What Is a Deposition?

How Is It Used in the Legal Process? Are There Different Types of Depositions?

At the basic level, the American legal system comprises criminal law and procedure and civil law and procedure. Criminal courts address and resolve what are considered to be offenses against society as a whole (although there may be one particular victim of the crime), whereas civil courts primarily adjudicate disputes between private individuals or entities. As part of the civil litigation process, once a complaint is filed, the parties engage in “discovery,” a procedure in which all potentially relevant evidence is gathered, preserved, and shared between the parties. One of the primary means of discovery is the use of depositions.

What Is a Deposition?

A deposition is essentially an interview with, or questioning of, someone who may have evidence relevant to the case at hand. A deposition has both formal and informal characteristics. A deposition typically takes the form of a meeting where counsel for all parties is present. It’s common for a deposition to be held in the offices of one of the attorneys involved in the litigation. The attorney who asked for the deposition usually takes the lead and asks most of the questions, but the attorneys for any party to the dispute may participate.

A court reporter is present to transcribe all questions and answers throughout the course of the deposition. Many depositions are now videotaped as well. The court reporter will swear in the witness at the beginning of the deposition.

Who May Be Called to Provide Testimony at a Deposition?

The deponent (the person answering questions at the deposition) may be anyone with potential knowledge of facts related to the case, or who might be called as a witness at trial. The parties to a lawsuit are commonly required to submit to depositions, as are material witnesses. Furthermore, if either party intends to call an expert witness, other parties may depose them.

Are There Specific Rules That Apply at a Deposition?

Because the objective is to obtain as much evidence as possible, and because the deposition is not conducted in the presence of the jury, the rules of evidence are somewhat relaxed at a deposition. Accordingly, counsel may ask, and deponents may answer, questions that might be disallowed at trial. When that happens, counsel can state objections, but the witness will usually be required to answer the question. If the witness still refuses to answer the question, the parties may seek the intervention of the court to compel the witness to respond. Any testimony given during the deposition to which a party objects may be reviewed by the court before trial. If the court deems it inadmissible, it will be excluded at trial.

How Are Depositions Used as Part of the Civil Process?

The most common uses of deposition testimony are to:

• Help all parties learn about potentially relevant evidence—Facts learned at a deposition can help parties find new witnesses or otherwise clarify events and circumstances related to the case.
• Impeach the credibility of a witness at trial—An attorney may refer back to the testimony given by a witness at their deposition if it conflicts with what is said in court. That can reduce or undermine the credibility of the witness.
• Allow the introduction of testimony when a witness has died or is otherwise unavailable—If a witness with relevant testimony cannot appear at trial, their deposition testimony may be read to the jury and put on the record.