词源与由来: From Latin 'depositio' meaning 'a laying down or putting aside,' from 'deponere' (to put down). In legal usage, it refers to testimony 'laid down' or recorded under oath outside of court.
The deposing party serves a notice of deposition specifying the date, time, location, and the witness to be deposed, typically with at least 10 days advance notice.
The attorney prepares an outline of topics and questions, reviews relevant documents, and meets with their own witnesses to explain the process.
The court reporter administers an oath to the deponent, who swears to tell the truth under penalty of perjury.
The deposing attorney asks questions of the witness. Questions may cover any matter relevant to the case or reasonably calculated to lead to discoverable information.
Opposing counsel may object to the form of questions (preserved for trial) but generally cannot instruct the witness not to answer except to preserve privilege.
Other parties' attorneys may ask follow-up questions after the deposing attorney finishes.
The deponent may review the transcript, note any corrections on an errata sheet, and sign under oath within 30 days.
Deposition testimony becomes particularly valuable at trial in several contexts. If a witness is unavailable for trial (due to death, illness, distance, or privilege), their deposition may be read or played to the jury as substantive evidence. Deposition transcripts are also used extensively for impeachment — when a witness testifies inconsistently at trial, the cross-examiner reads the contradictory deposition testimony to challenge credibility. During the deposition itself, attorneys may object to questions but must state objections concisely without coaching the witness. Instructions not to answer are limited to privilege, harassment, or to enforce a court-ordered limitation.
Attorney at deposition: "Ms. Kim, I'm going to ask you questions under oath. Please answer verbally — the court reporter cannot record head nods. If you don't understand a question, ask me to rephrase it. Do you understand?" Witness: "Yes."
Attorney at trial: "Mr. Wallace, you testified today that the light was green. Do you recall being deposed on February 12th?" Witness: "Yes." Attorney: "Page 87, line 4. Question: 'What color was the light?' Answer: 'It was red.' Did you give that answer under oath?" — Using deposition for impeachment.
Attorney: "Your Honor, the witness has moved to Australia and is beyond the subpoena power of this court. We offer his deposition testimony under Rule 32(a)(4) as the testimony of an unavailable witness."
Students often confuse the role of objections at depositions with trial objections. At deposition, most objections (except privilege and form) are preserved — the witness still answers, and the court rules on admissibility later. Instructing a witness not to answer is appropriate only to preserve privilege, not to obstruct legitimate discovery.
Federal rules limit depositions to 10 per side and 7 hours per deponent under FRCP 30, absent court order. Many states have no presumptive limit on the number of depositions, and time limits vary significantly.
Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)
Established the protective rule that opposing litigation counsel generally should not be deposed absent extraordinary circumstances.
Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993)
Set influential guidelines restricting attorney conduct during depositions, prohibiting coaching through objections and limiting private conferences.
Hickman v. Taylor, 329 U.S. 495 (1947)
Arose from a dispute over deposition statements, establishing that an attorney's mental impressions and work product derived from witness interviews are protected from compelled disclosure.
| Deposition | Trial Testimony |
|---|---|
| Takes place in an attorney's office or conference room | Takes place in the courtroom before a judge and jury |
| No judge present to rule on objections immediately | Judge rules on objections in real time |
| Objections are stated for the record but testimony continues | Sustained objections prevent the witness from answering |
| Used for discovery, preservation, and impeachment | Used as the primary evidence for the factfinder |
| Typically only attorneys and a court reporter are present | Open to the public with judge, jury, and gallery present |
How should a witness prepare for a deposition?
A witness should review all relevant documents, understand the scope of the case, and meet with counsel to discuss likely questions. Key rules: answer only what is asked, do not volunteer information, ask for clarification if unclear, and always tell the truth.
What is the difference between a deposition and an affidavit?
A deposition involves live oral questioning with cross-examination opportunity, recorded by a court reporter. An affidavit is a written sworn statement prepared without opposing counsel present. Depositions are generally stronger evidence because they are tested through adversarial questioning.
Can a deposition be used to impeach a witness at trial?
Yes, under Rule 32(a)(2), any deposition testimony may be used to impeach a witness who testifies inconsistently at trial. The attorney reads the prior deposition answer to highlight the contradiction.
Discovery is the pretrial process by which parties obtain information and evidence from each other a...
Cross-examination is the questioning of a witness by the opposing party after direct examination. It...
Impeachment is the process of attacking a witness's credibility to reduce the weight the jury gives ...
A subpoena is a court-issued command requiring a person to attend a proceeding to testify (subpoena ...
