Most people never have to give sworn testimony. They never sit on a witness stand. They never enter a room full of lawyers and submit to a deposition. But it does happen, and if you’re the plaintiff in a personal injury lawsuit, you could be deposed as part of your case. Often, potential witnesses and parties to a lawsuit are deposed in a civil case.
A witness is any person who has knowledge of what happened before, during, or after the incident that led to the lawsuit. A party is a person, corporation, or other entity that either files a lawsuit (the plaintiff) or defends against a lawsuit (the defendant).
Depositions follow very specific rules. They’re governed by Rule 30 of the Federal Rules of Civil Procedure. Some states have additional requirements, beyond the FRCP, but every state must follow the guidelines outlined in the federal rules.
Is a deposition under oath?
Yes. A deposition is sworn testimony, which means the witness takes an oath requiring them to tell the truth. If they do not, they could face legal consequences for perjury.
The deposition is outside the courtroom, typically during the discovery phase of a lawsuit, and is often held in a neutral location like a lawyer’s office. It is recorded and often used later in court. There is a court reporter who records the testimony verbatim, or word for word.
How is deposition testimony used in court?
Impeach a witness. Sometimes, a witness’s deposition is used in court to damage their credibility if their testimony at trial differs from their earlier deposition. The opposing counsel can point out inconsistencies between the deposition and trial testimony to impeach the witness.
Assess credibility. Lawyers also observe the deponent’s demeanor; how they appear—honestly, responsiveness, candor, etc.—can be helpful as the lawyers determine whether or not the person should be called as a witness at trial.
Discovery. Testimony offered in a deposition can be used to uncover new evidence, share the witness’s knowledge of the case with the opposing parties, and identify how the witness’s observations and testimony could be used at trial.
Preservation of testimony. If a witness becomes unavailable for trial, deposition testimony can substitute for live trial testimony. This could be because of death, illness, being outside the jurisdiction, or other reasons.
Evidence. Sometimes, testimony at a deposition is actual proof of the facts presented. Typically, the witness will be called to testify at trial, but this can be the case if they are unavailable.
Your testimony in a deposition is as important—if not more so—as any evidence or testimony at trial and it carries the same “weight.” Therefore, any person being deposed should be properly and substantially prepared by their lawyer before entering a deposition. This is true whether you’re the plaintiff, defendant, or a witness.
How to prepare for your deposition
1. Be familiar with the process.
Knowing what to expect can help alleviate anxiety, and the calmer you can be, the more credible you’ll appear during the deposition. Know where you’re going and how long it takes to get there (consider things like parking, security checkpoints, etc. as taking additional time). You can ask your attorney who else will be in the room, how long you can expect the deposition to last, and any other logistical questions you have.
Think of your deposition like an interview; you want to put your best foot forward, but always be honest. If you don’t know an answer, say you don’t know or you don’t remember—never fabricate a response if you’re not sure.
2. Review the facts and refresh your memory.
Review any documents you might be asked about—medical records, emails, contracts, etc. You could be shown a document you signed or handled and be asked about the circumstances around its use. Refresh your memory about dates, names, and timelines that are relevant to the claim. If you’ve made prior statements, review them with your lawyer.
If you’ve completed accident reports, insurance claims, or medical forms, review them with your lawyer. Inconsistencies can be used against you—even innocent ones.
3. Know who will be in the room
You’ll likely be in a conference room with a court reporter who transcribes the proceedings, attorneys from each side, and a videographer.
4. Be patient and professional
As mentioned, consider it an interview. Dress presentably; no need to be fancy, but be clean and put-together. Appearance matters. Business-casual or professional attire shows respect for the process.
Plan for a lengthy proceeding. Eat before you go and be well-rested. If you need a break, let your lawyer know. It’s important to be able to stay focused.
5. Rehearse, don’t memorize
Don’t memorize a script. That will make you sound too robotic and less believable. Instead, know your story, key facts, and the timeline well enough to speak naturally and confidently.
