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What’s a Deposition?

Depositions are a formal court proceeding and result in testimony that can sometimes be used at trial. Depositions are an attorney’s tool to find out about the other side’s case in the discovery phase of litigation. They generally take place after litigation has begun, but before trial.

Everything anyone says is recorded in a deposition. Usually, the recording is done by a court reporter or “stenographer.”

The people who attend a deposition can vary, but the one person who is never at a deposition is a judge. Other than the witness being deposed,  usually all attorneys involved in all sides of the case attend. Sometimes, the parties involved in the case are also there. Generally, other witnesses to a case are not allowed to attend.

Everything anyone says is recorded in a deposition. Usually, the recording is done by a court reporter or “stenographer.” Sometimes the recording is also done by video. The Federal Rules of Evidence also allow attorneys to record a deposition by audio-recording, although I’ve never seen that happen. How a deposition is recorded is up to the attorney who requests, or “notices” the deposition.

The attorney who notices up the deposition is the one who gets to ask the questions first. During the attorney’s questioning of the witness, the other attorneys present are allowed to object. The witness should answer the question after the objection is made, because the judge isn’t there to rule on the objection. In very limited circumstances, the objecting attorney may instruct the witness not to answer a question.

After the attorney who noticed up the deposition asks questions, it’s the other side’s turn to ask questions. Whether that attorney chooses to do so is based on all kinds of factors and it’s common for attorneys to not ask any questions when it’s their turn.

As in everything in the law, there are exceptions and permutations to these general rules of depositions, but generally, that’s what a deposition is.

About the Author

Rebecca RutzRebecca “Becky” Henning-Rutz graduated from the University of Montana with her law degree in 2006 and has been working in Kalispell ever since. Becky has been working as an associate for Henning, Keedy & Lee since 2007.View all posts by Rebecca Rutz →

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