How Does a Deposition Work? What To Expect and How To Prepare

A deposition is a formal question-and-answer session in which you provide sworn testimony before trial. During a deposition, an attorney asks questions while a court reporter records your answers. Depositions are commonly used in civil cases as part of discovery, but rules and procedures vary by case type and filing location. Knowing what happens during a deposition, what questions you may be asked, and what rights you have can help you walk in prepared.

A deposition can feel unfamiliar because most people don’t experience one until they’re involved in a lawsuit. The setting may look less formal than a courtroom, but your answers can play an important role in your case. Preparing ahead of time can help you avoid common mistakes and feel more confident when it is time to testify.

If you are preparing for a deposition, an experienced civil litigation attorney can help you understand what to expect.

What Is a Deposition?

A deposition is a legal proceeding where a witness or party answers questions under oath before a case goes to trial. It occurs during discovery, when both sides gather evidence and learn more about the case’s facts. A court reporter records every question and answer, then prepares a written transcript that attorneys can reference throughout the case.

Although depositions carry the same obligation to tell the truth as court testimony, they usually happen in a law office, conference room, or via a virtual platform rather than in a courtroom. Attendees typically include the person being questioned, the parties’ attorneys, a court reporter, and, in some cases, a videographer or interpreter.

When Do Depositions Happen During a Case?

Most depositions occur after a civil lawsuit is filed but before the case reaches trial. They are a standard part of the discovery phase, giving attorneys a chance to gather testimony, evaluate evidence, and better understand each side’s case strengths and weaknesses.

Depositions are especially common in personal injury cases, but they also appear in employment disputes, business litigation, contract claims, medical malpractice lawsuits, and some family law matters. Criminal cases are different. Depositions are generally less common, and the rules vary by jurisdiction. Some states allow them only in limited situations, while federal criminal cases follow different discovery procedures.

Who Can Be Deposed?

Several people associated with your case can be deposed. First are the parties who filed the lawsuit or are defending it. It can also include any other party directly named in the lawsuit.

Outside these parties, you can call in third parties, including eyewitnesses, medical professionals, coworkers, experts, and anyone with relevant knowledge.

How Does the Deposition Process Work?

Depositions follow a set procedure and process to ensure consistency. These steps also help protect everyone’s constitutional and legal rights.

Step 1: Notice of Deposition

The first step is to schedule a deposition and notify the involved parties. A party’s attorney typically notifies the opposing party of their intent to take a deposition.

The notice identifies who will be questioned, when, and where the deposition will occur. In some situations, a subpoena may be used, such as to require a nonparty witness to attend or bring documents, but parties are often required to attend based on a proper deposition notice.

Step 2: Preparing for the Deposition

Preparation is one of the most important parts of the process. All parties involved will begin preparation once they receive notice. This includes reviewing evidence and prior statements. A lawyer may run practice depositions with their clients.

Step 3: Swearing in and Basic Instructions

Depositions commonly take place in a large space, such as a conference room. Several people attend, including attorneys, the deponent, and a court reporter. The court reporter will begin by swearing in the deponent.

The attorney conducting the deposition will cover basic rules, such as speaking clearly, avoiding gestures or nodding, and waiting until the question is complete before answering.

Step 4: Questioning

Once the deposition begins, the attorney who scheduled it will usually ask the first round of questions. The discussion often starts with basic background information before moving into the facts of the case.

Depending on the type of lawsuit, you may be asked about conversations you’ve had, documents you’ve reviewed, events leading up to the dispute, or the injuries or financial losses involved.

Deposition length depends on the case and the court’s rules. In federal civil cases, a deposition is generally limited to one day of seven hours unless the court orders otherwise, and some state courts have different limits. The amount of time generally depends on the number of issues involved and how much information the witness must provide.

Step 5: Reviewing the Transcript

Afterward, the court reporter prepares a deposition transcript. The witness may have an opportunity to review and make corrections depending on applicable rules.

You can use the transcript in the case, such as to support motions or for impeachment at trial, but in many cases it isn’t automatically filed with the court unless you use it or the court orders it.

