In law, being deposed means you have been called to answer questions under oath, on the record, outside of a courtroom, as part of a lawsuit’s information-gathering phase. That session is called a deposition. A court reporter swears you in, an attorney asks questions, and everything you say is transcribed and often videotaped. Your answers carry the same legal weight as testimony given in front of a judge and jury.
Depositions happen during discovery, the stretch of a civil case that runs after the complaint and answer have been filed but before trial. Lawyers use them when written questions and document requests aren’t enough — when they need to watch a witness answer in real time, press on evasive responses, and lock in a version of events that the witness will have to live with later.
What Happens During a Deposition
A deposition usually takes place in a conference room at a law office, not a courthouse. A court reporter administers the oath and records every word. Some depositions are also videotaped, which matters if a jury may later watch the footage.
The attorney who scheduled the deposition asks questions first, and the other side’s attorney can follow up afterward. In federal court, a single deposition is capped at one day of seven hours unless the parties agree to more or a judge orders it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
Objections happen, but the rules keep them short. An attorney can object concisely, without being argumentative or suggestive, and can instruct a witness not to answer only in three narrow situations: to protect a privilege such as attorney-client communications, to enforce a limitation the court has already imposed, or to buy time to move for a protective order against abusive questioning.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Outside those three situations, you must answer the question even if your lawyer objects.
Remote depositions by video conference have become common, so you may find yourself sworn in over a webcam rather than across a conference table.
Who Can Be Deposed
Almost anyone with information relevant to the lawsuit can be deposed, whether or not they are a party to the case. How someone is compelled to attend depends on their relationship to the litigation.
- A party to the lawsuit, or its officers, can be required to appear anywhere within the state where they reside, work, or regularly do business.
- A non-party witness can only be compelled to attend within 100 miles of where they live, work, or regularly conduct business in person. Beyond that radius, the attorney needs voluntary cooperation or a court order.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
- When a business or other organization is named, the deposing attorney lists the topics to be covered, and the organization designates one or more people to testify on its behalf. Those representatives must be prepared to speak to the organization’s collective knowledge.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
Non-party witnesses are brought in through a subpoena, which must be personally served along with the statutory witness fee of $40 per day plus mileage reimbursement.3Office of the Law Revision Counsel. 28 U.S. Code 1821 – Per Diem and Mileage Generally The fee is modest, but tendering it is a legal requirement. A subpoena served without it can be challenged.
Expert witnesses follow a different rhythm. Before an expert can be deposed, the side that hired them must disclose a written report laying out every opinion the expert intends to offer, the basis for each opinion, and the expert’s qualifications and compensation. Fact witnesses have no equivalent report requirement, so questioning of a lay witness tends to be more open-ended.
How to Handle Being Deposed
If you have been told you’re being deposed, understand what the day is and what it isn’t. It isn’t a conversation. It isn’t a meeting where you explain your side. It’s a formal proceeding in which the opposing attorney is trying to get you talking, and every word you say is being recorded for later use.
A few habits protect witnesses:
- Answer only the question asked. Don’t volunteer extra context, don’t guess, and don’t try to explain away something that sounds bad.
- If a question confuses you, say so and ask the attorney to rephrase it.
- If you don’t know the answer, say “I don’t know.” If you don’t remember, say “I don’t recall.” Both are legitimate answers and far safer than speculation.
- Pause before answering. That gives your attorney a moment to object if needed and gives you a moment to think.
Your own attorney can and should prepare you beforehand by reviewing relevant documents, walking through likely questions, and running practice sessions. That kind of preparation is expected. There’s a line, though: your lawyer can refresh your memory and explain the process, but cannot tell you what to say, encourage you to leave out important facts, or suggest that remembering less would be helpful.
Demeanor matters more than most witnesses expect. If the deposition is videotaped, a jury may eventually watch it. Staying calm, keeping eye contact with the camera, and not showing frustration all count. Witnesses who come across as evasive or hostile on tape tend to hurt their own side even when their answers are technically fine.
What Your Testimony Can Be Used For
A deposition transcript doesn’t sit on a shelf. It becomes evidence that either side can use in several ways.
- Impeachment. If you say one thing at your deposition and something different at trial, opposing counsel can read the earlier answer back to you in front of the jury. Being caught contradicting yourself under oath damages credibility quickly.4Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
- Party admissions. If you are a party to the lawsuit (or an officer, director, or organizational representative), the opposing side can use any part of your transcript for any purpose at trial, not only to impeach.4Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
- Substitute for live testimony. If a witness dies, becomes seriously ill, moves more than 100 miles from the courthouse, or otherwise cannot appear, their deposition can be read in at trial.4Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
- Summary judgment. Courts can consider deposition transcripts when deciding whether the case has a real factual dispute or should end without a trial. Strong deposition testimony can support a motion that ends the lawsuit before it reaches a jury.5Cornell Law School. Federal Rules of Civil Procedure Rule 56 – Summary Judgment
Depositions also drive settlement. Once both sides have questioned the key witnesses, each has a much clearer read on the case’s strengths and weaknesses. A witness who falls apart under questioning often prompts the other side to settle rather than take the risk to trial.
Reviewing and Correcting the Transcript
You have a right to read the transcript before it becomes final, but only if you or a party requests that review before the deposition ends. If the request is made, you get 30 days after being told the transcript is available to look it over and submit any changes along with the reason for each one.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
What kinds of changes are allowed is contested. Courts agree that fixing typos and clear transcription errors is fine. They disagree over whether a witness can make substantive changes that alter the meaning of an answer. Some courts allow broad changes on the theory that both the original and the correction remain on the record and the opposing side can reopen the deposition. Others take a stricter view and hold that the review process exists to correct the transcript, not to rewrite damaging testimony. If you realize during review that something you said was wrong, talk to your attorney about strategy before submitting the change, because a contradictory correction may invite scrutiny and may not survive a challenge.
What Happens If You Refuse
Ignoring a deposition subpoena is a risky move. If a non-party witness who has been properly served simply doesn’t appear, the court can hold them in contempt, which can carry fines or jail time.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena A witness who shows up but refuses to answer after a court has ordered them to do so can also face contempt.6Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 37 – Failure to Make or Cooperate in Discovery; Sanctions
The stakes climb higher for parties. When a party to the lawsuit refuses to cooperate with discovery, a judge can order that certain facts be treated as established against them, bar them from presenting evidence on certain issues, strike their pleadings, or enter default judgment against them. Courts will usually also require the non-compliant party or their attorney to pay the other side’s reasonable expenses, including attorney’s fees, caused by the failure.6Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 37 – Failure to Make or Cooperate in Discovery; Sanctions
If you have been served with a subpoena and you think you have a legitimate reason not to appear or not to answer, that reason belongs in a motion to quash or a protective order filed before the date of the deposition, not in a decision to skip the day.