What Depositions Are and How They Work: Process, Refusals, and Costs

A deposition is sworn, out-of-court testimony taken during the discovery phase of a lawsuit. An attorney questions a witness under oath in a private setting, usually a conference room or law office, while a court reporter captures every word. No judge is present. Understanding what a deposition is and how it works comes down to this: because the witness swears the same oath used at trial, the answers carry the same legal weight as courtroom testimony and can be used later as evidence, to contradict the witness on the stand, or as a substitute for live testimony.

Depositions serve two practical purposes for the lawyers running them. They lock in a witness’s version of events so nothing comes as a surprise at trial, and they let each side test the strength of the other side’s case before deciding whether to settle or fight.

Who Can Be Deposed and How They’re Compelled

Anyone with relevant knowledge about a case can be deposed. What differs is how they’re required to attend.

A party to the lawsuit, meaning the plaintiff or defendant, can be compelled to appear by a written notice stating the time and place.¹ A non-party witness must be served with a subpoena under Federal Rule of Civil Procedure 45, and that subpoena can only require the witness to travel within 100 miles of where they live, work, or regularly do business.²

When the deponent is a corporation, partnership, or government agency, the organization designates one or more people to testify on its behalf about the topics listed in the notice. Those designees must testify about information the organization knows or could reasonably obtain, not just their own personal knowledge, which typically means interviewing colleagues and reviewing internal records beforehand.¹ Showing up unprepared is treated the same as not showing up at all.

Under federal rules, each side is capped at 10 depositions total, counting both oral and written-question depositions. Going beyond 10 requires a written agreement between the parties or an order from the court.¹

Who Is in the Room

Four roles fill most depositions.

The deponent is the person answering questions under oath. The examining attorney, sitting across the table, represents the party seeking information. Their job is to pin down facts, probe memory, and surface inconsistencies that could matter at trial. The defending attorney sits alongside the deponent, monitors the questions, raises objections, and protects the deponent from harassment or improper questioning. That attorney cannot coach the witness on how to answer, but in narrow circumstances can instruct the deponent not to answer.

A court reporter is always present. The reporter administers the oath, then uses a specialized shorthand machine to create a verbatim record of every question, answer, and objection in real time.³ The reporter’s presence is what gives the proceeding its formal legal character even without a judge in the room.

What Happens During the Session

The deposition officially begins when the reporter places the deponent under oath, exactly as a witness would be sworn in at trial. The reporter also states the date, time, location, and the names of everyone present for the record.¹

The examining attorney then starts asking questions. Early questions cover background: your name, your work, your connection to the events in the lawsuit. From there, the questioning narrows toward the disputed facts. Expect questions that feel repetitive or overly detailed. The attorney is building a record and closing off future wiggle room, so the granularity is deliberate.

Your own attorney may object to specific questions on legal grounds. Depositions differ sharply from trial in what happens next: you usually still have to answer, because no judge is present to rule on the objection. The objection is preserved on the record for a judge to consider later if the testimony is offered as evidence. Your attorney can instruct you not to answer only to protect a privilege, to enforce a court-ordered limit, or when a question is so plainly improper that answering would cause serious prejudice.¹

Once the examining attorney finishes, the defending attorney may ask follow-up questions to clarify the record or address points that came out poorly. When everyone has finished, the reporter closes the record.

How Long a Deposition Takes

Under federal rules, a deposition is limited to one day of seven hours unless the parties agree otherwise or a court orders more time. Lunch and other breaks don’t count toward the seven hours, so the calendar day is usually longer than the questioning itself. A court can authorize additional time when the case is complex enough that seven hours is not enough for a fair examination, or when the deponent or another person stalls or obstructs the questioning.¹ State courts sometimes set different default limits, so check the local rules if your case is in state court.

The Transcript, Video, and Your Right to Review

The court reporter’s stenographic transcript becomes the primary record. Every question, answer, and objection is captured word for word, and the finished transcript is what attorneys use to prepare for trial, draft motions, or challenge a witness’s credibility.

Many depositions are also recorded on video, which preserves tone, hesitation, and body language that a written transcript cannot show. The party scheduling the deposition must state the recording method in the notice, and any other party can arrange an additional recording method at their own expense with prior notice.¹ The recording cannot distort anyone’s appearance or demeanor.

You have the right to review the transcript. If you or any party requests review before the deposition ends, you have 30 days after being notified the transcript is ready to read it, note any errors, and sign a statement listing the changes and the reasons for them.¹ This is not an opportunity to rewrite your testimony. It exists to correct transcription mistakes or clarify something you misspoke about. Substantive changes will draw scrutiny, and the original answers stay in the record next to any corrections.

