Deposition

Here’s everything you must know about a deposition in lawsuits-how it is scheduled, what to expect, and how best to be prepared!

What is a Deposition in Legal Terms?

Deposition refers to a sworn testimony given by a witness outside the court. It is conducted to find out more details and information on the lawsuit and is used in court only in certain circumstances.

An essential part of the discovery process, it is typically set up by an attorney of parties involved in a lawsuit and the witness in this context is called a ‘deponent.’ This enables both parties to gather all relevant information on the case and devise the best course of action.

It must be noted that sufficient time must be given to the witness to prepare and appear for the deposition.

Can a Person Refuse a Deposition?

At times, a third party who is not tied to the case directly can be called for a deposition. In such cases, a subpoena needs to be served to make the appearance.

In such cases, refusal is unacceptable and will be considered contempt of court and met with penalties.

What are the Different Types of Depositions?

Deposition can happen via different methods and holds value throughout. Some of the common ones are:

• Written Deposition: Consists of a series of questions written out for the deponent. Written depositions are typically done by the notary public or special process server rather than in the presence of the attorney who wrote it. Usually, there are no strict timelines to complete the testimony, and ample time is given for preparing and answering the questions.
• Oral Deposition: The most popular choice for interrogating the witness, oral deposition is a face-to-face interaction that can take place in an attorney’s office or any place mutually agreed upon. This happens in the presence of a court reporter who documents the entire interaction in detail.
• Video Deposition: Here, the witness either records the testimony video or shares it during a video conference. This is then shown to the court.

In all cases, there are rules regarding how the deposition must be conducted, the questions asked, and more.

How Is A Deposition Used In The Discovery Process Of A Lawsuit?

The discovery process refers to a preliminary investigation conducted by both parties to gather all crucial information related to a case. This helps them map out the strategy for approaching the lawsuit.

The discovery process can also be the juncture where an out-of-court settlement can be reached.

Deposition helps in a discovery process as it:

• Gives the point of view of the witness and their sworn testimony
• A different point of view of the case, especially any details that could be overlooked
• Establish how the incident occurred, and the stance of the people involved
• Also gives the attorney a fair idea of what a witness who appears in court could testify about.

How Long Does a Deposition Usually Take?

The time taken for a deposition to finish can vary depending on the nature of the case, and the needs of the attorney, and the number & depth of questions prepared. However, you can expect it to range from 90 minutes to several hours.

Can a Deposition be Used as Evidence in Court?

Yes. A deposition can be used as substantive evidence in court under Rule 32 of Federal Rules of Civil Procedure, “Using Depositions in Court Proceedings.” According to this law, a part of the deposition or the entire one can be used as evidence against a party for impeachment.

How to Schedule a Deposition?

To arrange and schedule a deposition, the first step is to prepare & share a Notice of Deposition that contains all the necessary details about the deposition and the witness. The details are as follows:

• Name & contact details of the attorney
• Contact details and address of the legal firm
• Name of the deponent
• The location where the deposition is scheduled to happen
• Time & date if it has been mutually decided
• The time it may take for the deposition to wrap up, if possible, to disclose

If the witness is asked to bring any documents, they must be asked to produce it during the deposition and marked as exhibits by the court reporter.

Are There Depositions in Criminal Cases?

Generally, depositions are allowed for criminal cases in exceptional cases. The exceptions to the rule are if one is aged above 65 years of age, is not fit healthwise to give a testimony at a later stage, or is a dependent adult.

Depositions are allowed in criminal cases when the judge is convinced that a witness is unable to record their testimony during the trial.

How Much Does a Deposition Cost?

The cost of deposition is to be covered by the party who is calling upon the fitness. The price comes from the following:

• Lawyer’s fees
• Court reporter’s fees: to organize, manage, and transcript the deposition
• Costs of arranging the location for the deposition, if any

Generally, in the US, a court reporter can charge between $3-$8 for a single-page transcription. In addition, they also charge an hourly fee or a one-time, flat fee for attending the deposition. This can vary between $75-$150 hourly.

