Depositions: What Are They and How Do They Work?

There are 3 parts to any piece of litigation in a basic sense: the pleadings, discovery, and trial.  This is true whether you are in court or a private arbitration.  The pleadings outline the legal theories and arguments each side has for their position in the case.  Discovery then proceeds to ensure the parties are provided the opportunity to collect evidence from others and test their legal theories against the evidence available.  Finally, the case goes to trial if it does not settle.

Depositions are part of the discovery process.  They usually come after written discovery that includes the exchange of documents and before trial.  In effect, these are sessions in which a witness is brought in to give oral testimony.  The lawyers in the case are permitted to ask questions of the witness and explore issues that are relevant to the case or which might reasonably lead to the discovery of admissible evidence.  This broader standard gives lawyers a little more leeway than what is provided for under the rules of evidence at trial.

Traditionally, depositions were done in person around a conference room table.  They are still done this way; but videoconferencing is becoming increasingly popular.  Regardless of whether the deposition is in person or virtual, the witness is sworn in as if testifying in court.  Testimony is given under oath and is subject to both perjury and future cross examination at trial.  In fact, deposition testimony is commonly used to discredit witnesses when they testify at trial by using contradictory testimony at depositions. 

Some cases have quite a few depositions.  Others have very few.  The number of depositions is usually driven by how most of the evidence in the case has to be gathered and presented.  If most of the evidence is or has to be given orally, then there will be more depositions.  Documenting projects appropriately – which I have advocated for a long time is critical to successful litigation – will often help manage the evidence in a way that both eliminates the need for as many depositions and makes necessary depositions more efficient.

In closing depositions are critical parts of a case.  They are, however, nothing to be afraid of in the larger picture.  Depositions present a chance to put forward a compelling and accurate picture of case if you are properly prepared.