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What Is a Deposition?

Photo of hands gesturing at A deposition taking sworn testimony. Sworn testimony is evidence taken from a witness that affirms to tell the truth.

A deposition is sworn testimony. Sworn testimony is evidence taken from a witness that affirms to tell the truth. The deponent affirms or swears to tell the truth, and the testimony is recorded for later use. Sworn testimony can be submitted to the Court for use with motions or at trial. A deposition of a witness can be taken anywhere; in a home, office, courthouse, or virtual setting. A deposition can be written or oral.

In the personal injury field, our clients are often required to appear for different types of oral depositions. An Examination Before Trial (EBT), an Examination Under Oath (EUO), and a pre-action hearing, are all oral depositions done for different purposes. Most municipalities and government agencies have a right to a pre-action hearing before a lawsuit can be commenced against them. In New York, A 50H hearing is conducted pursuant to General Municipal Law 50H. An EBT is completed once a lawsuit is commenced, but before a trial is held. Each party in a lawsuit may be required to appear for an EBT. An EUO is usually done pursuant to an insurance policy, when the party insured is seeking benefits from their own insurance policy and the insurance company has questions for the insured party.

A virtual deposition is done over the computer, often with the deponent, deponent’s attorney, questioning attorney, and court reporter all in different locations. Though a virtual deposition may seem less formal to deponents, the testimony has the same legal effect as if given in a courtroom. A virtual deposition is usually done using technology such as Zoom or Microsoft Teams.

In New York, a deposition may last as long as 7 hours. A deposition may go beyond 7 hours with the permission of a judge.

Once a deposition is completed, a written transcript is prepared. The deponent is asked to review the transcript for accuracy, make any needed changes on what is called an “errata sheet,” and sign the deposition. If a deponent is given a chance to review a deposition transcript, and fails to sign and return it with corrections, the transcript will be deemed accurate. If properly requested by one of the parties, a deposition can also be visually recorded for later use.

A deposition is an important part of any lawsuit or claim. The deposition sets in place the deponent’s version of events. A claimant’s claim can be dismissed based on the testimony given. For example, if someone brings a lawsuit because they tripped and fell, and cannot identify at the deposition what caused them to trip, the case will be dismissed unless there is some other proof as to the cause of the fall (e.g. a video, or witness). There is a saying amongst lawyers that goes “you can’t win your case at a deposition, but you can lose it.”

To make sure that our clients are prepared for a deposition we always meet with them beforehand, to review, and explain the rules and procedures that will be encountered at the deposition. We also ask our clients the questions they should expect to encounter at a deposition, so that they are ready for the questions, and have had an opportunity to refresh their memory about the events that occurred. At depositions,  all relevant documents, photographs, and records might be reviewed. It is necessary to leave as much time as needed for the preparation of the deposition. It is not uncommon for preparation to take longer than the deposition itself.

In sum, A deposition is sworn testimony that can be used in a court of law. It is an important part of any claim or lawsuit and should never be taken lightly