Updated: Aug 8
Preparing clients for the upcoming events of their case is a key part of any attorney’s job, and answering the question of “what is a deposition?” is no exception. My clients have rarely ever been involved in a lawsuit before, and so it stands to reason that they need to have things like a deposition explained to them.
A deposition is a time to take live sworn under oath testimony from a witness outside of a courtroom. This is a fact-gathering exercise for the attorneys in the case to learn what that witness knows and is going to say at a later court proceeding if the case reaches a trial.
This testimony will be taken in front of a Court Reporter who will swear in the witness and record both the attorney’s questions and the witnesses’ responses on a transcript. Depositions are part of the discovery process and typically will take place after written discovery has been completed; however, this is not a requirement, a party could choose to do depositions prior to written discovery and there are specific and unique reasons why you might make that decision. Alabama Rule of Civil Procedure 30 provides the authority and guidelines for taking depositions in a civil case. Most States will have a very similar rule on how and when depositions may be conducted.
What is the purpose of a deposition
So now that we know what a deposition is, let's dive a little deeper into the purpose of a deposition. As mentioned in the definition above, a deposition is a fact-gathering exercise first and foremost. The attorney asking the questions of the witness is trying to find out what information the witness has about the case, and how that witness is likely to present to a jury. So, let’s tackle those each separately.
Each question the attorney asks during a deposition is targeted at eliciting information from the witness that is relevant to the case. Even those questions that seem entirely irrelevant to the case are planned and have a purpose. Many times the first questions will be about your family, relationships, work, education, and social clubs. While these questions appear nosey and prying the attorney is first attempting to get to know you, and to determine who you might be closely connected to so that if those people are on the jury for a trial of this case they can ask that they be excused. Additionally, as the attorney asks questions that may have been answered in written discovery he is seeking to see if you will expand on that information, leave something out, or change your answer entirely. All of these things help the attorney build his understanding of the case and how much the witness knows about the case.
Next, the attorney is gauging your appearance to a jury. This comes in many forms, your general appearance, attitude, similarities to the likely jury pool, and your credibility as a witness. Juries favor people they like and that are like them. In some cases, the actual people involved in the case can greatly affect the value of the case either because a jury will like them or dislike them and a good attorney is looking for that somewhat intangible factor.
Finally, a deposition serves one final purpose. I want to lock down the witness on their testimony under oath before the trial so that if that witness suddenly changes their story, adds information, or fails to address certain issues I can address those by referencing the under-oath testimony given during the deposition. Having the deposition transcript be clear and well-developed is key in making sure that a witness can not suddenly alter their story on the day of trial.
Who is present at a deposition
At party depositions, there will likely be several people in the room. First, all of the parties to the litigation will likely be there, and each of their attorneys will be there to either ask questions or defend the deposition. (defending the deposition is the job of the attorney for the party witness that is being deposed to object to bad questions or questions that are not appropriate for some other reason) There will also be a Court Reporter there to swear in the witness and take down all of the questions and responses in an accurate transcript.
What if there is an error in the transcript
State rules may vary on this issue, but in most cases, there will be a limited time frame from when the transcript is sent out to the attorneys to make objections to the accuracy of the transcript. This is rarely a significant issue, but if you think there may have been an error in the transcription you should immediately review the transcript and make those objections known to the Court Reporter to get that corrected. I have only had to do this on one occasion and it was not a significant enough issue to lose sleep over if it had not been fixed. Court Reporters on the whole do a fantastic job and are dedicated and detail-oriented.
How does the deposition affect my case
As we have discussed above, a deposition is a fact-finding mission, a tool to evaluate how a witness will present, and an opportunity to lock in key testimony for trial. If a deposition goes well it can result in the case being resolved because the other side sees that the witness is not going to be good for their case and they decide to increase their offers as a result. On the other hand, if a deposition goes poorly it may embolden the opposition to stick to their guns and proceed to trial without engaging in further settlement talks.
In short, in many cases, party and expert witness depositions are the tipping points where you get everything out on the table and find out all the good and bad things about your case. This is where a lot of cases are won or lost.
Will my attorney prepare me for my deposition
Your attorney should be preparing you for your deposition and ensuring that you are ready for that key moment in your case. I generally have a phone conversation with my client to explain to basics of what a deposition is and the purpose behind it. I later follow that up with an in-person meeting about three to four days prior to the deposition to go over the case facts with the client in detail and some strategic points on how to approach the deposition. Finally, I give them their prior responses to written discovery and ask that they review those several times before the deposition occurs and to call me with any questions they may have. I give the few-day buffer because while you may not have questions at the time of our meeting, many times clients will think of questions in the hours or days after the meeting. This gives us an opportunity to make sure they are fully prepared for the deposition when we walk into the room.
If you would like more information on preparing for your deposition check out our article specifically on that topic.