it is essential to be meticulous about the content of your statement and how you present it.
By approaching the deposition with responsibility and thorough preparation, you will ensure that your deposition is clear and accurate. This preparation will help you know what to expect, be ready to respond to all questions, and effectively affirm your deposition in court.
What is a Deposition FAQ
No, you can’t refuse a deposition. If you are subpoenaed, you must attend the deposition. Refusing without a valid reason may result in legal penalties. On the other hand, you can object to specific questions during the session.
During a deposition, you should not say anything speculative or untruthful. You should generally refrain from guessing or providing unnecessary details. Focus only on concise answers based on your knowledge.
No, you don't need a lawyer for a deposition, but it's best to consult one. They can protect your rights, help you understand the process, and answer questions correctly, ensuring that your answers don't harm your case.
