Javascript is disabled. Please enable Javascript to log in.
Published: 2008-03-26

What is a Deposition?

News accounts of some recent high profile cases have reported the taking of a deposition of a witness. What does that mean? Just what is a deposition?

When a lawsuit is instituted, the parties have the right to conduct discovery (formal investigation) to find out more about the case. Discovery can be done in a number of different ways. Requests for documents, interrogatories (written questions), and depositions are the most common ways. These methods allow the parties to find out what the facts are and what each witness knows.

A deposition is the taking of an oral statement of a witness under oath, before trial. It 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 at trial. Contrary to what you see in the movies, 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 will say during testimony.

A deposition does not involve only favorable testimony. If a witness' testimony will be damaging to your case, you will need to know about it before trial. The last thing you want is to be surprised at trial with the damaging testimony. Therefore, it is usually wise to take that witness' deposition so that you will know in advance what that witness will say.

A deposition does not take place in court. Instead, it usually takes place at an attorney's office. The attorney will ask the witness, or deponent, a series of questions about facts related to the lawsuit. The rules allow some latitude in the areas that can be inquired into. The deponent must answer all proper questions under oath. The deponent does not ask any questions. He or she only answers questions.

The entire deposition is preserved word-for-word by a court reporter, who is present throughout the session. A transcript is produced at a later time. The deponent can have his or her attorney present at the deposition, and the parties to the case can also be present. Judges are not present at depositions, except in special cases. You may recall that the trial judge was present at one of Bill Clinton's depositions to rule on problems that arose.

A deposition can be videotaped. This is usually done when the deponent is very ill and may not be well enough for trial. It can also be done if the deponent will be out-of-town or unavailable during trial.

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. What is said at a deposition is very important. The deponent should listen to the questions carefully and be precise in his or her answers. Remember, the deponent is under oath. There are consequences for false statements made under oath.

Not every case needs to have depositions taken. It depends on the facts and issues. Cases that involve only legal issues usually do not require depositions. In many lawsuits, however, depositions play an important role. If you are ever involved in a lawsuit, be sure to familiarize yourself with the mechanics of depositions.