What is a Deposition?
By: Kevin Stouwie
Board Certified, Personal Injury Trial Law
Texas Board of Legal Specialization
A deposition is an important meeting where sworn testimony is provided by a witness or party after a lawsuit is filed, but before a trial occurs. The lawyers are present, and have the opportunity to question the witness about any facts that may be relevant in a case. The lawyers may also inquire about many things that are not relevant to the case, so long as it is reasonably possible that the question may lead to relevant evidence. In other words, the questions that may be asked in a deposition can be far ranging, and are almost entirely up to the lawyer who asks the questions.
A court reporter is present at a deposition, and he or she is responsible for stenographically recording every single word of every question and answer provided during a deposition. In many depositions, there is also a videographer who records the audio and video, for possible use at trial. The video camera is usually focused solely on the witness who is answering the questions, unless an exhibit is being examined or discussed. It is impossible to anticipate every single question that will be asked, or how long a deposition will last. However, in Texas, a deposition may not last more than 6 hours, without prior approval from a judge. Routine depositions usually last from one to three hours, and the expected subject matter of the deposition is generally somewhat predictable.
Although depositions almost always take place in the conference room of one of the lawyers involved in the case, and may seem casual, the deposition is just as important to the case as what occurs in a courtroom before a judge and jury. In most trials, deposition testimony is presented to a jury, either by playing portions of the videotape, or reading testimony into evidence that was recorded by the court reporter who was present at the deposition.
The testimony provided by a witness should always be the same as what the witness would say if he or she were testifying live in a courtroom. The person who is to answer questions at a deposition is always placed under oath and must verbally agree that they will provide honest testimony. If a witness gave a deposition in a case, and then comes to court and answers any question differently than the testimony provided during the deposition, this inconsistency in testimony is almost always identified and pointed out by the lawyer who seeks to discredit the witness before the scrutinizing eyes and ears of the judge or jury.
The lawyers to a case will purchase a copy of the court reporter’s typed transcript of the deposition shortly after it takes place, and will have studied the transcript carefully in anticipation of identifying and pointing out inconsistencies between deposition testimony and trial testimony.
The lawyer for any party to a case can take the deposition of a witness or of the opposing party. Most lawyers try to be courteous with one another in scheduling depositions, but there are times when the availability of a witness is a problem, or one of the many deadlines imposed by the court might prevent the attorneys from allowing for the typical professional courtesy that is normally provided.
It is almost impossible to re-depose a witness or a party, except under very specific and limited circumstances. Therefore, the lawyers will only get this one opportunity (before trial) to question a witness or a party. In order for a deposition to provide the most benefit to the party who seeks to obtain the testimony, it is very important for the lawyer to be thoroughly familiar with the facts of the case, and what information must be obtained from a particular witness during the deposition. It also helps if the lawyer who takes a deposition be experienced and well trained in the art of taking depositions. Many lawyers prepare an outline or checklist of areas to cover during a deposition, and review the case file the day before the deposition.
Being the lawyer who schedules the deposition has potential benefits and some drawbacks. The most obvious benefit is that a deposition can identify and develop important evidence, or proof, that will be considered by the lawyers in determining whether to go to trial or settle. Such proof can also help the lawyers determine the settlement “value”, which is really just an experienced assessment of the likely range of a jury’s verdict in a specific case.
Depositions are widely recognized as perhaps the most valuable tool at a lawyer’s disposal in getting a firm opinion of the strengths and weaknesses in a case, and whether to settle or go to trial.
This article is for informational purposes only. It is not intended to provide legal advice, as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.