A deposition sounds like a medical procedure, but it’s potentially more painful, and it’s most likely not covered by insurance. Attorneys use depositions for many reasons, most often the reason is to get testimony from deponent – the person being deposed – that can be used during pre-trial litigation. This deposition testimony might be later used in the trial to address inconsistencies, or in pre-trial motions to settle matters that are no longer in dispute. If it’s your first time being deposed, here’s a quick sketch of what happens during a deposition.
Order of Events
Preliminary matters: At the beginning of the deposition, the court reporter will introduce him or herself; state the date, time, and place of the deposition; and state your name. If there is a videographer present, he or she will make similar statements, but also include a statement about the type of recording medium and state the time that the recording begins.
Taking the oath: A deposition taking the sworn testimony of the deponent. That means that an officer who can administer oaths – typically the court reporter – will place you under oath that everything that follows is your sworn testimony about the case, which means that you will tell the truth.
Identify of all present: After you are sworn in, the persons present will introduce themselves, their positions, the party they represent, and the firm they are from so that they are all identified on the record.
Questions: This is the heart of a deposition. It’s why everyone gathered together to the tune of thousands of dollars an hour. They all want to hear your answers to their burning questions. No pressure. Remember, all answers must be truthful to the best of your knowledge.
Objections: A deposing attorney may ask questions about any non-privileged matter that is relevant to the case. Your attorney is responsible for protecting that privilege and will offer up objections to items that are non-discoverable. Objections at depositions are much more limited than those permissible at a trial, so it won’t be like a scene from Law and Order. Once the objection is noted, you will likely provide an answer to the question.
Marking Exhibits: The deposing attorney will likely be showing you photographs, videos, and other documentary exhibits. These exhibits will all be marked before you see them so that when the transcript is reviewed, it will be clear what item you were looking at when you were speaking. After the exhibit is marked, the attorney will refer to that document only by that marking.
End of the Deposition: Once the deposing attorney decides that he or she has asked all the questions he or she wanted to ask, the deposing attorney will end the deposition. The attorney will likely reserve the right to recall you if new questions appear for whatever reason. That doesn’t mean you’ll be deposed again; it just means that the attorney does not want to foreclose the opportunity for further questions.
Cross-Examination: After the attorney who called the deposition finishes, other parties have the opportunity to examine and cross-examine you. These questions are typically limited to the scope of the questions that were asked by the originally deposing attorney.
Re-Direct Examination: After your cross-examination by your attorney, the originally deposing attorney can ask you some more questions to clarify answers that you provided on cross. This is called re-direct examination. The questions posed on re-direct are limited in scope to the questions and answers from the cross-examination.
After the Deposition Ends
After you have been examined, cross-examined, and re-directed, the deposition will end. The attorneys will work out the details of who is paying the court-reporter (typically the attorney who called the deposition). Once the attorneys return to their offices, they will order copies of the transcript for review.
Your Right to Review the Transcript
You have a right under the Federal Rules to review and make changes to the transcript from the deposition. (FRCP 30(e)). If you request this review, you will have 30 days to conduct your review. You have two options: first, you can review the transcript and sign it with an errata sheet, which notes any changes to the form or substance of the testimony and the reason for the change; second: you can sign off that the transcript is correct.
If you need guidance, you should immediately tell your attorney that you want to exercise your right to review the transcript. In most instances, the attorney will ask you to review the transcript as a matter of course to make sure that you got your testimony and opinions stated correctly.