What happens during a deposition?
During a deposition, a witness answers questions under oath from opposing counsel, with a court reporter creating a word-for-word transcript that can later be used in the case, including to challenge inconsistent testimony at trial. It typically takes place outside the courtroom, often at an attorney's office, and is a core part of the discovery process rather than a trial proceeding itself.
The Basic Structure of a Deposition
A deposition brings together the witness being questioned (the deponent), attorneys for the parties, and a court reporter who transcribes everything said, and often a videographer as well. The witness is placed under oath at the outset, meaning their answers carry the same legal weight as testimony given in court.
Depositions generally follow a question-and-answer format led by the attorney who requested the deposition, with the witness's own attorney present to raise objections, though most objections are noted for the record rather than immediately resolved, since there is no judge present to rule on them in the moment.
What Attorneys Are Trying to Accomplish
Attorneys use depositions to learn what a witness knows firsthand, lock in their testimony before trial so it cannot easily change later, and assess how credible and persuasive that witness is likely to be if the case proceeds to trial.
Depositions also serve as a discovery tool to uncover documents, other witnesses, or facts that were not previously known, since witnesses are generally required to answer questions relevant to the case even if the specific information had not been requested through written discovery.
How Deposition Testimony Can Be Used Later
If a witness later testifies at trial in a way that contradicts their deposition testimony, the earlier deposition transcript can typically be used to impeach them, highlighting the inconsistency in front of the judge or jury to challenge their credibility.
In some circumstances, deposition testimony can be used in place of live testimony altogether, such as when a witness is unavailable for trial, subject to specific rules governing when and how deposition transcripts may substitute for in-person testimony.
Preparing for a Deposition
Because deposition testimony can significantly affect a case's trajectory, witnesses are typically prepared in advance by their attorney, reviewing relevant documents and discussing how to answer clearly, honestly, and without volunteering more information than the question actually asks for.
The strategic value of a deposition often extends beyond the specific answers given — how a witness performs under questioning can itself influence how each side evaluates the strength of the case and its prospects at trial, which in turn can shape settlement discussions that follow.
- Is a deposition the same as testifying at trial?
- No. A deposition takes place outside the courtroom as part of pretrial discovery, without a judge or jury present, though it is given under oath and can later be used in court, including to challenge inconsistent trial testimony.
- Can you refuse to answer a question during a deposition?
- In limited circumstances, such as questions covered by attorney-client privilege, a witness's attorney may instruct them not to answer. Outside of a valid privilege objection, witnesses are generally required to answer relevant questions.
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