A deposition is an out-of-court hearing during which a witness is questioned on record in a civil lawsuit. During testimony, lawyers direct questions towards the witness that may strengthen their case. The witness responds to each question, or the question is challenged by opposing counsel. The line of questioning becomes part of the court record and can be recalled in court. This vital process allows both parties to gain a better understanding of the case, and can provide a powerful impetus to settle, seek more information, or soldier on toward trial.
The witness being deposed—sometimes called the deponent—is generally a key witness or participant in the lawsuit. This can be the plaintiff, the defendant, a character witness or an expert witness. In some cases, a deposition witness will not be related to a party in the lawsuit (e.g., a neighbor, landlord, or eyewitness); if these third-party deponents are unwilling to testify, a subpoena can be served to ensure cooperation.
Ultimately, a worthwhile deposition will expose valuable new information about the case that can help reach a resolution—or, lay the groundwork for a successful trial strategy. Both attorneys should use this stage of the process to understand the weak spots in their cases. It’s not just about obtaining favorable testimony; they’re also about learning everything you would want to know before your client’s trial begins.
What Happens at a Deposition?
Depositions occur at an agreed-upon date and time, in law offices or conference rooms. It typically includes the witness(es), the attorneys, and a court reporter; if the witness will not be available at trial, a videographer may also be present to record the questioning, which later gets distributed to both parties as a written transcript. No judges are present.
The deposition process begins with the swearing in the deponent, which the court reporter officiates. The oath taken simply requires that the witness tell the truth to the best of their abilities. (Failing to tell the truth is considered perjury and can result in serious penalties.)
Then, the attorney who requested the deposition will ask the deponent questions about the case; the deponent’s attorney wants to make sure that their client understands the question before answering. The opposing attorney can ask the witness followup questions as a sort of cross examination, but the deponent's attorney will generally only participate when they object to questions from opposing counsel.
How long do depositions take?
An average deposition takes between two and four hours from start to finish but this is highly variable. The question-and-answer session can take as little as 10 minutes or as much as several hours. The length depends on factors like:
- The case’s complexity
- The number of questions
- The deponent's answers
- The number of exhibits
… and other specifics of the case.
In most states, and in accordance with the federal rules of civil procedure, the maximum allowable time for a single deposition is seven (7) hours. Depositions may take several days, but the total length of the deposition cannot exceed the time limit set by state and federal guidelines.
What is “discovery” in a legal case?
Discovery is any formal investigation performed on behalf of a party to a lawsuit that allows them to find out more about the case. This is done through a series of requests for discovery, or interrogatories. Discovery enables parties to present facts and new evidence to refine their legal arguments, and prevents unexpected delays during trial. In some cases, discovery reveals information that helps the opposing sides reach a settlement and avoid the expense and risk of going to trial. Personal injury attorneys generally attend at least one deposition.
Depositions occur during what is known as the discovery phase, during which both sides of the case collect information and evidence to strengthen (or settle) their case. When a settlement is not reached after negotiations, the plaintiff will often opt to go to trial.
An effective deposition is one that establishes the defendants’ duty of care, proves breach of contract, corroborates a causal relationship between incident and injury, or otherwise provides evidence to support your case.
In addition to deposition testimony, discovery can include:
- Medical records
- Insurance company documents
- Photos and videos pertinent to the case
- Police reports
- Financial documents
- Personal emails and memoranda
- Meeting minutes
- Social media posts
- Text messages
During discovery, either party can use subpoenas to request relevant documents or testimony that are not willingly disclosed. Depending on the scope of the case, the discovery phase can take months, or even years, to complete.
What happens after a deposition?
After a deposition, both parties may have discovered additional information that they choose to investigate. Depending on the evidence collected through the deposition transcripts, the discovery phase will continue with more requests for production and depositions, or one or both parties may seek to resolve the case through settlement.
Sample Deposition Questions for Plaintiff
You may be wondering what kinds of questions are asked in a deposition. Generally, the range of questions in a deposition is wider than the range of questions asked in court, as no judge is present during the questioning. While the deponent’s attorney may object to some inquiries, the deponent is usually obligated to answer all questions asked. At a future date, a judge may render certain questions impermissible in court.
