A Formal Interview With a Transcript
When people imagine having their day in court, some picture sitting on a witness stand, telling their side of the story to a jury. But what happens far more often in commercial lawsuits in the United States is that people testify at a deposition.
Depositions are interviews by a lawyer, usually in a conference room, in front of a stenographer (also called a court reporter, even though they do not work for the court) who takes down a word-for-word transcript of the discussion. One major purpose for a deposition is for the lawyer to learn information from a witness, and to know what the witness will say if she is called at trial. The lawyer can also use this transcript as evidence to support an argument before trial, or as evidence at trial if the witness under certain circumstances.
Why should you continue reading this post about depositions?
You have been ordered to testify at a deposition and you don’t know what to expect.
You have watched a bunch of YouTube videos of depositions and you’d like some context about what’s going on.
Someone showed you this post as an exhibit at a deposition and you’re reviewing it before being asked questions about it.
The Cast of Characters
This picture from the Oregon State Bar Association provides a useful look at what a deposition may look like:
The two people who do the most talking in a deposition are the witness, who answers questions, and the lawyer who poses questions. A lawyer will almost never depose her own client, since she does not need a formal procedure to learn information from her own client or to know how she will testify. Instead, depositions are usually taken of adversaries or of third party witnesses.
The witness may also have her lawyer present at the deposition. The lawyer may object to questions, but since there is no judge in the room to rule on the objections, the only thing that usually happens after an objection is that the court reporter writes the objection down. The lawyer may, however, instruct a witness not to answer questions that violate the attorney client privilege or some other applicable rule. The witness’s lawyer may also ask rebuttal questions of the witness to clear up any misunderstandings on the record.
Although a deposition generally always has a transcript, some depositions are also videotaped. This makes it easier for the lawyer to play the testimony to a judge or jury at a trial, since the alternative is reading a transcript aloud. I have worked on several trials where lawyers read deposition transcripts aloud and it can be incredibly boring.
A deposition may also have an interpreter, who translates questions and testimony for a witness who is not testifying in the English language. The transcript usually just reflects the questions posed in English and the translated answers. These transcripts may be more difficult to follow since the answers have been translated and because they are responding to questions that have also been translated.
Preparing For a Deposition Is A Lot of Work
To prepare for a deposition, a lawyer needs to make sure the witness will testify. Although parties to a litigation are generally allowed to depose anyone they want, depositions can be burdensome and so a witness may not want to testify voluntarily. If a witness does not agree to be deposed, the lawyer may ask the court to compel them to testify. The court may refuse this request if the deposition is unduly burdensome in comparison to the benefit to the party.
Once there is an agreement that a witness will testify, the lawyer must confirm a place, time, and date that is convenient for the witness and counsel. Then the lawyer needs to hire a stenographer (who is usually also qualified to administer the witness’s oath to tell the truth) and, if necessary, a videographer. The fees for a stenographer and videographer are often in the thousands of dollars.
Then the lawyer needs to gather every document that she wants to ask the witness about and make enough copies of each for herself, the court reporter, the witness, and the witness’s lawyer. At the deposition, the lawyer can ask the witness to authenticate the document (confirm that it is what it looks like) and explain what it means or confront the witness about how her testimony is consistent with the document.
The lawyer must also prepare questions for the witness. A good lawyer will write the questions very precisely so that they are easy to understand and avoid ambiguity. A good lawyer will not just write out questions, but also anticipate answers and prepare follow-up questions.
When I take depositions, I use LiveNote, which is a feature that some court reporting services offer that allows me to see a written transcript of the proceeding on a tablet or laptop moments after words are spoken. This is incredibly useful for me because I can tell whether I have phrased a question correctly and whether the answer a witness provides answers the question.
Attending Deposition Is A Lot of Work For Everyone
I have prepared many witnesses to testify at depositions. I understand that it may be intimidating for a witness to have a hostile lawyer asking specific, invasive questions about events that may have taken place years in the past, while under oath. Depositions also go on for hours, sometimes from 9 a.m. past 6 p.m., which is exhausting.
Luckily, most depositions are not memory tests. If a witness does not know the answer to a question, she can truthfully say so. But a witness needs to be very careful that she understands each question before answering, because misunderstanding questions usually leads to inconsistent or unintended answers.
Depositions are also difficult for the lawyer. One reason why is because witnesses and opposing counsel can try the questioner’s patience. I have seen evasive and hostile witnesses that act as if they do not understand very basic questions or refuse to give very obvious answers. It can be challenging to get useful testimony from difficult witnesses, but well-crafted questions can be effective against an obstinate witness. A lawyer may also ask the court to compel a witness to answer questions if they put forth excessive resistance.
Depositions may be the most difficult for the court reporter and for other people in the room. This is because depositions can often be so dull that I am surprised I have not seen more people cry in them. Staying awake and not watching videos on your phone is a real challenge for any human being who is listening to the details of a commercial dispute. And I am still amazed by court reporters who do a great job of making word-for-word transcripts of lengthy depositions about very dry subjects.
The main product of a deposition is the transcript. A page from the deposition transcript usually looks something like this:
It is a major problem at depositions when more than one person speaks at the same time. This is because the court reporter can only write down one person’s words at a time. Usually a court reporter will stop typing when this happens and announce that everyone needs to stop talking and, in an orderly fashion, repeat themselves.
Court reporters usually send a rough transcript of a transcript to the lawyers later that day or the following day. Then, after the stenographer reviews their notes and compares the rough draft with an audio recording of the deposition, they will send an updated draft about a week later (or faster for an additional fee). Then the witness reviews the transcript and advises the parties of any errors. If there are no errors, then the transcript becomes final.