Civil Litigation
A plain-language guide to your first deposition
You will probably be deposed
If you are a party to a civil lawsuit — as plaintiff or defendant — there is a good chance you will be deposed. If you are a key witness in someone else’s lawsuit, the same. Depositions are one of the most useful tools in the discovery process, and lawyers on both sides use them routinely to understand what witnesses know, lock in testimony for trial, and evaluate the case for settlement.
For most people, the first deposition is also the first time they have ever been under oath outside a wedding or a citizenship ceremony. The experience is not what most people expect. Television depictions are misleading; the real thing is more procedural, less dramatic, and more demanding of patience than of cleverness.
This article walks through what a deposition actually is, what to expect on the day, what is being looked for, and the most useful preparation a witness can do beforehand. It is written for people who have never been to one and are either preparing for one in their own case or wondering what their lawyer is talking about.
What a deposition is
A deposition is sworn out-of-court testimony given before a court reporter, in response to questions from one or more lawyers. The witness is under the same oath as a witness at trial. The court reporter creates a verbatim transcript that becomes part of the case record, and (in most cases) the deposition is also video-recorded.
The setting is usually a conference room in one of the lawyers’ offices, sometimes a court reporter’s offices, occasionally a remote video setup. There is no judge present. The witness is questioned by the opposing lawyer; the witness’s own lawyer sits next to them, takes notes, and makes objections when appropriate.
A deposition has two main purposes. First, discovery — finding out what the witness knows, what evidence they can authenticate, who else might have relevant information. Second, preservation — locking in the witness’s testimony in a form that can be used at trial, either to refresh recollection, impeach inconsistent testimony, or (in some circumstances) be read to the jury directly.
What it is not
A deposition is not a trial. The questioner is not trying to convince a jury; they are trying to gather information and lock in your story. There is no judge to rule on most disputes in real time, which is why depositions can sometimes feel uncomfortable in ways that a trial cross-examination is not.
A deposition is not a conversation. You are not there to be friendly, to explain things you weren’t asked about, or to volunteer your view of what the case is about. The questioner is not your friend, even if they are skilled at sounding like one.
A deposition is not a memory test. You are entitled to say “I don’t recall,” and you should say it when it is true. You are not required to guess. You are not required to remember things you don’t remember.
Who will be there
In a typical civil deposition:
- The witness — you.
- The opposing party’s lawyer — the questioner.
- Your lawyer — sitting next to you, listening, objecting when appropriate.
- The court reporter — taking down everything that is said.
- Sometimes a videographer — running the video.
- Sometimes the parties themselves — opposing parties have a right to attend.
- Sometimes other witnesses’ lawyers — in multi-party cases, every party gets to send a lawyer.
The room can feel crowded. That is normal.
The basic flow of the day
You arrive a little before the scheduled start time. Your lawyer will likely have done a final pre-deposition meeting in the days or hours before — going over the topics, reviewing key documents, talking through the rules.
The court reporter swears you in. The questioning lawyer typically begins with a series of “ground rules” questions: confirming you understand you are under oath, asking whether you are on any medication that would affect your ability to testify, asking whether you have ever been deposed before, asking you to please give verbal answers (not nods) so the reporter can take down what you say. They will ask you to wait for the question to finish before answering, both so the reporter can keep up and so the record is clean.
Then the substantive questioning begins. It typically follows a chronological or topical structure: background information about you, your role in the events at issue, your knowledge of specific events, your interactions with key people, your review of documents (which the lawyer may show you and ask you about). The lawyer will likely cover the same territory more than once, from different angles, looking for inconsistencies and for new details.
Breaks happen roughly every hour. You can ask for a break at any time except during a pending question — meaning, if a question is on the table, you should answer it before requesting a break. Federal Rule 30 limits depositions to seven hours of testimony in most cases; many state rules are similar. Long depositions can run a full day; shorter ones can be over in two or three hours.
When the opposing lawyer is finished, your own lawyer may or may not ask follow-up questions. (Many defending lawyers do not, on the theory that anything said on the record can become part of the case.) The deposition ends. The reporter prepares a transcript, which you will have a chance to review and correct in the weeks following.
What is being looked for
A skilled questioner is doing several things at once:
- Establishing the basic facts — names, dates, sequences, who was where when, who said what to whom.
- Pinning down your version of the story — so you cannot tell a meaningfully different one at trial.
- Looking for evidence to use — admissions, documents you can authenticate, names of other witnesses to depose.
- Probing for inconsistency — between what you say today and what other witnesses have said, what documents show, or what you have said before.
- Evaluating you as a trial witness — how you come across, whether you are credible, whether the jury will believe you.
You don’t need to outsmart the questioner. You need to tell the truth, narrowly answer what you are asked, and not volunteer.
The rules every witness should know
These are the rules every experienced lawyer talks through with their client before the deposition. They are simple to state and surprisingly hard to follow.
Listen to the question. Listen to the whole question. Many depositions go badly because the witness starts answering the question they expected before the question was finished.
Answer the question that was asked, and only the question that was asked. If the question is “Did you go to the meeting?” the answer is “yes” or “no” — not “yes, and the meeting was about X, and Joe was there, and…” Volunteering hands the questioner free leads to follow up on.
If you don’t understand the question, say so. Ask the lawyer to rephrase. There is no penalty for asking a question to be clarified.
If you don’t know, say so. If you don’t remember, say so. “I don’t know” and “I don’t recall” are honest, complete answers when they are true. They are not weaknesses.
Don’t guess. A guess is not testimony. If you are asked how many times something happened and you don’t know, say you don’t know — even if the lawyer asks you to “estimate.” An honest “I would only be guessing” is the right answer when it is the right answer.
Don’t argue. If the lawyer is wrong about something — about a date, about a fact — correct them once, calmly, and move on. Do not argue. Do not lecture. Do not get angry. If the lawyer is being rude, that is between your lawyer and theirs.
Pause before answering. Two seconds of pause does several things: it gives you time to make sure you understood the question, it gives your lawyer time to object, and it produces a calmer record. It also breaks the rhythm a questioner is trying to set.
Tell the truth, even when it is unhelpful. Especially when it is unhelpful. The fastest way to ruin a case is to be caught in a lie. The second-fastest is to volunteer information no one asked for.
Preparing for it
The single most useful thing you can do is meet with your lawyer enough times beforehand. A solid preparation usually involves:
- Reviewing the operative documents — the complaint, the answer, the key exhibits, your prior written discovery responses.
- Walking through the chronology — out loud, with your lawyer, more than once, until you can describe the events accurately and in your own words.
- A practice deposition — your lawyer asks you the questions opposing counsel is likely to ask, in something like the order they will be asked. This is the single most useful exercise. It uncovers questions you have not thought through, and it lets you practice the rules above before they matter.
- A discussion of likely lines of attack — what is the questioner trying to establish, where are the soft spots in your account, what should you expect to be hammered on.
- A logistical walk-through — where to be, what to wear (business casual is the norm), what to bring (typically nothing — your lawyer brings the documents).
Witnesses who prepare thoroughly do better. Witnesses who do not prepare can derail their own cases in a single afternoon.
After the deposition
In the weeks after, you will receive the transcript and a chance to review it for transcription errors. Your lawyer will review it with you. They will identify points that need to be cleaned up at trial, opportunities the deposition may have created for the other side, and information the deposition gave them about the opposing party’s case. Most cases settle in some part because of what depositions reveal — about the strength of the evidence, the credibility of the witnesses, and the trial value of the case.
A first deposition is rarely fun. Most witnesses describe it as exhausting. With preparation and a clear understanding of what is happening, however, it is also entirely manageable. The witnesses who do best are not the ones with the best memories or the most clever answers. They are the ones who listen carefully, answer narrowly, tell the truth, and trust their own lawyer to do their job.
This article is for general informational purposes only and does not constitute legal advice.