What is a Deposition in a Lawsuit?
A deposition is a question-and-answer session that helps parties in a lawsuit obtain testimony and other evidence to use at trial.
If you are:
- Representing yourself in a lawsuit without an attorney ("pro se" or "pro per"); or
- An attorney with little or no experience with depositions
Then this article can help you gain practical deposition knowledge and techniques.
Here is a list of common questions and topics people ask about depositions:
- What is a deposition?
- Do I need a lawyer?
- Can a pro se litigant conduct a deposition?
- What should I expect?
- What is the purpose of a deposition?
- How do you conduct a deposition?
- What should I wear?
- What does it mean to be deposed?
- What to avoid at a deposition;
- What is a deposition transcript?
- Is a deposition under oath?
- Where do pro se parties hold depositions?
We will answer each of these questions (or topics) below. Feel free to jump to the question that is most useful to you. Or read all the questions and answers to gain a good grasp of what a deposition is and what to expect when you appear for depositions in your case.
What is a deposition?
We provided a brief definition above: A deposition is a question-and-answer session — under oath — used to gather evidence and testimony to use at trial.
During a deposition, all testimony by the deponent (party or non-party witness) is recorded in a document called a deposition transcript. A court reporter transcribes all the questions and answers with a machine called a stenograph.
Lawyers (and self-represented parties) may use the testimony and evidence from the transcript to prove their claims and defenses at trial. We'll talk more about this below.
Do I need a lawyer?
As a general rule, you should always hire an attorney when you can afford to do so. That being said, millions of Americans simply cannot afford to pay an attorney and are left to represent themselves (“pro se” or “pro per”).
Generally, attorneys conduct depositions on behalf of their clients. Attorneys are typically present when their clients (or witnesses involved in the case) are deposed.
However, you must always read and follow the rules in your jurisdiction.
For tips and strategies on preparing for, conducting, and participating in depositions, check out Depositions 101: Techniques and Strategies.
Can a pro se party conduct a deposition?
Due to the substantial costs of hiring an attorney, more and more litigants are forced to represent themselves in civil lawsuits without an attorney ("pro se" or "pro per"). And many self-represented parties are wondering, "Can a pro se litigant conduct a deposition?"
The simple answer is: Yes, as long as it is permitted by local rules.
However, some factors must be taken into account before a pro se litigant conducts a deposition. Here are a few things to consider:
- Cost: It will likely be considerably less expensive to conduct a deposition as a pro se litigant (as opposed to hiring an attorney). However, there are still costs involved, including the fees for securing a room, hiring a court reporter, and obtaining a copy of the transcript.
- Questions: When it comes to asking questions, there is an important technical aspect — and an art — to examining parties or witnesses so you can obtain facts to support your claims or defenses. Even if you cannot afford an attorney, you can learn the necessary skills to conduct a deposition as a pro se litigant. And without the skills, you will likely not achieve the goals you are seeking.
- Objections: The opposing attorney will likely object to some (or many) of the questions you ask. You need to learn how to respond to these objections if you want to get the testimony you need.
As a pro se litigant, conducting a deposition can significantly help you gather testimony and evidence for your case — if you know how to do it skillfully. If you try to “wing it” you may find that you wasted your time, money, or worse —damaged your chances of prevailing in the lawsuit.
We provide further study on how a pro se litigant (or attorney) can gain the necessary skills here.
What to expect
What to expect at a deposition will depend on whether you are asking the questions or answering them.
If you are asking the questions, you can expect your opponent to have an attorney present who can object to any questions that violate the rules of evidence — or are otherwise irrelevant or improper. And they may instruct their client (or witnesses) not to answer specific questions. You'll want to be prepared for these objections and know when you have legal grounds to continue pursuing your line of questioning, rephrase, or move on.
If you are answering the questions, it is equally important that you learn about deposition procedure and review your local rules of evidence. Preparation is essential!
Other things you can expect:
- A court reporter will be transcribing everything you say (and there may be a video recording).
- If you speak too soft, nod your head, or make a gesture when answering a question, you can expect to be asked to give a verbal response.
- You can expect to be "sworn in" — which means all your testimony is under oath.
- A copy of the transcript will be offered, and you will be asked to review, make any necessary changes, and sign the transcript under penalty of perjury.
If you'd like to prepare for your deposition, we recommend the video litigation tutorial Depositions 101: Techniques and Strategies. It will show you what to expect and how to prepare for a deposition. Learn more.
What is the purpose of a deposition?
We've mentioned one purpose of a deposition previously: to uncover witness testimony and evidence that can help in your case.
