If you're involved in a civil lawsuit, there's a good chance that depositions will be held and that you will be required to testify at a deposition. But what is a deposition, what happens during a deposition, and what should you expect if you are required to testify at a deposition?
A deposition is part of the discovery process, through which parties to litigation can learn about each others' cases and what testimony and evidence they should anticipate at trial. A party to the lawsuit will schedule a deposition, at which a witness may be questioned under oath.
Use of Deposition Testimony
By conducting a deposition testimony, a party will get a witness's testimony placed on the record, and thereby get a good sense of what the witness's testimony will be at any later hearing or trial, as well as making it difficult for the witness to offer testimony that is significantly different than the testimony presented at deposition.
In some contexts, such as when a witness is seriously ill, a witness's testimony may be preserved through a deposition for use at later court proceedings. Although most states significantly restrict the taking of depositions in criminal cases, a common exception exists for taking the testimony of a witness who may be medically unable to testify at trial or may pass away before trial.
Types of Deposition
For most witnesses, the deposition process involves an oral deposition: The witness appears at a designated time and location to provide sworn testimony before a court reporter, such that a written transcript of their testimony may be prepared for use in later court proceedings or at trial.
In some cases, an oral deposition will be taken over a distance. If a witness who is not available to testify locally, sometimes a deposition will be taken by telephone or through videoconferencing technology.
Common variations on the oral deposition include:
- Video Depositions: The deposition is recorded on video, so that the witness's testimony may be presented at a later time;
- Trial Depositions (de bene esse depositions): The witness's testimony may be submitted to the court as if the testimony were presented in court. Trial depositions are often used in contexts in which an important witness may be unavailable at trial. Trial depositions are normally held by agreement of the parties or by order of the trial court;
- Records Depositions: The deposition involves compiling records along with a brief sworn statement from the custodian of the records. This type of deposition is typically conducted by a specialized service without the presence of either the parties or their attorneys, for such purposes as obtaining a party's medical records or employment records.
- Depositions on Written Questions: A party may schedule a deposition for which the witness is presented in advance with a list of questions that will be asked at the deposition. No other questions are permitted.
It is possible for a trial deposition or deposition on written questions to be recorded on video.
A witness to a deposition (the deponent) will either agree to appear for the deposition, or will be subpoenaed to appear. The deposition will often be held at a court reporter's office or at a law office, but may occur in other locations such as a conference room or available jury room at the courthouse. Judges are not present during depositions.
A court reporter is present at the deposition, and the witness is sworn in at the beginning of the deposition. Testimony is taken under oath and the intentional making of false statements may potentially be treated as perjury.
All parties to a lawsuit may attend a deposition, along with their attorneys. If the witness called to testify at the deposition is not a party, the witness may bring a lawyer to the deposition. In theory, other witnesses could appear at and observe a deposition, but as depositions are normally held on private property or other areas not open to the general public witnesses may normally be excluded by the party that scheduled the deposition.
The deponent is questioned by the parties to the lawsuit, normally through the parties' attorneys. The process is similar to courtroom testimony, except that many objections that might require a ruling at trial are instead made on the record, with the witness answering the question despite the objection.
Exhibits may be presented at deposition, and may be made part of the record of the deposition.
If you are a party to a deposition, your lawyer will likely instruct you about what to expect at a deposition, how to behave, and how to properly answer questions. If you are not a party, you may not receive much in the way of instruction or preparation for a deposition.
Rules of thumb for being an effective witness at a deposition include:
- Maintain Your Composure: Remain calm in your demeanor and body language.
- Answer Only the Question Asked: Listen carefully to the question, answer only that precise question, then stop talking.
- Give Simple Answers: Don't give a lengthy or complicated answer where a short, simple answer is sufficient.
- Don't Be Afraid to Say "I Don't Know": If you don't know the answer to a question, "I don't know" or "I can't remember" are appropriate answers. Don't guess or speculate.
- Don't Answer Questions You Don't Understand: If a question is confusing, ask that it be rephrased or repeated before you attempt to provide an answer.
- Don't Be Afraid of Silence: When you have finished answering a question, sit quietly for the next question. Don't feel obligated to fill the silence by volunteering additional testimony.
- Don't Look to Your Lawyer for Answers: You should not expect your lawyer to prompt you as to how to answer a question, and should avoid giving any impression that you're seeking a cue from your lawyer.
- Be Truthful: Testify truthfully.
While some depositions are short, many continue for hours and some continue for days. If you require a break during a deposition, whether it's a bathroom break, to get a drink of water, or a moment to regain your composure or clear your head, you may ask for a break.
