Taking Testimony Before Trial

A deposition is sworn testimony taken before trial. The witness answers questions out loud, under oath, while a court reporter records everything, and the transcript that results can be used at trial. No judge is present and nobody rules on objections in the room.

It exists for three reasons. It finds out what a witness will say before the day it matters. It fixes that account in a form that can be used to contradict a different version later. And it preserves testimony from someone who may not be available at trial, through illness, distance or unwillingness.

Setting one up

Federal Rule of Civil Procedure 30 requires reasonable written notice to every other party, stating the time and place and, if known, the name and address of the person to be examined. State rules follow the same pattern, and several specify a minimum number of days rather than leaving reasonableness at large.

How the witness is compelled depends on who they are. A party to the case is bound by the notice alone and must attend. A witness who is not a party must be served with a subpoena, with the attendance fee and mileage tendered where the rules require it, following the mechanics in making a witness or a document appear.

Numbers are capped. Each side may take ten depositions before needing the court's permission, and a single deposition is limited to one day of seven hours unless the parties agree or the court allows more. Additional time is granted where a witness or another person impedes the examination, or where the material genuinely needs it.

Who is in the room

The officer taking the deposition administers the oath and makes the record. In practice this is a certified court reporter, sometimes joined by a videographer where the testimony will be played rather than read. The officer is neutral and does not participate in the questioning.

Everyone else is a participant. The questioning party asks first, then any other party may ask, and the party who produced the witness may ask follow-up questions. The witness may have a lawyer present even if they are not a party; that lawyer may object but generally may not answer for them.

Interpreters attend where the witness needs one, and are sworn as well. In a deposition, unlike a court hearing, the cost of the interpreter usually falls on the party who noticed the deposition rather than on the court.

Location follows the witness rather than the case. A deposition is normally taken where the deponent lives or works, which is why a case filed in one state can involve a day of testimony in another. Remote depositions by video are now common and are permitted by stipulation or by court order in most systems, with the officer and the witness in different places.

Preparation is the part a self-represented party most often skips. Bring the documents to be shown, in order, with copies for everyone present, and a short written outline of the points that have to be covered. Seven hours sounds generous and disappears quickly once exhibits are being marked one at a time.

What the transcript can do

Reviewing and correcting

After the transcript is prepared, the witness normally has a period to read it and note changes. The changes do not erase the original answer. Both versions stay in the record, and a substantive change invites questions at trial about why the answer moved, which is often worse than the original answer was.

The officer certifies the transcript and delivers it to the party who ordered it. Other parties buy copies at the copy rate. Federal reporter rates are published by the courts, and the categories run from ordinary thirty-day delivery through to same-day and hourly service, with each step costing more.

Ordering ordinary delivery is almost always the right call. Expedited rates exist for trials that are days away, not for a deposition taken months before one, and the difference on a long transcript is substantial. Where a video was made as well, the video house bills separately from the reporter, and a synchronized version costs more again.

Costs mount quickly: reporter attendance for the day, the transcript itself, exhibits, video where used, and the room. Some of it is recoverable at the end, because transcripts necessarily obtained for use in the case appear on the federal list of taxable costs, and the ordering mechanics are covered in getting a transcript and what it costs.

Whether to take one at all

Depositions are the most expensive discovery tool and the most revealing. They earn their price where credibility decides the case, where a document needs to be explained by its author, or where a witness may vanish before trial.

They are poor value for straightforward factual questions that a party could simply be asked in writing, for confirming dates and amounts, or in a small case where the transcript will cost more than the dispute is worth. A deposition taken because it seems like the expected next step, rather than because a specific question needs answering out loud, is money spent on a document nobody reads. Those jobs belong to the cheaper instruments described in written questions instead of a deposition.

Budget before scheduling. A day of testimony that cannot be paid for is worse than no testimony at all, and the wider picture of what a case costs to run is set out in what it costs to file a case. Court staff can confirm local rules on notice periods and where a motion about a deposition is filed, but not whether a deposition is a good idea in a particular case.