Deposition FAQs

Are Depositions Mandatory?

Do You Have to Participate In a Deposition?

After getting into a car accident and having a trial scheduled, I wondered if there would be a deposition. I decided to research whether or not depositions are mandatory for any witnesses. I dug deep to find the answers and consulted a few lawyers in the process.

So, are depositions mandatory? In short, yes. A deposition is an out-of-court statement given under oath by any person involved in the case. It may be in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party or any other witness. Depositions are part of the discovery phase when preparing for a trial. This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.

There should be no shocking surprises in a courtroom due to the procedural steps put into place to ensure a fair and transparent trial.

What Is a Deposition?

So, what is a deposition? A deposition is a sworn, out-of-court testimony given by a witness in a lawsuit. Witnesses will be under oath, just as if they are in a courtroom. Depositions enable a party to know in advance what a witness will say at the trial. 

Some people get depositions and subpoenas confused. A subpoena is a formal document that orders a named individual to appear in court at a fixed time to give testimony. In the unfortunate event that the witness is unwilling to participate in the deposition or is unrelated to a party involved, the courts will have to issue a subpoena.

If you receive a subpoena to provide a deposition, then yes, you are legally required to participate. Refusing to oblige to the legal order will, unfortunately, cause legal consequences.

Reasons For a Deposition

Parties may require depositions before trial for several reasons, depending on the exact nature of the lawsuit:

  • Gain Information: Parties may potentially gain new information that could be relevant to the case.
  • Records Testimony: There are often times that a witness may not be able to make the trial due to health reasons. A recorded deposition ensures that witness testimony will still be accessible.
  • Hold Witness Accountable: A deposition secures witness testimony and acts as an accountability measure in case they change their story during trial.
  • Recalling of Details: Trial proceedings may take months if not years to commence. Depositions usually occur early on in the process and allow the witness to recall details while the information is still fresh in their minds.

What Happens During a Deposition?

Are Depositions Mandatory?Each side is entitled to take one deposition in a limited jurisdiction case. During the deposition, attorneys will direct a series of questions toward the witnesses. The responses will then be recorded in writing.

Usually, witnesses asked to participate in a deposition are key witnesses in the lawsuit and connected to one of the parties involved in the lawsuit.

Depositions consist of an oral examination, followed by a cross-examination by the opposing side. In addition to taking depositions, either party may submit written questions, called interrogatories, to the other party and require that they be answered in writing under oath.

If one party chooses to use an interrogatory, written questions are sent to the lawyer representing the other side, and that party has a period of time in which to answer.

What is the Discovery Phase in a Civil Case?

A deposition is part of the discovery phase in a civil case. Discovery is the pre-trial phase in a lawsuit in which each party involved investigates the facts of a case through rules of civil procedure. This occurs by obtaining evidence from the opposing party and others, which can happen by requesting answers to interrogatories, requests for production of documents and things, requests for admissions and depositions.

How to Prepare For a Deposition As a Witness

As your legal representation, your attorney should be present during any deposition you are required to take part in. This is to protect your interests, as the opposite legal team may word questions oddly or inappropriately that may cause you to answer incorrectly.

Tips for a Successful Deposition

There are some simple, general principles you should follow during the deposition process:

  • There is no need to rush your answer. Depositions are not under a time limit. Listen carefully to each question and pause before answering. If a question is vague or confusing, ask for clarification.
  • If the opposing attorney is acting unprofessional, point out the inappropriate behavior on the record.
  • Do not give additional information if it’s not necessary to answer the question to its core. Doing so could harm you. Yes or no is often times the best answer, and it’s perfectly fine to answer with one word.
  • Always tell the truth. You are under oath, and if you falsify an answer, you could be charged with perjury later.
  • Never guess, only give information that you absolutely know. If you are unsure of an answer, it’s reasonable to say “I don’t know” because that is the truth.
  • Anything you bring to the deposition needs to be reviewed and approved by your attorney beforehand. Remember, they are your counsel and have your best interests in mind.
  • If your attorney objects to a question, be wary of answering that question. They are objecting for a reason, and it’s probably because it poses a risk to you.
  • Lawyers may phrase a statement with a preceding comment that is factually untrue or with a fact that is in dispute; do not let this pass without comment. Similarly, do not accept attorneys paraphrasing your responses unless they are accurate.
  • Don’t confuse pleasant conversation with opposing counsel as friendly banter. Don’t joke or discuss anything with the opposing attorneys outside the confines of the deposition.

Dos & Don’ts of a Deposition

Deposition testimony is a stressful but important process during the discovery phase of a lawsuit. It is important to understand the dos and don’ts of a deposition:

  • Always tell the truth.
  • Actively listen to questions, and pause before answering.
  • Keep your cool; never lose composure.
  • Answer only the question asked.
  • Stop speaking and listen carefully if your attorney makes an objection.
  • Avoid long narratives, and don’t volunteer information.
  • Don’t speculate or guess.
  • Avoid absolutes such as ‘never’ or ‘always’.
  • Avoid jokes, sarcasm, and edgy comments.
  • Ask for breaks if needed to keep from becoming inattentive.
  • Carefully examine documents, reports, etc. before answering opposing counsel’s questions about them.
  • Ask for clarification of confusing questions.
  • Remember that nothing is ‘off the record’.
  • Don’t waive your right to read and sign the deposition transcript.

Related Questions

How long does the discovery phase of a trial last? The discovery phase of a trial can last several months to even years, depending on the exact nature of the case, who is involved, and how much evidence needs to be obtained for the trial.

Can a settlement be made at a deposition? The amount of time that it takes to conclude negotiations and get your settlement varies. Sometimes it is agreed upon quickly and is just a matter of signing papers. In some situations, negotiations break down because there is no middle ground to settle on. Sometimes they are put on hold for medical examinations or treatments to finish.