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What is a Deposition?

In civil litigation, which includes personal injuries, a deposition involves the sworn testimony of witnesses and parties to a lawsuit. It provides attorneys with crucial information that can significantly affect the outcome of a case.

Those involved in a personal injury matter must understand the definition, purpose, procedures, and critical aspects of depositions of this legal process in resolving disputes and seeking justice.

A skilled personal injury lawyer can explain depositions’ role in your specific case. Rest assured, if you must attend a deposition, they will prepare and represent you during it.

Understanding the Deposition Process

A deposition is an out-of-court oral testimony given under oath by a witness or a party to a lawsuit. It occurs before the trial and in the presence of attorneys from both sides.

It doesn’t have to take place inside the courtroom. Instead, it can happen at a mutually agreeable location, often an attorney’s office. A deposition gathers information, discovers evidence, and assesses the credibility of witnesses, aiding attorneys in building their cases.

Key Players in a Deposition

The deponent (the person sitting for the deposition) and the attorneys representing the parties involved in the lawsuit are the primary participants in a deposition. The deposition usually also consists of a court reporter, who transcribes the entire proceeding, ensuring an accurate record of the testimony. Other people, such as additional attorneys or a video recorder, may also join you in the room.

The Purpose and Goals of a Deposition

Depositions serve several purposes for those on both sides of the case:

What is a Deposition

  • Fact-finding and gathering evidence – Depositions are primarily conducted to collect information and evidence that may not be readily available through other means. Witness testimonies obtained during depositions can provide evidence during a trial or to strengthen a party’s negotiation position during settlement talks.
  • Assessing witness credibility – Depositions allow attorneys to evaluate the credibility of witnesses. Observing a witness’s demeanor, responsiveness, and consistency in their testimony can determine how effective they may be in front of a judge and jury. For example, a deponent who appears nervous, flustered, or combative during a deposition may seem the same way on the stand in court. Attorneys can use this to their advantage.
  • Narrowing down issues and identifying weaknesses – Through depositions, attorneys can identify weaknesses in their or opponent’s cases. This process allows them to refine their legal strategies, focus on critical issues, and potentially prompt settlement discussions.
  • Limiting surprises at trial – Depositions help to reduce surprises at trial by revealing each party’s case strengths and weaknesses before entering the courtroom. This aids in streamlining trial proceedings and preventing last-minute revelations.

Preparing for a Deposition

A deposition typically requires advance notice to the deponent and other involved parties. The attorneys involved in the case coordinate to schedule the deposition at a mutually agreeable time and place.

Before a deposition, the deponent and their attorney may review relevant documents, exhibits, or reports to refresh the deponent’s memory and ensure accuracy during the testimony.

Communications between an attorney and their client regarding deposition preparation are usually protected by attorney-client privilege, ensuring that sensitive discussions and information remain confidential.

The Deposition Process

The deposition process is crucial in civil litigation, allowing attorneys to gather information, discover evidence, and assess witness credibility outside the courtroom. Here is a step-by-step explanation of the deposition process:

Step 1: Scheduling and Notice

The process begins with scheduling the deposition at a mutually agreed-upon time and location. The party seeking the deposition must provide advance notice to the deponent and other involved parties. The notice includes details such as the date, time, and location of the deposition and the name of the court reporter who will be present to record the testimony.

Step 2: Swearing-In

On the deposition day, all participants gather at the agreed-upon location. The court reporter administers an oath to the deponent, swearing them to tell the truth during the deposition.

Step 3: Participants’ Introduction

Attorneys from both sides introduce themselves and their clients, if present. The court reporter typically records this introductory part of the deposition. It’s also often video or audio recorded.

Step 4: Questioning and Responses

The attorney conducting the deposition (typically the opposing counsel or the at-fault party’s attorney) begins the questioning. They ask a series of questions related to the case, seeking relevant information from the deponent. The deponent must respond truthfully and to the best of their knowledge.

If the deponent doesn’t know an answer to a question, doesn’t remember, or isn’t sure, they can answer as such. They should be honest rather than guess, assume, or lie.

Step 5: Objections

During a deposition, attorneys have the right to make various objections to specific questions or statements made during the proceedings. These objections protect the deponent’s rights, preserve privileges, and ensure fair conduct during the deposition.

Common objections in depositions include:

  • Relevance – Attorneys may object to questions irrelevant to the case at hand. The information sought must be reasonably related to the subject matter of the lawsuit.
  • Hearsay – Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Attorneys may object if a question seeks to elicit hearsay testimony, which is generally not admissible as evidence.
  • Leading – Leading questions suggest the desired answer or contain the answer within the question itself. Attorneys may object to leading questions during depositions.
  • Compound questions – A lawyer may object if a question combines multiple inquiries, making it difficult for the deponent to respond clearly and accurately to each part.
  • Argumentative – Attorneys should not use argumentative questions or express personal opinions. Such questions can be inappropriate or intended to oppress the deponent.
  • Assumes facts not in evidence – If a question assumes specific facts that have not been established or are not part of the evidence, an objection may challenge the question’s validity.
  • Vague or ambiguous – If a question is unclear, incomplete, or ambiguous, an objection can be made to seek clarification or request a more precise question.
  • Attorney-client privilege – When a question seeks information protected by the attorney-client privilege, such as confidential communications between an attorney and their client, the lawyer can object to preserve the privilege.
  • Work product doctrine – An attorney can object when a question seeks information that falls under the work product doctrine, protecting documents and materials prepared in anticipation of litigation.
  • Harassment or badgering – If an attorney badgers or harasses the deponent with repetitive, irrelevant, or antagonistic questions, an objection can stop the inappropriate line of questioning.
  • Non-responsive – If the deponent fails to answer the question directly or provides an evasive response, the lawyer can object, requesting a more precise and relevant answer.

