A deposition is an out-of-court hearing during which a witness is questioned on record in a civil lawsuit. During testimony, lawyers direct questions towards the witness that may strengthen their case. The witness responds to each question, or the question is challenged by opposing counsel. The line of questioning becomes part of the court record and can be recalled in court. This vital process allows both parties to gain a better understanding of the case, and can provide a powerful impetus to settle, seek more information, or soldier on toward trial.
The witness being deposed—sometimes called the deponent—is generally a key witness or participant in the lawsuit. This can be the plaintiff, the defendant, a character witness or an expert witness. In some cases, a deposition witness will not be related to a party in the lawsuit (e.g., a neighbor, landlord, or eyewitness); if these third-party deponents are unwilling to testify, a subpoena can be served to ensure cooperation.
Ultimately, a worthwhile deposition will expose valuable new information about the case that can help reach a resolution—or, lay the groundwork for a successful trial strategy. Both attorneys should use this stage of the process to understand the weak spots in their cases. It’s not just about obtaining favorable testimony; they’re also about learning everything you would want to know before your client’s trial begins.
What Happens at a Deposition?
Depositions occur at an agreed-upon date and time, in law offices or conference rooms. It typically includes the witness(es), the attorneys, and a court reporter; if the witness will not be available at trial, a videographer may also be present to record the questioning, which later gets distributed to both parties as a written transcript. No judges are present.
The deposition process begins with the swearing in the deponent, which the court reporter officiates. The oath taken simply requires that the witness tell the truth to the best of their abilities. (Failing to tell the truth is considered perjury and can result in serious penalties.)
Then, the attorney who requested the deposition will ask the deponent questions about the case; the deponent’s attorney wants to make sure that their client understands the question before answering. The opposing attorney can ask the witness followup questions as a sort of cross examination, but the deponent's attorney will generally only participate when they object to questions from opposing counsel.
How long do depositions take?
An average deposition takes between two and four hours from start to finish but this is highly variable. The question-and-answer session can take as little as 10 minutes or as much as several hours. The length depends on factors like:
- The case’s complexity
- The number of questions
- The deponent's answers
- The number of exhibits
… and other specifics of the case.
In most states, and in accordance with the federal rules of civil procedure, the maximum allowable time for a single deposition is seven (7) hours. Depositions may take several days, but the total length of the deposition cannot exceed the time limit set by state and federal guidelines.
What is “discovery” in a legal case?
Discovery is any formal investigation performed on behalf of a party to a lawsuit that allows them to find out more about the case. This is done through a series of requests for discovery, or interrogatories. Discovery enables parties to present facts and new evidence to refine their legal arguments, and prevents unexpected delays during trial. In some cases, discovery reveals information that helps the opposing sides reach a settlement and avoid the expense and risk of going to trial. Personal injury attorneys generally attend at least one deposition.
Depositions occur during what is known as the discovery phase, during which both sides of the case collect information and evidence to strengthen (or settle) their case. When a settlement is not reached after negotiations, the plaintiff will often opt to go to trial.
An effective deposition is one that establishes the defendants’ duty of care, proves breach of contract, corroborates a causal relationship between incident and injury, or otherwise provides evidence to support your case.
In addition to deposition testimony, discovery can include:
- Medical records
- Insurance company documents
- Photos and videos pertinent to the case
- Police reports
- Financial documents
- Personal emails and memoranda
- Meeting minutes
- Social media posts
- Text messages
During discovery, either party can use subpoenas to request relevant documents or testimony that are not willingly disclosed. Depending on the scope of the case, the discovery phase can take months, or even years, to complete.
What happens after a deposition?
After a deposition, both parties may have discovered additional information that they choose to investigate. Depending on the evidence collected through the deposition transcripts, the discovery phase will continue with more requests for production and depositions, or one or both parties may seek to resolve the case through settlement.
Sample Deposition Questions for Plaintiff
You may be wondering what kinds of questions are asked in a deposition. Generally, the range of questions in a deposition is wider than the range of questions asked in court, as no judge is present during the questioning. While the deponent’s attorney may object to some inquiries, the deponent is usually obligated to answer all questions asked. At a future date, a judge may render certain questions impermissible in court.
Deposition questions have two main purposes: to find out what the witness knows (or believes), and (2) to preserve that witness's testimony as evidence in the case. Contrary to courtroom dramas, it is rare that there are any “surprise witnesses” in courtroom proceedings; however, depending on the structure of the questions, there can be any number of surprising moments during deposition questioning.
Deposition questions may include simple information-gathering questions like the following:
- What is your full name?
- What is your current address?
- What is your date of birth?
- Can you provide an overview of your educational background?
- Are you currently employed?
- Are you married?
- Do you have minor children or any other dependents?
Some deposition questions may have to do with how the deponent prepared for the meeting:
- How did you prepare for your deposition today?
- Did you speak to anyone besides your attorney about the car accident?
- What did you discuss during your deposition preparation?
- What case documents have you reviewed?
- Did you meet with opposing counsel or receive any legal advice prior to the deposition?
Deposition questions cannot be leading, and deponents will have been instructed not to volunteer information without a direct question on a certain topic.
Can a Deposition Be Taken in a Criminal Case?
While depositions are not typically taken in criminal cases, there are occasional exceptions. One may be taken in lieu of taking the stand in court if a witness is over the age of 65, considered an adult dependent, or has a medical condition that may prevent them from being able to testify at trial. A criminal deposition is also appropriate in cases where the deponent may be unavailable.