Why Isn't Your Lawyer Objecting
The rules for making objections during a deposition are different from the rules at trial, and many objections that may be made at trial are either not made during a deposition or are only made for the benefit of the record, meaning that the witness is expected to answer the question despite the objection.
What most concerns people who are testifying at depositions is that sometimes the opposing counsel behaves inappropriately, or asks inappropriate questions during the deposition, while their own lawyer remains silent. They wonder why their lawyer isn't trying to stop opposing counsel's bullying behavior or limit the line of questioning.
In many cases, even though an objection might be made, your lawyer may conclude that it's best to let the questioning continue unless the other lawyer's antics reach the point where they justify calling off the deposition, with the risk of sanctions and other consequences if the court finds that action to be unjustified. Lawyers who bully deponents may respond to objections with belligerence or argument. Your lawyer may make the determination that the fastest and easiest way to get through the deposition is to simply allow a dubious line of questioning to proceed.
Mistakes in Your Testimony
If you make a mistake in your testimony at a deposition, inform your lawyer as soon as you realize that you made a mistake or misstatement. Your lawyer can then address the mistake. It's understood that our memories are imperfect and that, as a result, honest mistakes can and will occur. By informing your lawyer, you minimize the chance that an honest mistake will significantly affect your case.
The rules governing objections at deposition are different from the rules that apply at a court hearing or trial. Most objections are made "for the record", and may be ruled upon by a court at a later date if a party wants to introduce the deponent's answer in a later court proceeding.
Objections that may be raised at deposition, and which must be addressed prior to the deponent's answering a question, include:
- Privilege: If a party intends to later claim that the answer to a question involves privilege, such as attorney-client privilege or doctor-patient privilege, that party must object on the record at the deposition. The party asserting privilege may instruct a witness not to answer a question, subject to a later ruling by a court.
- Form of the Question: An attorney may object that a question is not in proper form. For example, a question may be confusing, compound (more than one question asked at once), or call for speculation on the part of the deponent. The attorney asking the question may rephrase the question, sometimes following discussion between counsel. If no objection is made to the form of a question, the objection is deemed waived and cannot later be raised in relation to the question or answer.
- Mischaracterization of Prior Testimony: If a question misstates the prior testimony of the deponent, an objection may be made in order to ensure that the record is clear.
- Asked and Answered: If a deponent is asked a question that was previously answered during the deposition, by the same opposing lawyer, an objection may be made on the basis that the question was previously answered.
- Harassment: Sometimes a deponent will be asked questions that are not relevant to the proceeding, in an effort to harass, intimidate or embarrass the deponent. An attorney may make a record of the harassment by opposing counsel, and in appropriate circumstances may terminate the deposition due to continued harassment.
- Calls for a Conclusion of Law: Most witnesses are called to testify as to their recollection of the facts relevant to a case. Most witnesses are not qualified to make legal conclusions, and with rare exceptions it is improper to ask a deponent to make a conclusion of law; that is, to state an opinion as to how the law applies to the facts of the case.
The following objections, even if made at a deposition, are not a basis to prevent the witness from answering the question asked:
- Hearsay: Although it is normally inappropriate at trial for an attorney to object to inquire about out-of-court statements in order to demonstrate the truth of those statements (the hearsay rule), deponents may be asked about out-of-court statements.
- Relevance: Even if of questionable relevance to a legal case, as long as there is a chance that the answer may lead to the discovery of relevant evidence, witnesses are normally required to answer questions asked.
- Assumes Facts Not in Evidence: While at trial it is important to lay a foundation for questions asked, at deposition an attorney may ask about matters that are not yet part of or supported by the record.
- Calls for an Opinion: At trial, lay witnesses are restricted in their ability to state opinions based upon the evidence. However, a deponent may be asked to share opinions as well as the thought process through which they formed their opinions.
Few rules are entirely hard-and-fast. For example, although relevance is not normally a proper objection, there may be circumstances in which a question is so far afield that the objection is nonetheless made, or where the subject matter of the question suggests that the goal is to harass or intimidate the witness.
One form of objection that is improper at a deposition is the speaking objection, through which an attorney will make statements that are intended to prompt or instruct a witness as to how a question should be answered.
When a party is instructed not to answer a question at a deposition, the other party may seek a ruling from the court as to whether the objection was improper. If the court finds that the objection was not proper, the court may order remedies such as the award of monetary sanctions, or an order that the deponent appear to continue the deposition and to answer the question under oath. If a party breaks off a deposition due to alleged misconduct by another party, a court may similarly impose consequences on a party found to have wrongly ended the deposition, or may sanction the party that it has found to have abused the deposition process.