Once your words are on the transcript, changing your story at trial becomes extremely difficult. That single fact drives most of what makes depositions high-stakes.

Your Obligation to Answer, and When You Can Refuse

You are under oath, so everything you say carries the same legal weight as testimony from the witness stand. Knowingly providing false information is perjury, a federal felony punishable by up to five years in prison and fines up to $250,000.⁴⁵ State perjury penalties vary but are similarly severe. The obligation is to answer completely and honestly, without volunteering information and without being evasive.

The default is that you answer every question. Several recognized privileges create exceptions:

Attorney-client privilege. Confidential communications with your lawyer made to obtain or provide legal advice are protected. The communication must have been intended as confidential and actually kept confidential. Business advice does not qualify, even if a lawyer gave it.
Work product doctrine. Materials prepared in anticipation of litigation are generally shielded, and the protection is strongest for materials reflecting an attorney’s mental impressions, conclusions, and legal theories. The other side can overcome the protection only by showing a substantial need and an inability to obtain equivalent information elsewhere.⁶
Fifth Amendment. Even in a civil deposition, you can invoke your right against self-incrimination if answering a question could expose you to criminal prosecution. The privilege must be asserted question by question, not as a blanket refusal. A court can overrule the invocation if it finds no realistic risk of incrimination.
Spousal privilege. Confidential communications during a valid marriage are generally protected in both civil and criminal proceedings, and the privilege typically survives divorce. It does not apply when spouses are suing each other.

If your attorney believes a question invades a privilege, they will instruct you not to answer and state the basis on the record. The opposing attorney can then seek a court order compelling the answer, and a judge decides whether the privilege applies.

What Happens If You Don’t Show Up or Won’t Answer

Skipping a properly noticed deposition carries real consequences. If a party or a designated organizational representative fails to appear, the court can treat disputed facts as established against the absent party, bar them from presenting certain evidence, strike their pleadings, or enter a default judgment. On top of those procedural penalties, the court is required to order the absent party or their attorney to pay the opposing side’s reasonable expenses, including attorney’s fees, unless the failure was substantially justified or the award would be unjust.⁷

A witness who refuses to answer questions without a valid privilege risks a contempt citation. Courts can also order the uncooperative deponent to pay the opposing party’s legal fees for the session or, in serious cases, dismiss claims or defenses. Intentionally vague or misleading answers can trigger similar consequences.

How Deposition Testimony Is Used Later

A deposition is not just a pretrial exercise. The record can play a direct role at trial in several ways.

Impeaching a Witness

The most common use is impeachment. If a witness testifies at trial and says something different from what they said at their deposition, the opposing attorney can read the prior testimony aloud to expose the contradiction. Under the Federal Rules of Evidence, the witness must be given a chance to explain or deny the inconsistency.⁸ Careless answers at a deposition can surface months later on the stand.

Substituting for an Unavailable Witness

When a witness cannot appear at trial, their deposition may be read into the record or played for the jury as a substitute. Federal rules allow this when the witness has died, is too ill or infirm to attend, lives more than 100 miles from the courthouse, or cannot be located despite reasonable efforts.⁹ The party offering the deposition cannot have caused the witness’s absence.

Using an Adverse Party’s Deposition

The deposition of an opposing party, or of someone who served as an officer, director, or managing agent of the opposing party, can be used at trial for any purpose, not only impeachment.⁹ An attorney can read damaging excerpts from the other side’s deposition directly to the jury as part of their case. In a jury trial, if a party requests it, deposition testimony offered for purposes beyond impeachment generally must be presented in video form when a recording exists.

Who Pays for the Deposition

The party who schedules the deposition typically pays for the court reporter’s attendance, the transcript, and any video recording. If the other side wants its own copy of the transcript, it usually pays separately. Court reporter fees commonly run a few hundred dollars for attendance plus a per-page charge for the transcript, with rates varying by location and session length. Expert witness depositions tend to cost more because the expert is entitled to a reasonable fee for time spent responding to discovery.⁶ Subpoenaed witnesses are also owed a small attendance fee and mileage reimbursement, set by state or federal rules and rarely substantial.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
3
U.S. Bureau of Labor Statistics. Court Reporters and Simultaneous Captioners
4
Office of the Law Revision Counsel. 18 USC 1621 – Perjury Generally
5
Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine
6
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
7
Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
8
Legal Information Institute. Federal Rules of Evidence Rule 613 – Witness’s Prior Statement
9
Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings