Business Litigation: What is a Deposition?

Depositions are a part of the discovery process. Usually the parties and witnesses will be deposed. Attorneys cannot contact or interview the opposing party or its employees directly because the rules of ethics prohibit such communication. Therefore, attorneys use depositions to obtain testimony from opposing parties and witnesses during lawsuits.

Depositions allow attorneys to learn what the person being deposed knows and how he or she will testify at trial. In addition, the testimony is preserved, and can be used to impeach the witness later if his or her testimony changes. Depositions are part of the discovery phase of a case, during which attorneys are gathering evidence for trial.

During a deposition an attorney takes testimony under oath from a party or witness. Depositions typically take place in law offices. Depositions do not directly involve the court or judges. A court reporter will be present, along with the party or witness being deposed, the attorneys, and other parties who may be present. The court reporter will swear in the party being deposed. Next, the attorney conducting the deposition will begin asking the witness questions. The court reporter will take down everything that is said during the deposition, and will provide a written transcript of the deposition —usually within 5-10 days. The deposition may also be audio or video recorded.

Depositions vary significantly in length depending on the nature of the case. Some depositions may be concluded in just an hour; some may take several hours, or even days.

Lawyers are not allowed to answer questions or testify on behalf of their clients, and may not coach their clients. The deposition is designed to allow lawyers to ask questions, and for witnesses to give sworn responses.