What Happens in a Deposition?
A civil deposition is sworn testimony under oath, often taken in a lawyer’s office or at the offices of a court reporting firm. In a civil deposition, a court reporter takes down everything that is said in the room, later producing a booklet with questions, answers, and objections that reads like a play or a manuscript. A deposition may be videotaped as well, generally if a witness is going to be unavailable at trial or if the attorney noticing the deposition believes the witness is going to lack credibility.
Each deposition is its own separate event, meaning that only one witness can be questioned per deposition. If the witness has an attorney, that attorney will “defend” the deposition. Defending a deposition means objecting to questions posed by the questioning attorney; the artful counselor will also attempt to coach his or her witness as necessary during the course of a deposition, however coaching (or making speaking objections) is expressly forbidden and is to be avoided. Sanctions can issue for the defending attorney who impedes, coaches, or counsels on the record during a deposition proceeding.
The witness being questioned may be questioned by an attorney from one party or many parties, but never multiple attorneys for the same party. More important than the deposition itself is the pre-deposition meeting that occurs between an attorney and his or her client. Attorneys generally know in advance whether a client is going to present as a good witness. The questioning attorney – the attorney who has noticed the deposition – is looking for two things from the witness: (1) the witness’s testimony, and (2) whether the witness will present as credible and sympathetic to a jury. The witness’s appearance and manner are taken into consideration by the questioning attorney, and part of deposition preparation (“depo prep”) is to ensure that all angles, including appearance and manner, have been addressed.
Some witnesses need a lot of preparation time, whether to refresh on facts or to learn to provide concise answers. Lawyers tend to ask very precise questions. One of the biggest mistakes a deponent can make is to try to anticipate where a lawyer is going with a question and to answer “the next question.” Most lawyers are competent enough to ask the next question. Most. A witness needs to answer the question pending and to let the questioning lawyer listen, process, and proceed.
For lawyers, the intent of a deposition is to box the witness’s testimony. Expert witnesses, many of whom have been deposed hundreds of times, tend to engage in a cat-and-mouse game whereby they refuse to commit to a response. While it is primarily younger lawyers who allow witnesses to control the course of a deposition, I have reviewed deposition transcripts by highly respected lawyers who have been in the game for over 40 years (i.e., longer than I have been alive!) who have failed to nail down critical testimony. There is nothing worse than preparing for trial and realizing that you have obtained testimony that is ambiguous and that cannot be used to impeach a witness. The deposition transcript is very expensive kindling at that point.
The legal system is very difficult to navigate without a lawyer. There are numerous deadlines and tricks and traps to avoid. If you are representing yourself and trying to minimize costs, at a minimum it is wise to hire a lawyer for the express purposes of defending your deposition. You need to anticipate that a lawyer is going to need time to review the file, to interview you, to prepare you, and to sit in at your deposition. The preparation time could exceed the actual time that you are testifying under oath, but in my opinion you will find that it is money well-spent and will likely end up saving you a lot more than it costs you.
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