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How Do Depositions Work?

Posted February 09, 2018

By Jonathan A. Karon

A deposition is when the lawyers for one of the parties to a lawsuit question a witness or the other party under oath. It’s usually held in a conference room. In addition to the witness, there is a court reporter (a person who records the testimony on one of those little machines like you see on t.v.), lawyers for each of the parties and the witness. The court reporter swears the witness under oath (“do you swear to tell the truth, etc….”) and then the attorney who requested the deposition (the legal term is “noticed”) starts the questioning. When that attorney is finished, then the attorney for the other side (or the lawyers for each of the parties in turn if there’s more than one) has the opportunity to question the witness. When the attorney for the other side is finished, then the first attorney can ask follow up questions regarding the subjects the second attorney asked about. The questioning continues until all the attorneys are finished. The Court reporter then prepares a written transcript which is usually sent to the attorneys a few weeks after the deposition. The witness, called “the deponent” then has the right to review their testimony and make written corrections to it. Knowingly giving false testimony at a deposition is considered perjury, the same as if the testimony was given in court.

In addition to there being no jury present, there is also no judge present. Although the lawyers may object to certain testimony, it will be up to a judge to rule at a later time, whether a jury gets to hear it. If a question comes up that requires immediate attention, it may be necessary to suspend the deposition and go to court to get a ruling from the judge.

There are a number of reasons why a lawyer may want to take a deposition. One reason is simply to find out what a witness has to say and “freeze” their testimony for trial. For example, if a witness says the traffic light was red at their deposition, they’ll have trouble if they try to testify at trial that the light was green. Good or bad, it will help the lawyer to know what the witness is going to say. This is particularly important if the witness is the plaintiff or defendant as lawyers are not allowed to question the other side without their attorneys present. Sometimes lawyers will also take a deposition to preserve important testimony in case the witness is not available to testify at the time of trial (for instance if they’ll be outside the jurisdiction).

Here are the answers to some questions I’m frequently asked by people who’ve been subpoenaed to attend a deposition:

1. What happens if I don’t attend my deposition? If you’ve been served with a subpoena, you’re legally obligated to show up, unless the lawyer who had you served agrees to re-schedule or the Court says it’s okay for you not to show. If you just refuse to attend, the lawyer can ask the Court to hold you in contempt, which could result in some significant penalties. Most lawyers are reasonable people, and if you have a scheduling conflict and let them know, they will usually agree to re-schedule to a more convenient date. If you are the plaintiff or the defendant, if you don’t show up, they can dismiss your case or enter judgment against you.

2. Do I need a lawyer for my deposition? If you are a party to the case (plaintiff or defendant) then the answer is yes and you already have one. If, however, you’re just a witness, then you probably don’t need to retain a lawyer. There are some situations where it might be a good idea to be represented, for instance if you’re concerned you might be drawn into a case or you might have to divulge confidential or privileged information. If you are concerned, you should consult with a lawyer to figure out if it makes sense for you to be represented.

3. Is it alright to meet with my lawyer before my deposition? Of course and if you’re a party to a case, you absolutely should. The lawyer won’t tell you what to say, but they will be able to tell you what to expect, so you can relax and give truthful, accurate, testimony.

Of course, these are just general answers. If you have a specific question, you should call your lawyer, if you have one and if you don’t and you think you might need one, you can always call my office.

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