Depositions are routinely taken in civil court cases and arbitration proceedings as part of the discovery process. This article answers seven frequently asked questions about depositions.
What is a Deposition?
A deposition is a method of discovery[1] in which a party to a civil lawsuit or arbitration proceeding may ask questions of the other party, third parties, or expert witnesses in person under oath. There are two types of depositions: depositions upon oral examination and depositions upon written questions.
- What is a deposition upon oral examination? A deposition upon oral examination takes place in person with one party asking the person called to answer the questions (“the deponent”) questions under oath. The answers to the questions are recorded or taken down by a court reporter.
- What is a deposition upon written questions? An examination upon written questions also takes place in person. However, prior to the deposition, the deponent is provided with a list of written questions. A court reporter then reads each question to the deponent under oath and records or takes down the answer.
Who Attends a Deposition?
A deposition is typically attended by the lawyers for each of the parties, the deponent, and a court reporter.
How does a deposition proceed?
A deposition begins with the court reporter administering an oath to the deponent. The lawyer for the party taking the deposition then asks the deponent questions and the deponent answers the questions. The deponent’s lawyer may make legal objections to the questions before the deponent answers them. If a question seeks privileged or other protected information,[2] the deponent’s lawyer may instruct the deponent not to answer the question. The deponent’s lawyer may also ask the deponent questions when the other party’s lawyer is finished with the examination.
What is an objection?
The deponent’s lawyer may assert legal objections to the form of the question, assert a privilege, enforce a limitation on evidence directed by a court or arbitrator, or terminate a bad faith deposition.
How Long is a Deposition?
The length of a deposition varies. However, depositions are time-limited and cannot exceed a set number of hours. The participants may, however, take breaks, as needed.
What Happens After A Deposition?
When the deposition has ended, the court reporter transcribes the questions and answers. A written draft transcript of the deposition is then given to the deponent to review. During the review period, the deponent may ask the court reporter to correct typographical or other minor errors. The court reporter then finalizes the transcript and seals it for later use at a trial or hearing.
How is a Deposition Used in Civil Litigation
Deposition testimony may be used as evidence in a court or arbitration in support of motions, briefs, and legal arguments. Deposition testimony may also be used to cross-examine a witness at trial or in a hearing. In some instances, a deposition transcript may also be used to preserve the testimony of someone who is unable to attend a trial or hearing in person.
Our Team
Our Litigation Group has collectively taken and defended thousands of depositions in court cases and arbitration proceedings.
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[1] To learn more about discovery read BHGR’s Discovery in Civil Cases.
[2] “Privileged information” in discovery refers to confidential documents and communications between specific individuals with special relationships such as attorneys and clients, doctors and patients, or spouses. “Protected information” in discovery refers to confidential information such as an attorney’s work product and, if they are not in dispute, information such as a company’s trade secrets, private health information, social security numbers, or driver’s license numbers.