Depositions

Most lawsuits include at least one deposition, or formal interview, of one or both of the parties to the lawsuit. The person being deposed is called the "deponent." Anyone can be deposed; you do not have to be a party to the lawsuit to be deposed. For example, witnesses in car wreck cases are routinely deposed. All depositions require formal notification known as the Notice of Deposition.

Anything said in a deposition is sworn testimony, made under oath, just as if the person was in the courtroom before a judge and in the witness chair. Lawyers for both sides are present. The lawyer for the party who requested the deposition questions or "examines" the deponent first. When the initial examination is over, the lawyer for the opposing side questions the deponent (usually his client), hoping to correct mistakes or provide additional explanation.

Do I have to travel out of state to give a deposition?

No. Typically, the deponent is not required to travel beyond the court's jurisdiction, or a certain distance. The person who wants to depose you usually must come to you.

TIP: The Rules of Civil Procedure control how depositions are to be handled. Each state has its own set of Rules of Civil Procedure.

Who pays my expenses?

The party requesting the deposition generally pays your expenses.

Can I get a copy of my deposition?

Yes. If you are a party to the lawsuit, your lawyer will provide you with one. However, if you are not a party, you may have to request one directly from the court reporter.

TIP: A copy of a deposition costs at least $100. Lengthy depositions may cost several hundred dollars.

Can I refuse to be videotaped?

No. Unless your attorney files a motion with the court and the court orders no videotaping, you will probably be videotaped.

TIP: Videotaping is standard procedure because voice inflection, facial expression and body language may be pivotal in how a jury perceives the deponent. For example, a deponent's hesitant answers may come across as untruthful in videotape. That same hesitancy does not come across in purely written form.

Can I talk to my lawyer during the deposition?

Yes. However, excessive conversations may be limited by a court order if you are perceived to be purposely disrupting the flow of the deposition.

I am too upset to continue my deposition. Can I stop?

Yes. Generally, lawyers will not require a deponent to continue to testify when she is too emotional to answer accurately.

Sidebar: The lawyer taking the deposition is not required to stop the deposition in consideration of the deponent's feelings. However, if she insists, the deponent's lawyer may object, end the deposition and let the judge decide later if stopping the deposition was proper.

Can I refer to my notes during the deposition?

Yes. You can refer to almost anything during your deposition, and the lawyer deposing you has the right to examine them if you do. Thus, it is highly inadvisable to take in personal notes because, once you use them, the notes are considered "discoverable."

Can I refuse to answer a question?

Yes. However, you may be later sanctioned by the judge for your refusal to cooperate.

Sidebar: Generally, the deponent's lawyer objects to a question for a specific reason and refuses to let the client answer. The judge rules later whether the objection was appropriate. If the objection is overruled, the question must be answered.

Can my sister sit in on the deposition with me for support?

No. Only named parties to a lawsuit and their attorneys are allowed to present during a deposition.

TIP: Minors are allowed to have a parent, guardian or court advocate present.

If it is difficult for me to understand English, can I have an interpreter present?

Yes. In fact, your entire testimony may be inadmissible if it is later shown that you did not understand the questions because you were not provided with an interpreter.

TIP: The party requesting the deposition pays for the interpreter. During the actual trial, the court provides the interpreter.

Now that my deposition is over, what is my lawyer going to do with it?

Your lawyer uses your deposition testimony to get you ready for trial. What was said in the deposition must agree with your trial testimony or the inconsistencies will be pointed out by the opposing side to discredit you.