6. Practice!
Your attorney should meet with you ahead of the deposition to do a practice run-through. It should be a mock deposition, where they walk you through a facsimile of what the day will be like. Your lawyer will provide training for you to:
- Remain calm under pressure
- Provide truthful and concise answers
- Avoid speculation or guessing
- Practice a pause before you answer in case your lawyer needs to object (in other words, always let the lawyer finish asking the question
Remember, your attorney is there to do the lawyering. It’s their job to prevent the other side from twisting your words. You don’t need to try to “outlawyer” the lawyers; just be honest and remain composed.
7. Know the opposing strategy
Ask your lawyer ahead of time:
- What is the other side trying to prove or disprove?
- What topics are the most “dangerous” or sensitive?
- Are there trick questions to look out for?
It’s also important to understand objections. An objection is a legal device that’s often used both in the courtroom and in a deposition. It’s not a personal attack; an objection is for the purpose of getting on the record. Don’t let an objection rattle you, and just follow your lawyer’s instructions.
8. Don’t bring anything with you
Don’t bring notes, papers, or additional documents unless your attorney has told you to do so. You could be required to share them with opposing counsel during the deposition.
9. Stick to the question
- Answer what you’re asked—no more, no less
- Don’t volunteer additional information
- If you don’t know or don’t remember, just say so
- Don’t guess if you’re unsure
- Use clear, simple language—you don’t need to impress anyone with your vocabulary, you just have to tell them what you know
Silence is okay. Don’t worry about awkward silences after you answer a question. It’s not awkward—it’s the time everyone needs to regroup and move forward with the next. Don’t feel compelled to keep speaking to alleviate silence. Sometimes the opposing counsel will deliberately stay silent to get you to keep taking and reveal more information.
Also be wary of compound questions, like, “When did you stop working, and how were you feeling at the time?” You can ask to break the question into two parts and answer each separately.
10. Ask for clarification
If you’re not sure what you’re being asked, that’s okay. Say something like, “I’m not sure I understand the question. Could you please rephrase?” You can do this as often as necessary to ensure you’re giving the correct answer for what was actually asked. It also gives you a few moments to think if you need to.
11. Don’t get emotional
Even if the opposing counsel tries to rile you up or get under your skin, remain respectful. Don’t let them get you ruffled or upset. Look to your own lawyer for reassurance if you need to.
Don’t argue or get emotional, and don’t exaggerate. This isn’t a trial; there’s no “winning” a deposition. It’s a fact-finding proceeding.
Some people use sarcasm or humor when they’re nervous, but don’t. Avoid sarcasm, slang, or legal or medical jargon unless you’re asked directly. You don’t want to use terms or any language that could be open to interpretation.
Some people also use grounding techniques to keep themselves calm under pressure. For instance:
- Box breathing (inhale four seconds, hold four seconds, exhale four seconds, hold four seconds)
- Mindful pauses before each answer
- Silently repeat the question in your head before you answer to stay focused
Remember that this is not the time or place to overshare or vent emotionally. Remain fact-based, not feelings-based—even if the topic is sensitive or upsetting.
12. Be mindful of body language
Particularly if the proceeding is videotaped, be wary of your non-verbal communication. Avoid eye-rolling, fidgeting, and long pauses. Maintain eye contact, sit up straight and keep professional demeanor.
13. Meet with your lawyer afterward
Your lawyer should meet with you to debrief on the day. They should tell you their impression of how it went, and they should ask yours. If you need any clarifications, this is a good time to ask. They should also work with you to prepare for the next steps in your case.
Importantly, you can do this! It might feel scary or upsetting, and you might feel nervous speaking in front of strangers, but if you’re called to a deposition, it means what you have to say is important. It can be life-changing for the plaintiff, or for you if you’re the plaintiff.
The lawyer is there to advocate for their client’s best interests; you can and should ask any questions you have without embarrassment or shame. They can guide you through the process, prepare you for potential pitfalls or stumbling blocks, and help you avoid common missteps.
See our guide Choosing a personal injury attorney.