Deposition

Part of the pre-trial discovery process, a party to a civil lawsuit, or his attorney, may set up a deposition to take the sworn testimony of the opposing party, a witness to the incident, or an expert witness.

The actual deposition is a meeting which occurs outside the courtroom, usually at an attorney’s office, and is done before the trial in an effort to investigate the matter, and to gather valuable information. The testimony given in a deposition is recorded by a court reporter. To explore this concept, consider the following deposition definition.

Definition of Deposition

Noun The giving or taking of a testimony under oath, recorded in writing, to be used in the investigation of a case, and possibly in court.
Origin 1400 Middle English

What is a Deposition

A deposition is just one tool used in the discovery process, which is the process of acquiring evidence before a trial. Other tools used in the discovery process include interrogatories, which are written questions requiring answers by the opposing party, and requests for production of documents. If the individual who is to provide testimony at the deposition, or to “be deposed,” is the opposing party, the notice providing the date, time, and place of the deposition may simply be sent to his or her attorney. If, on the other hand, the person to be deposed (also referred to as a “deponent”) is an independent party, or an expert witness, he or she must be served with a deposition subpoena.

The attorney representing the party being deposed will be present during the deposition, and may express objections to questions if appropriate. A third party or expert witness may also be represented by an attorney if desired. Before the deposition begins, the deponent will be sworn to answer questions truthfully. During the deposition, the deponent will be questioned by the deposing attorney, with all of the questions and responses being recorded by a court reporter, and sometimes by audio or video recording as well. In fact, there is no difference in this respect to questions asked during a trial, except there is no judge present at a deposition.

Deposition Questions

Questions asked during a deposition vary as widely as the cases themselves. Certain preliminary questions are always asked at the beginning of the deposition, including:

1. Please state your full name.
2. Please state your address.
3. With whom are you employed, and what is your position?

Other deposition questions likely to be asked include questions to be sure the deponent understands the process:

1. Have you ever given a deposition before?
2. Do you understand that the oath you just gave is the same oath given in a court of law?
3. Has your attorney explained the nature of this deposition, and are you satisfied with his explanation?
4. Do you understand that, if you do not understand a question, you should tell the person asking the question that you do not understand?
5. Is there any reason this deposition should not proceed?

Preparing to be Deposed

Anyone preparing to give testimony at a deposition should understand how to go about understanding and answering deposition questions. Because deposition testimony is given under oath, it is important to be prepared mentally.

• Answer truthfully – failing to tell the truth in a deposition may harm your case later if the truth comes out at or before trial. More importantly, it is considered perjury, which is a felony.
• Listen to each question – be sure you have heard each question clearly and completely before answering. It is ok to ask the attorney, or the court reporter, to repeat a question.
• Understand each question – never answer a question unless you feel confident you understand it fully. If necessary, ask the attorney to repeat or rephrase the question.
• Pause before answering each question – pausing before answering each question to consider your response gives your attorney an opportunity to make an objection.
• Never guess – if you do not know the answer to a question, simply say I don’t know.
• Clarify estimations – if you estimate time, distances, or other quantifiable information, be sure to say that your response is an estimate.
• Never explain or justify an answer – your job is to state what facts you know, and you are not required to justify how or why you have knowledge of the facts.
• Never volunteer information – do not give more information than is strictly necessary to answer each question, and stop talking as soon as the question is answered.
• Confer with your attorney if needed – at any time during the deposition, you have the right to speak with your attorney privately.
• Admit to any mistakes – if, at any point during the deposition, you realize you have misspoken, or given an incorrect answer, tell your attorney immediately, so that you can correct the mistake.
• No jokes – refrain from injecting humor during an answer, and don’t make any wisecracks or speak obscenities. Such things are often not recognizable as “kidding” in the deposition transcript, and could cause problems down the road.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Court Reporter – A professional stenographer who transcribes spoken testimony into written form, commonly to produce official transcripts of court proceedings and depositions.
• Discovery – The pre-trial efforts of each party to obtain information and evidence.
• Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
• Perjury – The willful telling of an untruth, or giving of false testimony, after having taken an oath.
• Subpoena – A writ issued by the court ordering a person to appear as a witness in a judicial proceeding, or requesting submission of certain evidence.