Attorneys must handle objections appropriately, and deponents must listen to their counsel before answering a question if they raise an objection.

In some cases, the deponent may still have to answer the question despite the objection, and any objection should be on the deposition transcript for the record. The use of objections ensures that the deposition remains fair, focused and adheres to the applicable legal rules and procedures.

Step 6: Clarification and Explanation

Suppose the deponent doesn’t understand a question or needs clarification. In that case, they can ask the deposing attorney to rephrase or explain it. Additionally, after providing an answer, the deponent can request an opportunity to clarify or give more context to ensure an accurate record of their testimony.

Step 7: Reading and Signing

After the deposition, the court reporter transcribes the testimony, creating a written transcript. The deponent can review the transcript and make corrections for accuracy. Once satisfied, the deponent signs the transcript under oath, confirming the accuracy of their testimony.

Step 8: Use in Litigation

The deposition transcript becomes a crucial piece of evidence in the ongoing litigation. Attorneys use the information obtained during the deposition to prepare for trial, assess witness credibility, and develop cross-examinations.

Depositions can also influence settlement negotiations. Parties may reassess their positions based on the strengths and weaknesses revealed during the depositions, leading to more favorable settlement agreements.

Step 9: Impeachment at Trial

During the trial, attorneys may use the deposition transcript to impeach a witness if they provide contradictory or inconsistent testimony in court. Effective cross-examination using the deposition can discredit the witness and strengthen the case.

The deposition process plays a significant role in the discovery phase of civil litigation, allowing parties to gather crucial information and assess the strength of their case. It helps attorneys to prepare for trial, conduct settlement negotiations, and ensure a fair and just resolution of legal disputes.

Potential Challenges and Limitations of Depositions

Depositions, unfortunately, also come with particular challenges and limitations. Understanding these potential issues can help parties and attorneys navigate the deposition process more effectively. Here are some common challenges and limitations of depositions:

Witness Reluctance

Witnesses may be naturally apprehensive about participating in depositions, especially if they fear the consequences of their testimony or have an allegiance to one of the parties involved in the case. Witness reluctance can result in evasive or guarded responses, affecting the overall effectiveness of the deposition.

Leading Questions

During depositions, attorneys may use leading questions that suggest the desired answers. While leading questions are generally permissible in depositions, they may not be allowed during trial testimony. This can limit the scope of the questioning and lead to incomplete or biased responses.

Time and Expense

Depositions can be time-consuming and expensive, particularly in complex cases with multiple witnesses or extensive discovery requests. Preparing for, conducting, and transcribing depositions can add significant costs to the litigation process.

Incomplete Discovery

Sometimes, the discovery process may remain ongoing during the deposition. This can limit the effectiveness of the questioning, as attorneys may not have all the relevant documents and information they need to ask comprehensive and insightful questions.

Witness Memory and Recall

Witnesses may struggle to accurately recall events, conversations, or details during depositions, mainly if the events occurred some time ago. Memory lapses or inconsistencies in testimony can challenge the credibility of witnesses.

Lack of Spontaneity

Unlike trial testimony, depositions allow witnesses to review documents and receive coaching from their attorneys before responding. This can lead to rehearsed or scripted answers, reducing the spontaneity and authenticity of the testimony.

Emotional Impact

Depositions can be emotionally taxing for witnesses, mainly if they involve sensitive or traumatic events. Witness emotional distress may affect their ability to provide clear and coherent testimony.

Broader Scope of Questioning

The scope of questioning during depositions is broader than that during trial testimony. This can lead to tangential or irrelevant questioning, wasting time and resources.

Limited Follow-Up

Sometimes, time constraints or objections can limit follow-up questioning during a deposition. This can prevent attorneys from fully exploring certain lines of inquiry and limiting how they use the information from deposition at trial.

Despite these challenges and limitations, depositions remain incredibly helpful for obtaining critical information and assessing witness credibility in civil litigation. Experienced personal injury attorneys can address these issues effectively, ensuring that depositions contribute to a comprehensive and well-prepared case for trial or settlement negotiations.

Questions about Depositions? Talk to an Experienced Personal Injury Attorney Today

A deposition is a critical legal process that is a foundation for civil litigation. It enables attorneys to gather essential information, assess witness credibility, and shape their strategies before trial. Depositions play a pivotal role in revealing the strengths and weaknesses of each side’s case and serve as valuable tools for settlement negotiations.

Understanding the purpose, procedures, and potential challenges of depositions is vital for all parties involved in civil litigation, ensuring fair and effective resolution of disputes in the pursuit of justice. If you have questions about depositions and how they might help your case, contact a personal injury attorney today.

Lauren Varner, Personal Injury Attorney

Lauren is a Personal Injury Attorney. She is Colorado native who became involved with the field of personal injury long before she became an attorney. Lauren’s professional philosophy centers around good old fashioned hard work, producing quality work product, and treating others professionally, with dignity and respect at all times.

Awards and as featured on

National Trial Lawyers Top 40 Under 40 Included in TOP 40 Under 40 by The National TRIAL Lawyers in Centennial CO Varner Faddis Top Lawyers Denver Badge – 5280 Magazine American Institute of Personal Injury Attorneys 10 Best Attorney Top 40 Under 40 5280 Denver Top Lawyers