Deposition questions have two main purposes: to find out what the witness knows (or believes), and (2) to preserve that witness's testimony as evidence in the case. Contrary to courtroom dramas, it is rare that there are any “surprise witnesses” in courtroom proceedings; however, depending on the structure of the questions, there can be any number of surprising moments during deposition questioning.
Deposition questions may include simple information-gathering questions like the following:
- What is your full name?
- What is your current address?
- What is your date of birth?
- Can you provide an overview of your educational background?
- Are you currently employed?
- Are you married?
- Do you have minor children or any other dependents?
Some deposition questions may have to do with how the deponent prepared for the meeting:
- How did you prepare for your deposition today?
- Did you speak to anyone besides your attorney about the car accident?
- What did you discuss during your deposition preparation?
- What case documents have you reviewed?
- Did you meet with opposing counsel or receive any legal advice prior to the deposition?
Deposition questions cannot be leading, and deponents will have been instructed not to volunteer information without a direct question on a certain topic.
Can a Deposition Be Taken in a Criminal Case?
While depositions are not typically taken in criminal cases, there are occasional exceptions. One may be taken in lieu of taking the stand in court if a witness is over the age of 65, considered an adult dependent, or has a medical condition that may prevent them from being able to testify at trial. A criminal deposition is also appropriate in cases where the deponent may be unavailable.
This is the definitive text on taking and defending depositions, now in a revised fifth edition. The Deposition Handbook provides guidance to every lawyer, from those with no experience to those with a high level of proficiency. This is why the book is required reading for associates at some of America’s largest law firms. Written by two members of the American Board of Trial Advocates, this book covers a wide range of fields and topics, making it the deposition text on this list with the widest applicability outside the field of personal injury litigation. The book applies well to those in business litigation, family law, intellectual property litigation, insurance coverage litigation, construction defect, securities litigation, employment law, and more. The Deposition Handbook provides specific techniques for eliciting information, guidelines for video depositions, case studies, checklists, numerous examples, rules of conduct, questioning techniques, client deposition preparation, and sample questions.View Details
Advanced Depositions Strategy and Practice
This is Trial Guides’ best-selling deposition product. This book is the basis for the American Association for Justice’s Advanced Deposition College. This book is primarily aimed at motor vehicle cases, medical malpractice, premises liability, product defect, and other types of personal injury cases as well as related issues like insurance bad faith.
This book’s premise is that a successful deposition is the direct result of thoughtful planning and preparation. In Advanced Depositions Strategy and Practice, Phillip Miller and Paul Scoptur reveal proven tactics for how to elicit the information you need to support your case theory and craft a cohesive, convincing trial theme. The authors come at this having a history as lawyers, trial strategists and running hundreds of focus groups. The authors provide techniques for a focused case analysis, and show you how to effectively navigate through the obstacles you will encounter during depositions. In addition to strategy, this book provides a wealth of specific examples from real case depositions, as well as methods to handle evasive, hostile, uncooperative, and opposing expert witnesses.
30(b)(6): Deposing Corporations, Organizations & the Government, Second Edition
This is the definitive treatise on taking 30(b)(6) depositions. If you notice and depose 30(b)(6) deponents, you need this book.
Any time you file litigation against a corporation, organization or governmental entity, you are often taking on a massive entity with far more money and lawyers than your office. This book teaches you the incredible power available in these cases using FRCP 30(b)(6) and the associated state laws governing corporate and organization depositions. The book takes you step by step through how to designate the areas of inquiry for the designee deposition and forcing the opposing party to appoint one or more people to answer on behalf of the organization with all information known to that corporation, organization or entity. It also teaches you how to notice an affiliated non-party for depositions in your insurance claims. Using the knowledge from this book, you will no longer let designated deponents get away with evasive answers like “I don’t know,” because the organization is required to give that designee all knowledge pertaining to the topics you list in your notice. Gone are the days of “the person most knowledgeable,” and evasive answers, because a denial of knowledge by the deponent is a denial of knowledge by the corporation or entity itself. The book goes beyond just the oral deposition, and includes tips on document depositions when defense counsel has refused to provide discovery through requests for production or interrogatories. The book is also filled with state and federal case law on 30(b)(6) depositions that can be used in your motions to compel, and motions for sanctions when the opposing party engages in discovery abuses. This book is critical for every lawyer handling any type of case against a corporation, organization or governmental entity, and has transformed thousands of lawyers’ discovery practices.
