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What is a Deposition?

Created by FindLaw's team of legal writers and editors.

News coverage of high-profile cases often brings into the spotlight the use of depositions and deposition testimony of witnesses which is different from testimony given in court. But what is a deposition and how do they work? Read on to learn about the discovery process, some basic information about depositions, and how depositions work.

Overview of the Discovery Process

In a lawsuit, all named parties have the right to conduct discovery, a formal investigation, to find out more about the case. Pre-trial access to this information allows the parties to use facts and potential evidence to better define their strategies and avoid delays once the trial begins. In some cases, what's learned during discovery might even help the opposing sides come to a settlement without having to go to trial at all. Discovery can come in a number of different forms, with the most common being subpoenas for relevant documents, interrogatories (written questions), and depositions -- the taking of an oral statement of a witness before trial, under oath.

Whether a deposition is needed depends on the unique facts and circumstances of each case. Cases that involve only legal, not factual, issues usually don't require them since witness testimony and other evidence isn't relevant to these decisions. In many lawsuits, however, depositions play an important role in painting a more complete picture of the events in question.

Deposition Basics

Unlike the information recorded in documents or the attorneys' answers to interrogatories, a deposition involves a living, breathing witness being asked questions about the case. The deposition has two purposes: To find out what the witness knows and to preserve that witness' testimony. The intent is to allow the parties to learn all of the facts before the trial, so that no one is surprised once that witness is on the stand. Contrary to what countless movies and TV shows would have you believe, springing a surprise witness at the eleventh hour of a trial is regarded as unfair. By the time a trial begins, the parties should know who all of the witnesses will be and what they'll say during testimony.

A deposition is an opportunity for understanding the case better and not solely about getting favorable testimony. If, for example, a witness' version of events would undermine your case, that's something you'd need to know about long before trial, since last thing you'd want is to be caught off-guard by hearing damaging testimony for the first time when that witness takes the stand. Basically, a deposition is an opportunity for all sides to learn where the weak spots are in their respective cases, then prepare for ways to avoid or rebut them at trial.

How Depositions Work

Depositions don't take place in courtrooms; instead, they usually takes place in attorneys' offices. The attorneys will ask the witness, or deponent, a series of questions about facts and events related to the lawsuit with the entire deposition recorded word-for-word by a court reporter. The reporter is present throughout the session and will produce a transcript at a later time. A deposition can also be videotaped. This is usually done when the deponent is very ill and may not be well enough for trial, or if the deponent will be out of town or otherwise unavailable during trial.

All parties to the case may attend the deposition and a deponent often has their attorney present, albeit with a more limited role than the attorney would have in a courtroom. Generally, deposition questions can be broader than what's allowed in court. Attorneys for the deponent or parties to the lawsuit may make objections to some inquiries, but the deponent is usually obligated to answer all proper questions despite objections, which are ruled on later since judges are not present at depositions (except in special cases where immediate rulings may be necessary).

A deposition can be as short as fifteen minutes or a long as a week or more for a heavily-involved witness. All depositions are very serious matters and what's said at them is very important. Deponents should listen to the questions carefully and answer them precisely. Remember, deponents are under oath, and any false statements made under oath can have both civil and criminal penalties.

Have More Questions About Depositions? Talk to a Local Attorney

If you're ever expected to be a witness in a lawsuit, be sure to familiarize yourself with what's involved in any potential depositions. It may also be prudent to speak with a skilled litigation and appeals attorney who can help guide you and preserve your interests, particularly in complex matters with multiple parties.

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