However, a deposition may serve multiple purposes. In fact, a single deposition can — and often does — serve more than one purpose.
Here are the primary purposes for conducting a deposition:
- Lock in the witness’ testimony in case he/she changes his/her testimony at trial. This tactic is especially useful to impeach a witness' credibility at trial.
- Gain insights about the case and the witness’ knowledge of the events. Sometimes you can uncover useful testimony and facts that you didn't even know existed.
- Preserve the witness’ testimony (in case he/she disappears, dies, or becomes incapacitated before trial).
Learn how you can use depositions to your advantage in your case.
How to conduct a deposition
First, you need to set up a strategy and game plan to get the evidence you need to prevail in your case. If conducting a deposition fits into that strategy, you'll need to send out notices to the witnesses and parties that you want to depose. You'll set up a time, secure a location, hire a court reporter, and write up a list of questions.
Then on the set day, you'll show up with your list of questions, have your witness sworn in, and begin the process of skillfully asking the questions to get the testimony you need.
Simple.
Okay, not so simple.
But it is doable.
Especially with the help of Legal Seagull's Depositions 101: Techniques and Strategies.
The video tutorial will SHOW you how to conduct a deposition through a simulated lawsuit of Patterson v. Don's Moving Company.
Patterson, the plaintiff in the fictitious lawsuit, represents himself pro se at a deposition against a seasoned attorney. He questions witnesses and answers the opposing attorney's questions under oath. Plus, real litigation attorneys, experienced in depositions, provide critical commentary, strategies, and instruction to help you form a plan for your deposition.
You'll discover lots of tips and strategies for depositions. Learn more.
What should you wear?
A deposition is not as formal as an appearance in a courtroom — but you should still err on the side of caution. While you don't necessarily need to wear formal attire, this may be your first opportunity to make an impression on your opponent.
You can be sure the opposing attorney is going to look for every opportunity to discredit your testimony (if it is harmful to their case). And what you wear may provide clues as to your credibility as a witness.
Present yourself well. Dress appropriately in business or business-casual attire.
The most important thing you can wear is your credibility.
What does it mean to be deposed?
When you are the person who is answering the questions at a deposition, that means you are being “deposed.”
The person who is being deposed is also called a deponent. If you are involved in a lawsuit (or are a witness), you will likely hear these words used interchangeably.
What to avoid at a deposition
There are also things you should avoid at a deposition. Most of all, you should avoid lying or testifying untruthfully or inaccurately in any way.
When you are deposed, you are under oath to tell the truth. And you will sign the transcript under penalty of perjury.
Here are a few other things to avoid at a deposition:
- Don’t say anything belligerent or threatening;
- Don't volunteer information you are not asked to share; and
- Don’t say or do anything that violates your local court rules or laws.
What is a deposition transcript?
A transcript is a written document created during a deposition that records all the questions and answers by the attorney, self-represented party, or witness.
Once the deposition is complete, the deponent (person answering the questions) will have the chance to look over the transcript before making any necessary changes and signing the transcript under penalty of perjury.
Is a deposition under oath?
Yes. A deposition is taken under oath. Before answering questions, the court reporter will "swear in" the deponent under penalty of perjury. Because it is conducted under oath, it is vital to tell the truth at a deposition.
Many parties make the mistake of guessing when they are not sure of an answer. Guessing is not a good idea. Just stick with the facts. And if you truly don't know an answer, you can always say that you do not know.
In our video litigation tutorial Depositions 101, you can watch a party impeach (discredit) a witness in a fictitious lawsuit after the witness changes his testimony at trial — so that it is inconsistent with his sworn deposition testimony. If your case might be headed to trial — you'll want to take a look. Learn more.
Where do pro se parties hold depositions?
If you are a pro se litigant in a lawsuit, then you will be responsible for finding a location to accommodate your deposition.
In some jurisdictions, the local court will make a room available for pro se parties to conduct depositions. Additionally, court reporting services may have space available for pro se litigants, such as a hotel conference room.
If those options are not available, you could try renting a room in an office building or even at the library.
We hope this article has helped you grasp the essential elements of what a deposition is.
If you want to learn more, we encourage you to take a look at Depositions 101: Techniques and Strategies.
In addition to showing simulations of depositions, this tutorial includes commentary, tips, and insights of experienced litigation attorneys.
You'll learn:
- How to prepare and plan for depositions — (whether you are the one testifying or asking questions of a witness);
- Ways to handle objections from an opposing attorney;
- Means and methods to discover facts and lock-in testimony; and
- Many additional techniques and strategies to build a strong case in court.