What is a Deposition and Why Does it Matter?

A deposition is a highly structured, formal legal proceeding involving a case in litigation. A deposition occurs when one side demands that a person on the other side of the case—or an independent witness to events– appear to answer questions. A deposition is a technical, legal process. The proceeding occurs either at a lawyer’s office or at a court reporters’ office. The format is determined in advance in writing, where a court reporter is present, taking down every spoken word at the deposition on a machine. The witness swears to tell the truth and is asked a series of questions by the opposing lawyer. Sometimes both lawyers ask questions of the witness—for example, an independent witness who had seen, heard or participated in some events. In those depositions, the lawyers take turns asking questions, the lawyer that set the deposition starting the questioning.

If you are going to be deposed, you must be prepared for the experience. If your lawyer is going to take the deposition of the other party or the witness, that lawyer must have enough experience to know what to ask, when to ask it, and what to do when the witness either proves evasive or refuses to answer the question. The best way to be prepared is to have your lawyer ask you in advance all of the questions it is anticipated that the other lawyer will ask you in the deposition. That way, you are not surprised by the questioning and you are able to give your responses proper thought.  If you are not properly prepared, you are more likely to provide confusing or even inaccurate testimony.

How does your lawyer know to ask you all of the questions that the opposing lawyer may ask? If your lawyer has taken and defended enough depositions, that lawyer will know what questions are likely to come up in the deposition. Your lawyer must have enough experience with depositions to anticipate, with a high probability, which questions may be asked.

If your lawyer is going to depose the other side or a witness, your lawyer must know what to ask, when to ask it and how to address witnesses that either refuse to answer the question or offer evasive answers. Although depositions involve witnesses who are sworn to tell the truth in answering questions, there is no guidance offered on how to ask the question, what to ask or how tactically to conduct the deposition.

A well-trained lawyer, who has taken and defended hundreds of depositions over many years or even decades, through that experience should know tactically how to conduct the deposition. The experienced lawyer knows which questions to ask, how to elicit the information needed and how to tackle witnesses that provide evasive, or even refuse to answer questions. If the lawyer lacks experience, the right questions may not even be asked, the necessary evidence may not be discovered and your case may suffer.

If you anticipate that your case will involve depositions, and particularly if much of the evidence is based upon what people saw, heard or said, as opposed to what was written down, ensuring that your lawyer has sufficient experience both taking depositions and defending witnesses in deposition is an important part of your litigation.