Depositions of high-profile people are much in the news these days. President Donald Trump, for one, faces the prospect of being deposed by Special Counsel Robert Mueller’s team of FBI interviewers. Meanwhile, attorneys for former NFL star Colin Kaepernick want to depose pizza mogul “Papa John” Schnatter in connection with Kaepernick’s collusion case against the NFL. And it isn’t just big-name politicians or businessmen who get deposed. Depositions happen all the time, in legal disputes large and small, but the process remains unfamiliar to many.
How depositions work
Simply put, a deposition is an out-of-court session where a witness (known as the deponent) gives sworn testimony. Lying during deposition thus constitutes perjury, but untruthful deponents rarely face charges. Instead, their falsehoods often work to the advantage of the opposing side. And in some case, there can be enormous unexpected consequences for a dissembling witness – just ask Bill Clinton, whose lie during a deposition in a sexual harassment lawsuit led to his impeachment.
Testimony given during a deposition is not the same, however, as testimony given at a trial. By its very nature, deposition testimony is hearsay, meaning it can’t just be submitted to the court as proof of underlying facts in the deposition. For example, if a person says, “Jane owes me $20” during a deposition, that sworn statement would not be admissible in court to prove Jane’s $20 debt. (There are some exceptions that allow hearsay testimony to be admitted at trial, but these are beyond the scope of this discussion.)
Depositions constitute a routine part of discovery, the process whereby attorneys gather evidence in a dispute. They allow attorneys to get new information, but, almost as importantly, they enable lawyers to confirm things they think they already know. Occasionally, but not customarily, the witness will receive the deposition questions ahead of time. The witness’s answers are recorded by a court reporter. Sometimes the deposition is videotaped or audio recorded.
What should a witness expect at a deposition?
Being deposed is serious business. A witness should spend time with their lawyer preparing for the deposition. That attorney will give the client the lay of the land: what to expect with the room and the set-up, insight on the attorneys who will be asking the questions, and an idea of the sort of queries to expect.
Attorneys often run a client through a practice deposition, which gives the prospective witness some peace of mind and helps to identify any gaps in the client’s answers. Depositions aren’t meant to be “gotcha” sessions – few cases are “won” in a deposition – but imprecise, incorrect, or misleading answers can be a setback. Whether taken during a high-profile case or in a lawsuit over a fender bender, depositions are key to gathering data and getting to the facts, and they make up a critical part of our legal system.