Q: I have been asked to appear at a deposition as a witness in a civil case. What is a deposition?
A: A deposition is a procedure before trial where one party to litigation gathers facts by asking the other party or non-party witnesses to answer questions. If you are called to answer questions at a deposition, you will be known as the “deponent.” Examinations are typically made by asking oral questions, but written questions also may be used. A deposition is typically conducted outside of a courtroom—often in an attorney’s office—but you will testify under oath as you would in court.
Q: May I have an attorney represent me at the deposition?
A: Yes; you are allowed, but not required, to have an attorney represent you when you are deposed. Usually, a person who is being deposed as a party to a case chooses to have representation. You probably will not need representation if you are not a party and it is unlikely you will be named as a party to the litigation, but many people choose to be represented whether or not they are parties to the case.
Q: Who will be with me at the deposition?
A: Your attorney (if you want representation) and the parties’ attorney(s) will be present, and a stenographer and/or a videographer will record the questions and answers. The parties to the case are permitted, but not required, to be present, and if one of the parties is a business or other organization, a representative may appear on behalf of the business or organization. A deposition does not typically take place before a judge, but you should testify as though you were testifying in a courtroom before a judge and jury.
Q: Will I be paid for my time?
A: As a non-party witness, you may be entitled to an attendance fee and mileage, depending on whether the matter is a federal or state court case, and the amount of travel required. The mileage and attendance fees are set by law. Parties to the case are not compensated for the time and travel associated with their depositions.
Q: What should I know before going to a deposition?
A: When answering questions, always be truthful. Be sure you understand each question, or ask for clarification if you do not. You do not need to volunteer information; you only need to answer the question asked.
Q: What if I do not know the answer to a question?
A: Do not speculate or guess. Instead, tell the examiner you do not know the answer.
Q: If my attorney objects to a question during the deposition, must I still answer it?
A: Yes. Your attorney may object to a question so the judge may later rule on whether the question and/or answer was proper and should be admissible at trial. If your attorney instructs you to not answer a question, do not answer it, but if your attorney merely objects to the question, you should answer.
Q: How is a deposition transcript used?
A: A deposition transcript may be used instead of a witness’s live testimony when the witness is considered “unavailable” at trial (if, for example, the witness is deceased or lives outside of the trial court’s jurisdiction and cannot be compelled to appear). A deposition transcript also may be used to impeach a witness who testifies at trial. Attorneys may, for example, point out contradictions between the witnesses’ deposition testimony and trial testimony, or contradictions between the witness’ deposition testimony and other evidence in the case.
Q: What if the opposing attorney does not ask me to testify about something I want to share?
A: Once the opposing attorney examines you, your attorney may, but is not required to, ask you questions. Your attorney may decide to wait until the trial to ask questions, so do not be concerned if questions you consider to be important were not asked during deposition.
Q: What should I do if my deposition transcript contains errors?
A: A deposition transcript may contain transcription errors and/or testimonial errors. A transcription error is a mistake, such as a misspelling or misuse of a word, which the stenographer might make when recording the testimony. A testimonial error occurs when the stenographer correctly records your testimony, but the testimony itself is inaccurate. For example, you may have testified during your deposition that the automobile accident occurred on a Wednesday, but later discovered that it actually took place on a Thursday. Both transcription and testimonial errors should be corrected. A document known as an “errata” sheet may be used to correct these transcript errors.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Terry Brennan, a partner at Baker Hostetler.