28 Feb What to Expect in a Legal Deposition: Complete Guide
What to expect during and after a legal deposition
You’ve been asked to give a deposition and now you’re panicking. What will happen at the meeting? Who will be there? What’s going to happen to me, specifically, afterward? The questions are endless, and that’s completely understandable. Most people don’t need to know what happens before a trial. It’s understandable if you’re freaking out. Don’t worry. Deposition Academy has you covered.
First of all, a deposition is an out of court meeting to take your statement, or testimony, under penalty of perjury, about events that happened which may affect a potential trial. Emphasis on potential. It’s a chance to tell the event from your perspective and let your voice be heard.
A deposition can also be called Examination Before Trial in some states or Examination for Discovery in Canada. It’s typically done during the discovery process (gathering evidence) of litigation (filing a lawsuit) which happens before a dispute goes to court. A statement is rarely taken during a trial. Deposition Academy has a great article about how to prepare for a deposition as a defendant right here.
So then, what should you expect when you go to a deposition in person?
- You (the deponent) sits down with the lawyer (the litigator) to give your sworn testimony (witness statement).
- People that will most likely be there:
- anyone involved in the case (like the opposition lawyers)
- someone qualified to administer oaths (this is usually the court reporter (who is also known as the court stenographer, stenotype operator, shorthand reporter, or law reporter) or a notary public)
- the court reporter and/or a videographer
- Customarily, the meeting place is one of the lawyers’ offices, but a deposition can be done anywhere; like your workplace or a coffee shop.
- The lawyer(s) asks you questions about your side of the case.
- Your testimony is recorded by the court reporter and/or videographer.
- Both sides’ lawyers review your statement. They determine if it can be used as evidence to petition for a settlement or during a trial.
There are many different kinds of depositions, and they are almost always done in person. The actual civil procedure of making a case varies from state to state and, if you’re interested in the minutiae of the civil process in your state of interest, you can read more about it here.
Most states follow the Federal Rules of Civil Procedure. I’m sure you’re more interested in what happens to you during and after the deposition than how lawyers follow the letter of the law though.
How long does a deposition typically take?
According to the Federal Rules of Civil Procedure, a deposition is not allowed to take longer than seven hours in one day. This time limit can be different in your state.
Now, that’s not to say it will take seven hours, but be prepared for a whole day event. When a lawyer expects that the deposition will take longer than seven hours, they are required to ask you for another day to finish questioning.
Talk to the probate lawyer before the deposition to make sure you bring any documentation you need to support your testimony. This includes receipts, copies of emails, etc. Copies will be made by the lawyer or court reporter in case your testimony is used to take legal action.
What questions should you expect?
You’ll be asked questions about everything that happened and about everything that led up to it. This includes your job duties and experience, general knowledge about your profession, what you did that day and its effects on the situation, among others.
Take some notes and make a timeline accounting for everything that happened that day starting from when you got up. Include where you went, what you did or saw, even what you ate that day. No detail is too small for a deposition. Especially when that detail might be the key bit of evidence to break an argument or encourage a settlement.
Some typical questions are:
- What is your full name, and addresses for work and home?
- Did you do anything to prepare for this deposition?
- What do you remember about this case without looking at records?
- Relate to us the history you have with the client.
Remember, a deposition is a question and answer session to accurately record facts. It is better to say “I don’t know” or “I’m not sure” than it is to make a guess. Be honest with the lawyers, but don’t make casual comments that can be misinterpreted.
It’s a good habit to take a breath and pause before you answer each question. This gives you a second to understand what exactly is being asked, and a chance to ask for clarification. Nods and gestures cannot be recorded by the court reporter, so practice your answers at home.
What can happen during questioning?
Anyone that is involved in the case has the right to be there and ask questions at the deposition. The lawyer that requested the deposition opens the meeting and begins asking questions. This is called “direct examination.” When the opposition lawyers are present and ask questions, it’s called the “cross-examination.”
Sometimes litigants try to get a rise from a witness or ask leading questions and tempers run high. Talk to your lawyer before the deposition and have some answers prepared to avoid saying anything false or misleading in the heat of the moment. Also, tell your lawyer beforehand if there is any damaging information in your testimony. They can help you prepare a statement so you aren’t caught off-guard.
What happens to your testimony?
After the deposition, the transcript is notated with page and line numbers, and all the case information. It is then compiled into a hard copy booklet that will be provided to you and any other party involved that wants to purchase it. Videotaped depositions will be time-stamped. If your statement can be used as evidence in court, the transcript will be referenced by page and line number or timestamp during the trial.
Will YOU need to do anything afterward?
Most depositions end up falling under the hearsay law. Essentially, it says that depositions cannot be used as evidence in a trial. Because of this, most people that give witness statements don’t need to do anything else. The deposition just sits in the lawyer’s office collecting dust. However, there are some common exceptions that allow your deposition to be used in court:
- The deponent says something in a deposition that is against their best interests.
- A witness’s testimony at trial contradicts their deposition.
- The witness is unavailable to go to the trial because of distance, serious illness, or death.
Again, your state’s laws may have different rules for hearsay exemptions.
You can be ordered to go to trial if the lawyers choose you as a witness or your statement is admitted as evidence. When that happens, you will get a notice from the lawyer, or a subpoena, to appear in court. I’d advise you to meet with the estate planning lawyer or other type of lawyer at this point if for some reason you haven’t yet.
So, good news and bad news, sometimes it takes months or even years for a suit to go to trial. This is why it is very important to keep a record of what you said during your deposition.
You definitely don’t want to forget any details. Changing a single detail during the trial has consequences up to and including perjury, which is not something you want to commit even by accident. If you can’t make it to court, your testimony will be read or played verbatim with the same gravity as your live testimony.
What should you wear to your deposition? A more detailed account can be found in our “What to Wear to a Deposition” guide here. It’s a good rule of thumb to wear something clean and well-kept. Try to make a good impression since a deposition is still a legal proceeding regardless of if a judge is there or not.
When are depositions necessary? Depositions can be useful for you and the other people involved help to settle legal disputes before a case goes to trial. The answers you give can help reach a settlement outside of court, provide a witness statement, or just officially record your side of things.
What are some other types of depositions? When you go to a deposition you could be videotaped (learn more on Deposition Academy here), or give an oral statement with the stenographer typing up your answers. There are also phone depositions where the lawyer calls you. Or you could write your statement (also known as an affidavit) by answering some questions the lawyer sends to you, but a notary public needs to witness your signature for it to be under oath.
This article was sponsored by Gary W. Crews, PLLC, an estate planning law firm from Tulsa, Oklahoma. His team specializes in Tulsa probate law and have a long track record of producing great results for their clients. You can visit their Tulsa lawyer website here to learn more.