Deposition

A deposition is a method of discovery that is used to gather or obtain facts and information that may be relevant to a pending lawsuit. During a deposition, one party to a suit, or, more commonly, the party’s lawyer, asks questions of the other party, the other party’s witnesses, or any other person who may have knowledge or information that is relevant to the case. Although depositions may be conducted through written questions or orally, they are almost always taken orally rather than in writing. Depositions generally take place outside the courtroom. Most often, depositions are conducted in a lawyer’s office.

The person that is asked the questions during the deposition is referred to as the “deponent.” The deponent’s testimony is given under oath and, more often than not, in the presence of his or her own lawyer. A transcript, a word-for-word account of the entire proceeding, is prepared by a court reporter, who is also present at the deposition and usually authorized to administer the oath. The deponent’s lawyer may pose objections to the questions that are asked of his or her client; however, because the permissible scope of the deposition is very broad and, absent some very limited exceptions, the rules of evidence do not apply during depositions, the grounds for objection are relatively narrow.

To this same end, the only time the deponent’s lawyer may instruct the deponent not to answer a question is when it is necessary to preserve a privilege or to enforce certain limitations that may have been previously imposed by the court. The deponent is subject to cross examination, in that the deponent’s own lawyer as well as any other lawyer present may ask questions of the deponent. Once the deposition is completed and the transcript is prepared by the court reporter, the deponent may be given an opportunity to review the transcript and request that the court reporter make any corrections that the deponent believes are necessary. Even so, in order to make a correction to the transcript, the deponent must offer justifications as to why he or she believes the correction is necessary. The court reporter will disregard any correction that is unsupported by a valid justification.

As noted above, a deposition is a method of discovery. It, along with written interrogatories, requests for documents, requests for admissions, and mental and physical examinations, takes place before trial during the discovery phase of a lawsuit. The so-called discovery phase begins after the filings of the initial pleadings, that is, after the plaintiff’s complaint and the defendant’s answer. This phase is the period in which the parties gather facts, testimony, documents, and other physical evidence that may be useful for trial or for preparing dispositive motions such as requests for summary judgment.

As a method of discovery, depositions serve a number of useful purposes and can be expected in almost every lawsuit that proceeds into the discovery phase. They are used by the parties to determine the full extent of a particular witness’s knowledge, and because deposition testimony may be admissible at trial, to commit a witness to a certain position. If at trial witnesses give testimony that is inconsistent with their deposition testimony, they may be impeached and the credibility of their testimony attacked. Moreover, depositions allow the parties to understand and anticipate the facts and evidence that will be used by their opponents, which allows them to evaluate the strength of their own cases. In allowing parties to evaluate the strength of their own cases relative to those of their opponents, testimony or information obtained through depositions also allows parties to assess whether settlement or even dismissal are preferable to trial.

Insofar as depositions are so widely used to gather facts, information, and testimony before trial, they should be expected to occur in any education-related lawsuit that proceeds to the discovery phase. Teachers, administrators, and other school officials that may have facts or information regarding the incident or incidents that prompted the lawsuit may be deposed. Those same individuals may also be asked to review the deposition testimony of other witnesses to evaluate whether their understandings of relevant events matches that of deponents.

Christopher D. Shaw

See also Electronic Document Retention; Interrogatory

Further Readings

  • Black, H. C., & publisher’s editorial staff (1990). Black’s Law Dictionary (6th ed.). Saint Paul, MN: West. 
  • Members of the firm of McCutchen, Doyle, Brown, & Enersen, et al. (1985). Federal litigation guide. New York: Mathew Bender.