What’s a deposition?

A deposition is a legal proceeding in which a person, the “deponent,” is questioned by the other parties in the case or those parties’ attorneys. A deponent can be a party to the action or a non-party witness or non-party expert. Although a deposition is a legal proceeding it is not held in a courtroom, but rather a location specified by the party taking the deposition, usually an attorney’s or court reporter’s office.

Depositions are considered to be less formal than a court appearance but a court reporter will stenographically record the event as in most court appearances. It is therefore advisable that you dress at least business casual. During deposition the deponent will be questioned by the attorneys or parties (if a party is unrepresented) usually starting with the party who scheduled the deposition.

After you are sworn in by the court reporter, everything spoken will be on the record unless you are told otherwise. An attorney should then give you what is called “admonitions.” A typical set of admonitions may be the following.

1) You will be told that your responses are under penalty of perjury just as if you had been sworn in to testify at trial.

2) You will be told the deposition will be recorded by the court reporter who will reproduce them in a booklet for you to review and make changes to, if necessary.

3) You will be told to wait until a question is completed before you answer.

4) You will be told the difference between a guess and an estimate.

5) You will be told to only give verbal responses that are complete words.

6) You will be asked if you are under the influence of any substance that might impair your ability to give a deposition.

It is important to note that a deposition is on the record so anything you say during it can be used against you at trial. Although an attorney can object to a question asked, usually they will only instruct you not to answer if they feel confident that a judge will agree with their objection. If you are a party to a lawsuit and your deposition has been scheduled, your attorney should set up a time to prepare you for it so that you don’t inadvertently harm your case with your testimony.

What you are asked will depend on the type of lawsuit, but will often be similar to questions asked in written discovery and include your personal information and history, how the accident happened, any medical treatment you’ve undergone following the accident (assuming a personal injury case) and so forth.

Very often, the attorney questioning you already has many of the answers to their questions, but they may want to see how credible and sympathetic you appear to be. Further, they may want to see if they can trip you up by asking you questions you have already answered to see if you can stay consistent. Finally, with a deposition they will have something to use at trial if your answers change without a valid reason, or if you say something differently when you are giving trial testimony.

You should always consult with an attorney prior to giving a deposition, especially if you are a party to the lawsuit as your responses have the potential to greatly alter the case.