Three-Minute Legal Tips: Preparing for a Deposition
Taking depositions is one of the most common methods of discovery, as statements given under oath enables parties to know in advance what a witness will say at a trial. Remote depositions are more commonplace during the COVID-19 pandemic, but the nature of a deposition remains the same.
In three minutes, Jeff Feldman, professor of practice and co-director of the Appellate Advocacy Clinic, explains what to expect in the deposition process, who will be present, how to prepare for a deposition and what happens afterward. He also suggests tips for someone being deposed.
Read the transcript
Jeff Feldman: Hi, I'm Jeff Feldman. I'm a law professor at the University of Washington School of Law, where I teach courses in civil procedure, constitutional law and trial practice.
Three-Minute Legal Tips: What is a deposition?
JF: A deposition is an opportunity for parties in a civil lawsuit to obtain testimony from a witness under oath prior to trial. It's part of the discovery process by which parties gather facts and information so they can be better prepared at trial to present their claims and defenses.
TMLT: Can you tell us more about the deposition process?
JF: Usually, depositions are held in the offices of one of the lawyers in the case. After the witness is placed under oath, each party is given an opportunity to ask questions and obtain answers about the issues that are raised in the case. Usually, depositions last a maximum of seven hours, but most depositions actually last a bit less than that.
TMLT: How are they recorded?
JF: A certified court reporter prepares and creates a transcript of the questions and the answers. Many depositions are also recorded by video and these days, since the onset of COVID-19, we see a lot of depositions being taken over Zoom.
TMLT: Who will be present at a deposition?
JF: Usually only the parties, the witness, their lawyers and a court reporter will be present. Sometimes, we also see paralegals, investigators or even expert witnesses who have been retained also attend.
TMLT: How should someone prepare before going into a deposition?
JF: If you're represented by a lawyer, you will meet in advance of the deposition and go over things like the court rules that govern how depositions are taken, questions you're likely to be asked by the opposing lawyer, documents that you may be shown and questioned about and you'll get some general guidance on how best to answer questions and how to conduct yourself in the deposition. If you're not a party and you don't have a lawyer of your own, you'll likely go over the same information with the lawyer who has scheduled your deposition and who is seeking your testimony in the case.
TMLT: What are some tips for someone who is being deposed?
JF: Well the first tip, of course, is the most obvious one, which is tell the truth. You're going to be under oath and, as everybody knows, there are significant penalties that attach when you testify falsely when you're under oath. Listen to the question, answer to the best of your ability, answer the question fully, but try and stay within what the question fairly asks for, lawyers know how to ask questions and if there's a need for follow-up they will ask additional questions. Volunteering information that's not requested by the question usually just makes the process take longer. Don't guess, don't speculate, unless you're asked to. Don't be afraid to say, "I don't know," if, in fact, you really don't know. You're not expected to know everything and the only way that lawyers have to figure out what a witness knows and what a witness doesn't know is to ask questions and test the witness’s knowledge and memory. Try not to talk too fast because the court reporter has to take this all down and try and be polite, even if those around you, in any given moment, may not be.
TMLT: Is there anything a person should do after the deposition?
JF: It's likely that the deposition will be transcribed by the court reporter and, if so, you'll be given a copy of the written transcript and given a chance to review and sign it. Take the opportunity to review the transcript carefully. Sometimes court reporters make errors in transcription and sometimes witnesses just say things wrong by mistake. You might say, for example, that the car was black when you actually meant to say that it was blue. Whether the error was by the court reporter in the transcription or by you and your testimony, take the opportunity to correct the transcript and get it right. Make sure that the transcript, at the very end, accurately reflects your testimony to the very best of your ability.