Deposition Before Trial

Are Depositions Required Before Trial?

What You Need to Know About Depositions Before Trial

I recently watched the Your Honor on Showtime, a riveting series starring Breaking Bad’s Bryan Cranston. Cranston is cast as a judge who has to confront his deepest convictions when his son is involved in a hit and run that affects an organized crime family in New Orleans. The majority of the show focuses on courtroom scenes, oftentimes including the most pulse-pounding moments of the show. As many a courtroom show, many surprise witnesses were called to the stand, definitely raising the stakes, and a deposition wasn’t included on the show. I got to wondering if this rings true in real life, and if courtrooms are really taken aback by surprise witnesses or crazy turn of events by testimony at the stand.

So, are depositions required before trial? In a very basic nutshell, yes. 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. 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 of any other witness.

Unlike Hollywood likes to portray courtrooms as having surprise witness testimony and shocking revelations, this does not happen in real life 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. Sorry, Law and Order, no surprise testimony in the real world. Parties may require depositions before trial for a number of reasons, depending on the exact nature of the lawsuit:

  • Gain Information: By questioning a sworn witness, parties may potentially gain new information that could be relevant to the case.
  • Hold Witness Accountable: A deposition secures witness testimony and acts as an accountability measure in case they change their story during trial. These depositions are recorded, and since the witnesses are under oath, these are taken as official statements.
  • 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 despite unforeseen circumstances.
  • 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 intimate details while the information is still relatively fresh in their minds.


During the deposition, attorneys will direct a series of questions toward the witnesses. The witnesses will be asked to respond to every question. 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.

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. A subpoena is a legal document that requires a witness to provide testimony at a given time and place.

According to the American Bar Association, depositions consist of an oral examination, followed by 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.

How To Prepare For a Deposition As a Witness

A deposition before trial holds incredible weight, so much so that they may be entered into evidence during the trial and could even discredit your credibility if your trial testimony differs from your statement given during the deposition. Therefore, it is of the utmost importance to adequately prepare for a deposition, displaying a professional demeanor during the questioning from the attorney team.

Especially if you are the defendant in a lawsuit, you should absolutely meet with your legal team prior to the deposition taking place to discuss the overall process and prepare for questioning. The important facts of the case need to be discussed and determined, and if records are pertinent to the questioning (such as medical records), then those records need to be viewed by you prior to the deposition.

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. It is important that you know your rights during a deposition.

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 oftentimes 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. Yikes.
  • 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.


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

What Is The Discovery 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.

In addition to depositions, those involved in the lawsuit may request the following:

Request for Admissions

This asks another party to admit or deny certain carefully worded questions under oath. If admitted, the statement is then considered true for all purposes within the current trial.


Interrogatories, on the other hand, just ask open-ended questions. These can become quite complex with multiple parts, so most states limit the number of interrogatories in a single trial.

Requests for Production

This allows one party to ask the other to provide documents or other tangible evidence, including electronically stored information to be used in the trial.

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.

Do you legally have to give a deposition? 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.

Can a settlement be made at a deposition? Yes. After a deposition takes place, the attorneys may find that the transcripts and other evidence from the discovery period show that a client may be harmed if the case goes to trial. Therefore, the legal teams may push for a settlement to prevent the lawsuit from going to trial.

Matt McWilliams

Deposition Academy is an online website created to guide those in the legal videographer industry or those interested in starting a legal videography business. The site has expanded to cover a variety of legal topics that are related to depositions and the deposition process. Our team of writers have written for a variety of legal blogs and website.