What Is a Deposition?

by Team eLocal
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Before civil cases make it to court, attorneys perform depositions to get witness statements. The information gathered in a deposition helps a lawyer determine whether it’s in their client’s best interest to continue with a lawsuit or settle out of court. You could be called to testify in a deposition if you witnessed an accident, for example.

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This guide reviews everything you need to know about depositions.

What Is a Deposition?

The deposition process prepares witness testimony before taking a case before a judge or jury. Depositions are held in the presence of a court reporter. This official makes sure everyone knows the rules of civil procedure and swears an oath to give accurate and truthful answers.

In cases with witnesses, a deposition is part of the discovery process. Discovery is how lawyers determine the facts of a case and decide whether to take the step of filing a lawsuit against someone for their actions. There may be multiple lawyers present at a deposition who represent each party to the lawsuit and the witnesses being deposed.

What Happens During a Deposition?

After swearing an oath to speak truthfully, witnesses in a deposition need to answer a series of questions one of the attorneys asks them. The first series of questions is called the direct examination. After direct examination, the opposing attorney can ask their own questions. Those questions are considered cross-examination.

If the first attorney wants to ask additional questions, they may move to redirect before the other attorney can recross. Every lawyer may object to questions they don’t think are relevant or legal, and the court decides whether the witness is still required to answer. The court reporter’s job is to record responses during this back-and-forth and give the transcripts to each attorney after the deposition is over.

Do I Need a Lawyer for a Deposition?

If you’ve been called as a witness to a deposition and aren’t directly impacted by the result of the trial, you may not think you can or should have an attorney. The things you say during a deposition can have legal implications, so it’s a good idea to speak with a lawyer before the deposition. Your lawyer can prepare you for the proceeding, let you know what types of questions you may be asked and tell you what to do if your answers could be used against you.

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What to Do During a Deposition

If you’ve consulted an attorney before your deposition, they probably asked you to prepare ahead of time and gave you some legal advice. Some of the things you should remember during your deposition include:

1. How to Answer the Questions

Lawyers aren’t allowed to coach witnesses, but it’s legal for them to prepare you ahead of time with sample questions. When you’re answering questions before a court reporter, remember that everything you’re saying will be transcribed and kept in the court records. The biggest mistake you can make is to perjure yourself.

When you answer the questions, make sure your answers are direct and truthful, so your honesty can’t be called into question later. One way to avoid unintentionally answering questions in a dubious manner is to keep your answers as short as possible.

2. Review All the Court Documents Prior to the Deposition

Your attorney should have an outline of what’s covered during the deposition, including any evidence or documents you need to review. Be prepared to review and answer direct questions about these documents while under oath. Reading them beforehand ensures you’re not surprised during the proceeding.

3. Admit When You Don’t Understand Something

If you’re given an exhibit you haven't seen or didn't know about, it’s okay to ask for extra time to review it. It’s also okay to answer that you haven't seen the document or exhibit or that you’d like the question rephrased. Once again: Only answer the question the lawyer asks and nothing more.

4. Don’t Lose Your Cool

Each state has different rules, but most depositions last a maximum of 7 hours, including an hour lunch break. You might be asked difficult questions and get worn-out by the process. It’s important not to get too anxious, especially if you feel your answers could hurt your case.

State the facts as you know them, and don’t attempt to defend your actions or apologize for anything. Doing so could be interpreted as admitting guilt. When each party to the lawsuit has contradicting claims, acting defensively doesn’t make you look good.

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