Courtroom dramas often make trial testimony seem like the first time a witness tells their story under oath. In real litigation, the opposite is usually true. Witnesses who testify at trial in a commercial lawsuit, and many others who may never be called to the stand, have usually already provided sworn testimony and answered questions from the lawyers in the case during a pre-trial proceeding called a deposition.
Depositions play a pivotal role in the outcome of a lawsuit. In business disputes, those deposed can include business owners, C-suite executives, and frontline workers, as well as third parties who may have knowledge of relevant facts and experts retained by a litigant to offer their opinions or conclusions.
If your company is involved in a business lawsuit, your lawyer will notify you at some point that you and other officers and employees must appear for a deposition. If this is a new experience — as it is for many individuals — knowing what to expect, why you’re there, the role the deposition plays in the case, and how you should act can help you navigate the process and testify helpfully (but always truthfully).
What Is A Deposition?
In litigation, a deposition allows the attorneys involved in a case to question a witness under oath before trial. The goal is to learn what the witness knows and what they would say if called to testify before a judge or jury. Depositions are part of the “discovery” process, which is an element of almost every type of lawsuit.
The “discovery” phase in a business lawsuit refers to the various ways that parties to a lawsuit discover potentially relevant information, develop evidence to support their position, and investigate the claims, events, and facts involved in the case. Discovery includes depositions of parties and other witnesses, but it also involves the exchange and review of documents, as well as the asking and answering of written questions (called “interrogatories”).
What Is The Purpose Of A Deposition And How Is It Used In A Commercial Lawsuit?
In addition to learning what a witness knows and would say about relevant facts, a deposition also provides a chance to lock in a witness’s testimony such that their credibility would be undermined if they changed an answer during trial. For example, if a witness said at their deposition that “the order was delivered on time” but said that “the order was not delivered on time” when answering the same question at trial, the cross-examining attorney can introduce their contradictory answer from their deposition testimony as evidence to call their honesty or recollection into question. When a deposition is used in that way, it is called “impeaching” a witness, and it can be a particularly damaging weapon at trial.
Where Will Your Deposition Be Held And Who Will Be There?
Depositions are usually, but not always, held at the offices of one of the attorneys or at another mutually agreed-upon location. You will be there along with your attorney and the lawyers representing the other parties to the lawsuit. Non-lawyer officers or representatives of one or more of the parties may sometimes show up to listen to your testimony, but that is the exception rather than the rule in most cases.
A court reporter will also be at the deposition, swearing you in before your testimony and transcribing every word spoken by you and the attorneys. A videographer may also be there, recording the deposition. It is important to understand that you are testifying under oath, and penalties for perjury apply during a deposition, just as if you were testifying in a courtroom before a judge and jury.
Many depositions now proceed remotely via videoconference, including on platforms such as Zoom and Microsoft Teams. In those situations, your attorney may be in the same location with you, or your attorney may participate from their office while you appear from your own location. Either way, your attorney can still object to questions in the same manner as they would during an in-person deposition, and a court reporter will still swear you in and transcribe the testimony.
Questions, Answers, and Objections
The opposing lawyer may ask questions about your background, education, your role in the business, and your involvement in or knowledge about the facts and claims at issue in the case. They may also ask questions that seem invasive or irrelevant. If your attorney feels that a question is improper, they may object.
Unlike a trial, there is no judge present to sustain or overrule an attorney’s objection, and lawyers are given a fairly wide berth to ask questions at a deposition that would be inappropriate at trial. As such, your lawyer may object and then direct you to answer the question anyway. They will make the objection in case the defense wants to use your deposition testimony at trial. At that point, the attorneys will argue the validity of the objection before the judge. If, however, your attorney directs you not to answer after objecting to a question, follow their direction.
Listening to the Question Asked
During the deposition, it is critical to carefully listen and answer the specific question that is asked — rather than volunteering information. In this sense, the back-and-forth of a deposition is unlike a normal conversation.
The following example illustrates the difference between how to answer a question in a conversation and how to properly respond in a deposition. Let’s say you were walking down the street and someone asked you, “Do you know what time it is?” Presuming you had your watch or phone, you would likely respond with “Sure. It’s 1:35.”
But that is not the answer to the person’s question.
They asked you whether you knew what time it was, not what time it was. The answer to that exact question was, “Yes, I know what time it is.” If that were all you said in a casual interaction, it might seem impolite. In a deposition, however, providing only the information necessary to answer the question is often the right strategy. The burden is on the questioning attorney to ask the follow-up question, “What time is it?” Your job is to listen carefully and respond only to the specific question asked, rather than anticipating or responding to a question that has not yet been asked.
Depositions are a critical part of virtually every commercial lawsuit, providing both sides with an opportunity to gather facts, assess witness credibility, and evaluate the strengths and weaknesses of the case. An experienced business litigator will thoroughly prepare you for the process, explain what to expect, and help you feel comfortable, confident, and ready to provide truthful and effective testimony.