Q: I have been asked to appear at a deposition
as a witness in a civil case. What is a deposition?
A: A deposition is a procedure before trial where one party to
litigation gathers facts by asking the other party or non-party witnesses to
answer questions. If you are called to answer questions at a deposition, you
will be known as the “deponent.”
Examinations are typically made by asking oral questions, but written
questions also may be used. A deposition is typically conducted outside of a
courtroom—often in an attorney’s office—but you will testify under oath as you
would in court.
Q: May I have an attorney represent me at the
A: Yes; you are allowed, but not required, to have an attorney
represent you when you are deposed. Usually, a person who is being deposed as a
party to a case chooses to have representation. You probably will not need
representation if you are not a party and it is unlikely you will be named as a
party to the litigation, but many people choose to be represented whether or
not they are parties to the case.
Q: Who will be with me at
A: Your attorney (if you want representation) and the parties’
attorney(s) will be present, and a stenographer and/or a videographer will
record the questions and answers. The parties to the case are permitted, but
not required, to be present, and if one of the parties is a business or other
organization, a representative may appear on behalf of the business or
organization. A deposition does not typically take place before a judge, but
you should testify as though you were testifying in a courtroom before a judge
Q: Will I be paid for my time?
A: As a non-party witness, you may be
entitled to an attendance fee and mileage, depending on whether the matter is a
federal or state court case, and the amount of travel required. The mileage and
attendance fees are set by law. Parties to the case are not compensated for the
time and travel associated with their depositions.
Q: What should I know
before going to a deposition?
A: When answering questions, always be
truthful. Be sure you understand each question, or ask for clarification if you
do not. You do not need to volunteer information; you only need to answer the
if I do not know the answer to a question?
A: Do not speculate or guess. Instead, tell the examiner you do
not know the answer.
Q: If my attorney objects
to a question during the deposition, must I still answer it?
A: Yes. Your attorney may object to a question so the judge may
later rule on whether the question and/or answer was proper and should be
admissible at trial. If your attorney instructs you to not answer a question,
do not answer it, but if your attorney merely objects to the question, you
is a deposition transcript used?
A: A deposition transcript may be used instead of a witness’s
live testimony when the witness is considered “unavailable” at trial (if, for
example, the witness is deceased or lives outside of the trial court’s
jurisdiction and cannot be compelled to appear). A deposition transcript also may be used to impeach a witness who
testifies at trial. Attorneys may, for example, point out contradictions
between the witnesses’ deposition testimony and trial testimony, or
contradictions between the witness’ deposition testimony and other evidence in
if the opposing attorney does not ask me to testify about something I want to
A: Once the opposing attorney examines you, your attorney may,
but is not required to, ask you questions. Your attorney may decide to wait
until the trial to ask questions, so do not be concerned if questions you
consider to be important were not asked during deposition.
should I do if my deposition transcript contains errors?
A: A deposition transcript may contain transcription errors
and/or testimonial errors. A transcription error is a mistake, such as a
misspelling or misuse of a word, which the stenographer might make when
recording the testimony. A testimonial error occurs when the stenographer
correctly records your testimony, but the testimony itself is inaccurate. For
example, you may have testified during your deposition that the automobile
accident occurred on a Wednesday, but later discovered that it actually took
place on a Thursday. Both transcription and testimonial errors should be
corrected. A document known as an “errata” sheet may be used to correct these
This “Law You Can Use” column was provided by the Ohio State
Bar Association. It was prepared by Cleveland attorney Terry Brennan, a partner at Baker Hostetler. Articles appearing
in this column are intended to provide broad, general information about the
law. Before applying this information to a specific legal problem, readers are
urged to seek advice from an attorney.
Labels: deposition, witnesses