Deposition Techniques: Strategies, Tactics, and Skills
This DVD set is aimed primarily at fields of law such as business litigation, intellectual property litigation, family law, entertainment law, insurance coverage, and other areas of law. The speaker on this DVD set is David Markowitz, a Fellow of the American College of Trial Lawyers who is considered one of the best business litigators in the country. For over twenty years, Markowitz has been studying deposition and trial techniques and has presented dozens of seminars to improve the deposition skills of practicing attorneys. In this lecture, Markowitz shares important goals to accomplish in depositions. You will learn the value of question structure and how to deal with evasive and incomplete answers. This video will also cover the most important questions and techniques the best lawyers use, plus a key component of any deposition: knowing when to stop asking questions.
Markowitz demonstrates powerful and practical methods for getting the most out of your depositions, including the best ways to defend depositions and effectively use depositions at trial. Whether you are new to trial practice or want to refresh your deposition skills, this presentation provides great insights.
Cross Examination: Science and Techniques, 3rd Ed.
Successful performance in deposition usually requires strong cross examination skills. Cross Examination: Science and Techniquesby Pozner & Dodd has long been the leading text on cross examination. Exhaustive in its coverage at 744 pages, it addresses every area and nuance of cross examination. This book is applicable to lawyers in the fields of business litigation, intellectual property litigation, family law, personal injury, criminal law, and other areas of law.View Details
The Fearless Cross-Examiner: Win the Witness, Win the Case
Patrick Malone, co-author of Rules of the Road, provides important new insights on cross examination, primarily aimed at personal injury cases. Included in this book is a discussion about why Irving Younger’s “10 Commandments of Cross Examination” are outdated, and how you should reconsider how to do cross examination in trial presently. This book contains contributions and cross examination excerpts from several lawyers in the Inner Circle of Advocates, demonstrating successful ways to cross both experts and lay witnesses.View Details
Dynamic Cross-Examination: A Whole New Way to Create Opportunities to Win
This book was brought to us by trial great Rick Friedman, who let us know this was the method of cross examination he had been using for twenty years. Written by Jim McComas, one of the best criminal defense lawyers in the United States, this book takes a very different approach to cross examination. Imagine a cross-examination technique that can consistently destroy a witness's credibility, elicit surprising answers, and create the powerful moments that win hard cases. McComas casts aside the old notions of not asking questions that you don’t know the answer to, and not taking on the expert on their own turf. Instead, McComas teaches you how diligent preparation prepares you to get exceptional outcomes in your case. This book is aimed at addressing both criminal defense and civil cases.View Details
Exposing Deceptive Defense Doctors
Usually, the most challenging depositions in a personal injury case, are those of the defense doctors. Author Dorothy Clay Sims is known amongst the national plaintiff bar as the go-to lawyer for dismantling defense doctors’ unsubstantiated opinions. Her book deals with ways to research the adverse witness, prepare for their deposition and then how to dismantle their testimony. The book will enable you to reveal dishonesty, bias, over-reaching, and incompetence by defense doctors in multiple specialties.View Details
This video set features Rick Friedman and Roger Dodd discussing every part of a trial from beginning to end. The important part for depositions is that you get a discussion between Dodd (author of Cross Examination: Science and Techniques) and Rick Friedman (co-author of Rules of the Road) discussing things about cross ranging from whether you should favor constructive cross or destructive cross, how Friedman’s use of the Dynamic Cross method contrasts with the Pozner & Dodd methods, and how Friedman recommends you use depositions and cross in your use of Rules of the Road in a case. There is a wealth of practical information available on this video set.View Details
Preparing for Depositions
This DVD is not for lawyers, but assists lawyers in preparing their injured clients for personal injury litigation depositions and trial testimony. In Preparing for Depositions, attorney Karen Koehler, instructs your client and witnesses on how to testify truthfully and successfully. Through easy-to-understand "Do" and "Don't" scenarios, Koehler guides your witness out of the pitfalls of messy and potentially devastating testimony. The DVD is broken down into ten short, essential rules of testimony that all of your witnesses need to know. Preparing for Depositions is something you can use in every litigation case to minimize your deposition and testimony preparation time. (* Please note, Trial Guides suggests that while this video will reduce a lawyer's preparation time for each witness, and lead to better prepared witnesses, it should not take the place of a specific discussion between the lawyer and each witness on the facts of the case.View Details