What is a deposition, who is there, and what happens to what you say

The short version

A deposition is testimony given under oath, outside a courtroom, before trial. An attorney asks a witness questions, the witness answers, and a certified court reporter takes down every word so that a written transcript exists afterward. There is no judge in the room and no jury. The deposition usually happens in a law office conference room or a court reporting firm's deposition suite, or by videoconference.

Depositions are part of discovery, the phase of a lawsuit in which each side learns what the other side's witnesses know before anyone stands up in court. Lawyers use them to find out the facts, to lock a witness into a version of events, to evaluate how a witness will come across, and to gather testimony from people who may not be available at trial.

How a deposition differs from testifying in court

The oath is the same and the obligation to tell the truth is the same. Almost everything else is different.

• No judge. Objections are stated for the record and, with limited exceptions, the witness answers anyway. A judge rules on them later if the testimony is ever used in court.
• No jury and no audience. The room holds the attorneys, the witness, the reporter, sometimes a videographer or interpreter, and occasionally a party representative.
• The questioning attorney usually represents the other side and has wide latitude to ask about anything that might lead to relevant evidence, which is broader than what is allowed at trial.
• The pace is set by the questioner, not by a court calendar. A deposition can be short or run a full day, and in some cases continues on another day.
• The product is a transcript, not a verdict. Nothing is decided at a deposition. The transcript, and the video if one was made, become evidence that can be used later.

Who is in the room and what each person does

A deposition is quieter and smaller than most people imagine. Here is the cast.

• The witness, also called the deponent: the person answering questions under oath. The witness may be a party to the lawsuit, an employee, an eyewitness, a treating physician, or an expert.
• The examining attorney: the lawyer taking the deposition, usually for the opposing party, who asks most of the questions.
• The defending attorney: the witness's own lawyer, or the lawyer for the party that produced the witness, who may object to the form of questions and may ask follow-up questions at the end.
• The court reporter: a certified, neutral professional who administers the oath, records every word stenographically, marks exhibits, and later produces and certifies the transcript. The reporter works for neither side.
• The legal videographer, when the deposition is video recorded: runs the camera, announces when the record goes on and off, and produces certified video that can later be synchronized to the transcript.
• The interpreter, when the witness testifies in another language: sworn and neutral, rendering every question and answer.
• Occasionally a party representative, such as an insurance adjuster or a corporate officer, who observes and does not speak.

The court reporter is the only person in the room whose sole job is accuracy. Everyone else has a side.

How a deposition unfolds

Once everyone is seated, the court reporter, or the videographer if there is one, states the date, time, case, and appearances on the record. The reporter administers the oath. Counsel may place stipulations on the record, agreements about how exhibits will be handled or whether the witness will review the transcript afterward. Then the examining attorney begins.

Questions typically start with background and move toward the events in dispute. Documents are handed to the witness, marked as exhibits by the reporter, and discussed. Either attorney can ask to go off the record for a break, and the reporter notes the time the record stops and resumes. When the examining attorney is finished, the defending attorney may ask follow-up questions, and the examining attorney may ask more in response. The reporter then closes the record.

Everything said while the record is open goes into the transcript, including false starts, interruptions, and side comments. That is what verbatim means, and it is why witnesses are told to answer out loud, one voice at a time.

The oath and the record

The oath administered by the court reporter carries the same weight as an oath taken in a courtroom. Testimony given under it is sworn testimony, and knowingly false testimony has the same consequences.

The record is the reporter's stenographic notes, which the reporter translates, edits, proofreads, and certifies into the transcript. The reporter's certificate at the back of the transcript attests that it is a true and accurate record of the proceedings. If the deposition was video recorded, the videographer separately certifies the video; the written transcript remains the official record and the two can be synchronized so that testimony plays at trial with the text scrolling beneath it.

How long a deposition takes

It depends on the witness and the case. Some depositions take an hour. A party or expert witness in a complex matter can fill a full day, and some continue to a second day by agreement or court order. Court rules in many jurisdictions set a default limit on the length of a deposition, and the parties can agree to something different; your attorney will know what applies in your case. Witnesses should block the entire day and not schedule anything else.

What happens to the transcript afterward

After the deposition the reporter produces the certified transcript, typically within a standard turnaround that can be shortened for a deadline. The attorneys who order it receive it, with exhibits attached, through the reporting firm's secure portal. In many cases the witness has an opportunity to read the transcript and note corrections on an errata sheet within a set period; the original answers remain part of the record even where a correction is noted.

From there the transcript lives in the case. It is quoted in motions, used to prepare other witnesses, and, if the case goes to trial, used to refresh a witness's memory, to impeach a witness who testifies differently, or, where the rules allow, read or played in place of live testimony. That is why careful testimony in a quiet conference room matters: it may be the testimony a jury hears.

Proceedings that look like depositions

A few other sworn proceedings are reported the same way and are easy to confuse with a deposition.

• Examination under oath: sworn questioning of a policyholder by an insurer under the terms of an insurance policy. It resembles a deposition but is a contractual procedure, not a step in a lawsuit.
• Arbitration hearing: a private hearing before one or more arbitrators who will decide the dispute. Witnesses testify and a reporter often takes the record, but it is a hearing, not discovery.
• Sworn statement or recorded statement: a less formal interview, sometimes under oath and sometimes not, often taken by an investigator or adjuster. Ask your attorney before giving one.

Common questions

Is a deposition the same as going to court?

No. The oath is the same, but a deposition happens in a conference room or by videoconference, before trial, with no judge or jury present. Nothing is decided at a deposition; it produces a transcript that may be used later.

Do I have to attend a deposition?

If you are a party to the case or have been properly served with a subpoena, generally yes. Failing to appear can have serious consequences. If you have questions about whether you must attend, ask an attorney promptly.

Can I bring my own lawyer?

Yes. A witness who is not a party may bring their own attorney, and parties are almost always represented. The attorney can object to improper questions and advise you during breaks.

Who is the court reporter working for?

Neither side. The court reporter is a neutral certified professional whose only job is an accurate record. The reporting firm is usually retained by the party taking the deposition, but the reporter's duty is to the record.

Will there be a video camera?

Sometimes. The notice of deposition states whether the deposition will be video recorded. When it is, a legal videographer runs the camera and announces when the record goes on and off, and the written transcript remains the official record.

What should I do to prepare?

Meet with your attorney, review only the documents your attorney selects, get a good night's sleep, and read our guide on how to prepare for a deposition, which includes a printable checklist.