What Rights Do You Have During a Deposition?

Attending a deposition can feel invasive as you are asked question after question. While you must actively participate, you aren’t without rights:

• Have an attorney present
• Ask for clarification
• Take breaks
• Do not answer certain questions, in limited situations, such as when a truthful answer would be protected by a privilege, including the Fifth Amendment right against self-incrimination

Can You Refuse To Answer Questions During a Deposition?

Depositions are part of the legal process, and refusing to participate can have consequences. You can’t refuse to answer a question just because you don’t like it or find it inconvenient.

If you refuse to answer specific questions, the court may take additional steps, such as a motion to compel you to answer or sanctions. In some situations, you may be required to pay the other party’s costs associated with the deposition.

There is a difference between deciding you don’t want to answer a question and having your attorney object on your behalf. Lawyers understand the rules of civil procedure and will object to questions that violate them.

What Happens If You Lie During a Deposition?

Never lie during a deposition. You give your answers under oath. That is the same as testifying in court during your trial. Lying carries serious consequences.

Getting caught in a lie can damage your credibility and reputation and lead to bigger problems in your case. The other party may use discrepancies in your statements against you. In some situations, you could face perjury charges. For example, you could face perjury charges if you intentionally provided false testimony.

Forgetting something or making an honest mistake is not the same as lying. If a witness realizes an answer was incorrect, they should discuss the issue with their attorney. Additionally, answering questions without volunteering information is different from lying. While you must answer honestly, you don’t need to provide more information than you were asked in your deposition testimony.

How Should You Prepare for a Deposition?

Working with an attorney experienced in depositions will help you prepare. They will review all the relevant documents with you to ensure you understand the facts. This is essential because weeks or months can go by between the incident and the deposition. Refreshing your memory beforehand helps you avoid mistakes or misstatements.

During this time, it can be tempting to talk to friends or family. Avoid doing so. This can distort your memory or harm your testimony. Instead, work with your attorney to do a mock deposition. They will have you practice pausing before answering. This gives you a chance to gather your thoughts and gives your attorney a chance to object to questions on your behalf.

Practicing answers also helps you develop direct, concise responses that avoid speculation or exaggeration. Remember to remain calm and professional. Don’t take questioning personally or let it make you emotional.

Questions To Expect During a Personal Injury Deposition: From Medical History to Social Media Posts

If you’re part of a personal injury lawsuit, you may be deposed in preparation for trial. The questioning typically focuses on the incident that caused the plaintiff’s claimed injuries and how those injuries affected their life.

Be prepared to answer questions about your medical records. The defense attorney may ask about a prior diagnosis, existing medical conditions, medications, treating physicians, and past or ongoing treatment. These questions matter because the defense will investigate whether a preexisting condition could contribute to the plaintiff’s current symptoms.

The defense attorney may bring up previously made public statements or social media posts. If these are available online, then opposing counsel or anyone else can easily access them. They may ask questions about text posts, photographs, or videos. A single post may lack context. On its surface, it could contradict the plaintiff’s claims. However, with your attorney’s guidance, you can provide the necessary context.

Answering medical questions and recalling incident details can be confusing, especially when the defense attorney is asking questions. Opposing counsel may ask the same thing multiple ways or compare answers against documentation. The goal is to test the consistency of the plaintiff’s answers. They may also be looking for gaps in the story or treatment history.

Leading questions can make you accidentally or unknowingly get tripped up. This is why it’s important to pause before answering. Gather your thoughts and make sure you understand the question before you start speaking. You also have the right to ask to see the document the defense counsel is referencing.

You aren’t expected to remember every detail perfectly. Ask to review relevant documents and then directly reference the data included.

Work with an Attorney Before a Deposition

Depositions are a key part of many legal cases because they allow attorneys to gather information before trial and evaluate the testimony of parties and witnesses. Working with an attorney before a deposition can give you a clearer understanding of what to expect and how to respond to difficult questions.

If you need legal guidance before a deposition, use the Super Lawyers directory to find an experienced civil litigation attorney.