“Deposition” is one of those words in Legalese that gets used often enough on TV and in movies that it is familiar to most people. And yet, when pressed for a definition, most people probably couldn’t tell you exactly what it was except that it has something to do with lawyers and courtrooms.
I’ll make a confession here: for the first ten years of my career, I was a prosecutor. Prosecutors deal entirely with criminal law, and depositions are not generally used in the criminal arena. So the truth is that after 10 whole years of being a lawyer, even I wasn’t entirely sure what a deposition was. So don’t be embarrassed if you don’t know.
A deposition is something that takes place during the period of time between when a lawsuit is filed and the trial of the case, otherwise known as the discovery period. For more about what discovery is in general, click here. It is sort of like the testimony in a courtroom, except it doesn’t take place in a courtroom. It will usually take place in the office of the lawyer taking the deposition, or the offices of the lawyer whose client is being deposed, or sometimes in the offices of a professional witness. For example, most depositions of doctors will take place at the doctor’s office.
Depositions are taken when standard written discovery isn’t enough. Meaning, a list of questions or a pile of documents isn’t going to give you the information you need. Most often, depositions are done with third parties – people who aren’t actually a part of the lawsuit but have a lot of information as a witness. They are done when the second question you ask depends upon the answer to the first, and so on.
In a deposition, there is a court reporter present. A Court Reporter takes down every single word that is said and even records gestures. (Like: “Witness nods head in an affirmative manner.”) This may be a ‘regular’ court reporter who uses a special type-all-the-letters-at-once machine you have to go to school to use, or someone who makes video recordings of the witness. There are special requirements and certifications you have to meet and have in order to be an official Court Reporter, and in order for the things said during the deposition to be able to be used later. Otherwise, it is just a recorded conversation.
The witness is sworn in under oath, the same way he or she would be if he or she were on the witness stand in a courtroom. This means that everything that is said is sworn to be true – and if it turns out to be a lie it can be considered perjury, a crime. (A crime of ‘moral turpitude’, but that’s a column for another day.) Then the preliminaries occur. Generally speaking, the lawyers will “waive objection until such time as the evidence shall be used at trial,” which means if something is said that would normally make a lawyer jump to her feet and yell “Objection!” in a dramatic way, they just sit there, and worry about the objection if and when the deposition is used in a courtroom. Depositions are usually tools to get information, not to worry about rules of evidence and admissibility. The witness will also have the choice as to whether or not to ‘waive signature.’ This means that once the Court Reporter has finished creating a transcript of what happened, the witness can read it over and make corrections before it is made ‘official.’ The changes can only be things like spellings and typographical errors and mistakes in what was heard (like the transcript I got once where the judge was fond of saying “Lawyers, lawyers,” only the Court Reporter heard it every time as “Lori, Lori,” which made a lot of difference in the end, because the judge was not speaking just to me but to all the lawyers in the room. The witness can’t correct their answers if they think of a better one later, or correct their grammar or syntax if they didn’t speak the way they wish they did the first go round.
Depositions can be time consuming, since they are sometimes used as what I call ‘fishing expeditions.’ This means they are used by one side or the other just to see what is out there, and so the questions aren’t targeted or limited to admissible evidence like they would be in a courtroom. Time consuming, in legal parlance, also generally means expensive, since the lawyer has to prepare for the deposition, take the deposition, and then read the transcript later, and you pay your lawyer by the hour. Plus the Court Reporter has to be paid, and often the expert. Unfortunately, there are some lawyers who use depositions as a way to increase billable hours, so if your lawyer says he or she wants to take someone’s deposition, it wouldn’t be a bad idea to ask why standard written discovery can’t be done with this witness. Sometimes they are necessary, but not always. Sometimes they can be helpful, but only you can decide if they are helpful enough to justify the cost.
So now you know what a deposition is, and you can judge for yourself whether it is being used correctly on tv dramas, or what it is they are talking about on news shows.
This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation. I have not done that here.