The lawyer can work for you on an hourly basis, or for the entire lawsuit. Calculating all the costs, including the lawyer’s fees, a deposition, on average, can cost $1,900 to $2,700.

What Happens After a Deposition in a Civil Lawsuit?

After a deposition concludes, the court reporter prepares the transcript and sends it to both parties. The transcript is often evaluated for inconsistencies or any mistakes. This gives the opportunity for the opposing party’s attorney to raise the witness lying under oath.

Following this, the attorney goes through the transcript and decides the next steps legally, and gives you an analysis.

At times, the deposition also gives the insight to include more witnesses or investigate specific facets of the case.

For instance, after a deposition in a personal injury lawsuit, the attorney analyses the deposition to advise if it’s better to settle outside the court or to proceed with trial if the opposing party offers a meagre settlement amount but refuses to settle the claim or denies it altogether.

How Long After a Deposition Does a Case Settle?

The timeline for a lawsuit to conclude after deposition can vary on a case-to-case basis. However, on average, you can expect it to end between 30-90 days.

Do note that it can go longer, although it is rare for the defense to offer a settlement immediately or quickly once it has reached trial.

Do I Need a Lawyer for a Deposition?

If a witness has been served to testify for a deposition, it is generally advised to get legal assistance by hiring a lawyer. Primarily to avoid any negative implications and to protect the individual’s rights.

During depositions, tricky questions can be posed and having an attorney’s help will give you the confidence to navigate this labyrinth of questions and answer truthfully and correctly.

Unlike what many believe, the attorney’s job is not during the deposition but rather to prepare everything necessary beforehand.

Having an attorney can help you in the following ways during a deposition:

• Ensuring there is no information available publicly that can be used explicitly against you in the lawsuit
• Guide and prepare you well for the deposition. How you say the answers are equally important as what you say
• The interactions in a deposition are sworn testimony. If your answers are found to be untrue at any given point in time, charges of perjury can be levied upon you. An attorney can help you sift through the information to avoid giving any factually incorrect answers.

What Should You Not Say During a Deposition?

Deposition can be tricky. It is always a relief to get legal assistance if you have been ordered to testify in one. Some of the questions thrown at you can be curveballs that are meant to throw you off balance. Here are some things you can do the ensure a smooth experience.

• Answer questions one at a time. Don’t alter answers anticipating the next round of questions.
• Do not lie. Answer truthfully.
• Answer Yes or No only if the question is posed explicitly in the manner.
• Don’t speculate or guess. It is better to answer that you don’t know or remember a detail instead.
• Don’t get agitated, and it’s best not to argue with the attorney. Your behavior in court counts.
• Refrain from offering extra information. It’s best to answer to the point.
• Speak optimally. Saying a lot or not talking at all affects adversely.
• Take your time to analyze and answer the question. Remain calm.
• If you are overwhelmed, request a break to gather yourself.

Should I Answer Every Question in a Deposition?

The attorney holds the right to ask you any question they find advantageous to the lawsuit. However, you don’t need to answer all of them. In particular, private information, privileged information, and irrelevant information.

• Private: Any questions on a person’s health, sexuality, or religious beliefs
• Privileged: Any confidential conversations. For instance, between a doctor and a patient, a lawyer and their clients, or a confession to a priest.
• Irrelevant: Any question that does not impact the lawsuit or may not positively impact the case.

However, there are exceptions to this. If the judge deems the question to be pertinent to the case, they can compel the answer to the question. For instance, sexuality is crucial in a case of a sexual offense or assault.

What Should I Wear to a Deposition?

As a rule of thumb, it is directed to wear formal clothing to a deposition.

• For men, a business suit or slacks are preferred with a tie. Avoid casual like jeans, t-shirts, and sandals.
• For women, it is best to wear long pants, dress shoes, or any conservative formal wear. Avoid any tight clothing or flashy accessories.

Your attorney can help with more details about what clothes to wear if needed.

 

Written by Aaron R. Winston
Last Updated: April 9, 2023 8:48pm CDT