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 the discovery process, but the rules and procedures can vary depending on the type of case and where it is filed. Knowing what happens during a deposition, what questions you may be asked, and what rights you have can help you walk into the process prepared.

A deposition can feel unfamiliar because most people never experience one until they become involved in a lawsuit. The setting may look less formal than a courtroom, but the answers you give 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 takes place during the discovery phase, when both sides gather evidence and learn more about the facts of the case. 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 testimony in court, they usually happen in a law office, conference room, or through a virtual platform instead of a courtroom. The people present typically include the person being questioned, attorneys for the parties, a court reporter, and, in some cases, a videographer or interpreter.

When Do Depositions Happen During a Case?

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

Depositions are especially common in a personal injury case, but they are also used in employment disputes, business litigation, contract claims, medical malpractice lawsuits, and some family law matters. C

riminal 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 called into a deposition. The first are the parties who filed the lawsuit or who are defending it. It can also include any other party directly named in the lawsuit.

Outside of these parties, third parties can be called in, including eyewitnesses, medical professionals, coworkers, experts, and anyone who may have relevant knowledge.

How Does the Deposition Process Work?

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

Step 1: Notice of Deposition

The first step is to decide to perform a deposition and send notice to the involved parties. A party’s attorney will typically send notice to the opposing party of their intent to take someone’s deposition.

The notice identifies who will be questioned, when, and where the deposition will occur. A subpoena may be used in some situations, such as requiring 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 will be in attendance, including the attorneys, deponent, and court reporter. It will begin with the court reporter swearing in the deponent.

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

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 the amount of information the witness has to 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.

The transcript can be used in the case, such as to support motions or for impeachment at trial, but it is not automatically filed with the court in many cases unless it is used 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
• 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 simply because you don’t like it or think it’s inconvenient.

If you try to refuse to answer specific questions, additional steps may be taken, such as court involvement, 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 questioning that violates those rules.

What Happens If You Lie During a Deposition?

It is never a good idea to lie during a deposition. The answers you give are given under oath. That is the same as testifying in court during your trial. Failing to tell the truth carries serious consequences.

Being caught in a lie can damage your credibility and reputation, and it can also lead to greater problems in your case. The other party may use discrepancies in your statements against you. Additionally, you could face perjury charges in some situations. For example, when it’s shown that you intentionally provided false testimony.

It’s important to note that 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 need to answer honestly, you don’t need to give more information than what was asked in your deposition testimony.

How Should You Prepare for a Deposition?

Working with an attorney who has experience with depositions will help with your deposition preparation. They will review all of the relevant documents with you to ensure you are secure in the facts. This is essential because weeks or months can go by between the incident and the deposition. Refreshing your memory beforehand ensures you don’t make mistakes or mis-speak.

During this time, it can be tempting to talk to friends or family. Avoid doing so. This can distort your memory or negatively impact you. 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 answering questions also gives you a chance to form direct and concise answers that avoid speculation or exaggeration. Remember to remain calm and professional. Don’t take questioning personally or allow yourself to become emotional.

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.