What is a deposition?

How it works in practice

It usually happens in a conference room or by video, not a courtroom, with no judge present. Present are the witness, the lawyers for each party, a court reporter and sometimes a videographer; the parties themselves may attend. The reporter swears in the witness, the lawyer who requested the deposition asks questions, and the other lawyers may ask their own questions at the end. Objections are stated briefly for the record, but the witness normally still answers — the judge rules on the objections later if the testimony is used. The main exception is privilege: a lawyer may instruct a witness not to answer a question that would reveal attorney-client communications.

Who can be deposed

Any party to the case, and non-parties with relevant knowledge — eyewitnesses, doctors, former employees, experts. A subpoena can compel a non-party to attend. A corporation can be required to produce a designated witness to speak for the organization on listed topics (a “Rule 30(b)(6)” deposition in federal court), and that witness must be prepared to answer on the company's behalf, not just from personal memory.

Why they matter more than people expect

The transcript locks in the testimony. Saying something different at trial invites impeachment with your own prior words, read back sentence by sentence. Depositions also let each side judge how witnesses come across, and most cases settle after key depositions precisely because both sides can finally see how the witnesses will perform. In personal injury and employment cases, the plaintiff's deposition is often the single most important event before trial.

The rules that govern them

In federal court, a deposition is limited to one day of seven hours of questioning, and each side is normally limited to ten depositions without the court's permission or an agreement. State rules are similar in structure and differ in the details. The witness usually has a chance to review the transcript, typically within 30 days, and submit corrections on an errata sheet — but substantive changes can be commented on at trial.

Watch

How witnesses are prepared

The standard instructions are simple and hard to follow:

• Listen to the whole question and pause before answering.
• Answer only what was asked; do not volunteer.
• Say you do not know or do not remember when that is true; never guess.
• Ask to see a document before testifying about it.
• Ask for clarification if a question is unclear, and correct mistakes on the record as soon as you notice them.
• Stay calm and polite, even when questioning is aggressive.

Preparation is about discipline, not scripting — coaching a witness to give false testimony is improper, lying under oath is perjury, and either can end the case outright.

How long and how much

Simple depositions can take an hour or two; key witnesses in complex cases can take the full day. The side that notices the deposition pays the court reporter, and transcripts are billed per page. Expert witnesses are usually paid their hourly rate by the side taking their deposition.

Using the deposition later

At trial, a deposition can be used to contradict a witness, to refresh memory and, if the witness is dead, too far away or otherwise unavailable, as testimony in place of live appearance — video depositions are often played to the jury. Parts of the other party's deposition can usually be used for any purpose. Depositions also support motions for summary judgment, where one side asks the court to decide the case without a trial.

If you have been subpoenaed

Do not ignore the subpoena. If you are a non-party, you are entitled to a witness fee and mileage, and you may bring your own lawyer. If the date is impossible or the demand is excessive, contact the lawyer who issued it — dates are often rescheduled by agreement, and a court can limit an unreasonable subpoena.

Never bring notes or documents you have not shown your lawyer, since anything used to refresh memory may have to be produced.