Summary
- A deposition is when a witness gives sworn testimony outside of court
- It’s used in the discovery phase to help both sides understand the case
- If you are deposed, an attorney can help protect your rights
When you think of giving testimony under oath, you might picture a witness in a courtroom. Many civil and criminal cases involve testifying in court, but lawyers don’t always have to wait for a trial to question a witness.
Instead, they can conduct a deposition, which is a formal interview where a witness (or sometimes a party to a lawsuit) gives sworn testimony. Attorneys for both sides can use these interviews to gain a better understanding of how to move forward with a legal case. But what is a deposition used for, exactly? Here’s a closer look.
Deposition Definition
What is a deposition in law? Every legal case has a “discovery” phase where both sides uncover and share evidence. A deposition is a discovery tool that lets both sides evaluate testimony under oath.
What Is the Purpose of a Deposition?
What is deposition testimony used for? Often, depositions are more integral to a case than many realize. These are two of their key purposes:
Giving Both Sides a More Complete Picture of the Case
In many instances, a deposition helps paint a clearer picture of the events surrounding the legal case at hand. For example, personal injury lawsuits often involve conflicting accounts of what happened. The plaintiff (or the defendant) may call witnesses to the accident, and each side will have the opportunity to question the other’s witnesses.
Getting this kind of complete picture is especially important in cases involving testimony from expert witnesses. For instance, if the lawyer for a plaintiff in a personal injury case is seeking substantial compensation for pain and suffering, they will usually call medical or economic expert witnesses to explain why what they’re asking for is reasonable.
When questioning the expert witnesses, attorneys for the defendant will be able to better understand the plaintiff’s case. They can also evaluate how strong their evidence is.
Allowing Both Sides to See How a Witness May Fare During Trial
Without a deposition, an attorney wouldn’t know how their witnesses handle cross-examination until the trial is underway. A deposition can be a kind of cross-examination test run. Depending on the results, it may make an attorney reconsider their strategy.
For instance, imagine an attorney for the plaintiff in a car accident lawsuit is determined to take the case all the way to trial because they have a reputable expert witness. However, at the deposition, lawyers for the at-fault driver’s insurance company are able to highlight errors and inconsistencies in the expert witness’s testimony.
The plaintiff’s lawyer begins to see there’s a very real chance of losing at trial. This might lead them to offer a settlement instead.
Where Do Depositions Take Place?
Depositions are formal proceedings but not as formal as court hearings. They usually happen in law offices. Court reporters will record everything said in a deposition, and in some cases, it will be videotaped as well.
How Does Deposition Work?
Here’s a rundown of what happens in a deposition:
- The deponent (person being deposed) is sworn in by the court reporter.
- Attorneys or the opposing side ask questions of the deponent.
- The deponent’s lawyer may object to questions.
- No judge is present, so a judge can make rulings on objections at a later time.
Depending on the complexity of the case, depositions can be lengthy. Depositions are usually limited to a total of seven hours, but on average, they last about two to four hours.
Is a Deposition Mandatory?
In most cases, deposition is mandatory. However, there are a couple of exceptions:
Attending Would Cause an Undue Burden
If attending the deposition could impose an unfair burden on you, you may be able to be exempted. For example, perhaps you are a single parent on a very low income, and missing work for the deposition would seriously damage your finances. In such a case, you might be able to be excused. However, this exemption requires a court order.
Attending Puts You at Significant Risk
You also might be able to be exempted if going to the deposition would endanger your health or safety. For instance, if you are recovering from heart surgery and your doctor has ordered you to stay home and rest, you may not be required to attend.
Even if you legally need to attend the deposition, you may not have to answer every question, such as in one of these situations:
- You may exercise your Fifth Amendment rights and decline to answer questions when the answers could incriminate you.
- You may refuse to answer questions protected by attorney-client privilege.
- You may refuse to answer questions that are irrelevant to the deposition.
- You may refuse to answer questions meant to harass you.
Failing to show up for a deposition without being properly excused—or failing to answer questions you are required to answer—can lead to serious consequences. You are not required to have an attorney if you are called as a witness, but having one with you is the best way to ensure your rights are protected.
Need a Deposition Attorney?
Many people who are deposed are tempted to attend the deposition without an attorney. However, if at all possible, you should make an effort to have an attorney with you. Your lawyer can help you understand the process, defend your rights and offer legal guidance if needed.
Not sure how to find a litigation lawyer? ConsumerShield can help. We understand the importance of quality legal representation and know how difficult it can be to find a good attorney. That’s why we match people like you with capable, vetted lawyers in your area who can meet your needs. Fill out our contact form for a free case review today.
