A deposition is a device commonly used in the “discovery” phase of a lawsuit, before trial. All parties in a lawsuit, through their attorneys, have a period of time after a suit is filed in which to discover facts about a case in order to prepare for trial. Depositions and interrogatories (questions to be answered in writing under oath) are two of the most commonly used.
Depositions are necessary because they give the attorneys on each side of a lawsuit want to get the testimony of the key players in the case pinned down onto a written transcript. In addition to documents related to the lawsuit, these transcripts from the depositions can play a big role in the lawsuit.
Information gathered during the deposition will be used at trial if the lawsuit proceeds to that point.
Depositions are not the trial, even though they may be used at trial. Depositions are informal proceedings, usually taken in an attorney’s office. The judge is not present. There are attorneys from both sides, the witness, who is called the deponent, and a court reporter to take down the testimony. The opposing attorney deposes the witness.
The opposing attorney wants to get the witness to commit to a particular story about the case and will explore all of the factual details of the story with that witness. That way, the witness will be unlikely to change the story later at trial, and if it does change, the lawyer can point it out by “impeaching” the witness with his or her prior deposition testimony.
We remind clients that everything they say will be used against them, and it is the opposing attorney’s purpose to get you to say something that will hurt our case. Your deposition is not for your benefit; it is for the benefit of the other side.
Your attorney is there to protect you from improper questioning.
The deposition usually lasts two to six hours and sometimes less. The scope of questions is unlimited, and attorneys have the right to ask broad questions on topics that may seem irrelevant.
Many topics are covered in depositions that will never be admissible at trial. However, the witness must answer all questions unless their attorney instructs them not to answer.