So you are told that your deposition will be taken. What does this mean? What do you need to know? What will happen? First, you need to have a basic understanding of what a deposition is. Simply put, a deposition is a tool for discovering facts and information by asking questions of a person. It is always done in connection with a lawsuit, either pending or potential. (In this article, we only discuss an oral deposition, but depositions can be done through written questions following certain rules.)
What is a Deposition?
If you are a party to a lawsuit, a witness to an accident, a colleague or friend or family member that knows what happened, among many other reasons, you may be requested (or required) to give a deposition. An oral deposition is an opportunity for both parties of a lawsuit to explore and discover what knowledge and facts you have in your memory and understanding. During a deposition, the witness is under oath, just as if they were in a court in front of a judge and jury. The deposition is recorded and transcribed by a certified court reporter, and the transcript can be used at trial as admissible evidence.
Typically, the deposition is requested by one party to get information from the other party, the other parties’ witnesses, or third party witnesses. All parties can ask questions, but usually one party asks hours of questions while the other party saves their questions for trial. In an oral deposition, the attorney conducting the deposition will ask the witness questions and attempt to create a conversation whereby the witness volunteers and provides all facts in the witness’ memory banks.
In general, the parties request depositions after exchanging key documents like emails, texts, contracts, police reports, medical records, other communications, and any other relevant writings. Therefore, depositions are taken in the middle of the case to allow the transcripts to be used as evidence and/or to record someone’s testimony that may not be available at a trial. Because you are under oath, the opposing party can use your words as evidence in the lawsuit.
Why is a Deposition Important?
There are many reasons a deposition is important: (1) the sworn testimony can be used in pre-trial motions to get rid of the claims; (2) find out exactly what a witness knows and will say at trial (3) apply pressure for a settlement; and (4) limit the witness to stating same testimony at trial, or face being called a liar.
A few important points:
- A party may file a Motion for Summary Judgment that asserts that they are entitled to judgment as a matter of law. Deposition testimony is often key to such a motion, and can stop someone from getting their day in court.
- There are always two sides to every legal dispute. A deposition allows an attorney to try to explore, challenge, and refute the oral testimony of the witness. The client and the attorney then better understand the good, bad, and ugly of the lawsuit.
- At the end of a deposition, the facts are better defined and both parties have to live with that testimony and this can cause one or both parties to want to resolve it because of that testimony.
- Depositions are given under oath as if you are in front of the judge, this means that if the testimony is changed later, your opponent can show the jury the deposition transcript to show that you said something different in the deposition (classic example; witness testifies in deposition that the traffic light was red, but changes and says the light was green at trial).
What Happens During a Deposition?
Because of their importance, depositions can be intimidating, scary, and stressful. To get a picture of what the deposition looks like, imagine this situation: you are likely in your attorney’s office, as the witness you sit at the end of a long conference room table, seated to one side is a court reporter with a computer or an odd machine that looks like a small typewriter, on the other side is your attorney and any others on your side, opposing counsel and your opponent sit on the side of the table opposite your attorney, and (possibly) at the other end is a video camera filming you. You will be asked questions for up to six hours (which does not include breaks) where someone is giving you a memory test and then trying to catch you in a trap.
Hammerle’s Lewisville, TX Attorneys Can Help
This described scenario can seem daunting and overwhelming. This can be avoided by confident preparation, advice of an experienced attorney, and remembering the most important rule, always tell the truth. It is your attorney’s job to explain to you what happens in a deposition, to make the experience less stressful, and to prepare you for the expected questions. If you are in need of a litigation attorney in the Dallas or Lewisville area, fill out our contact us form online for a free assessment or call (972) 436-9300 for a consultation.