Are Depositions Mandatory? | Understanding Your Legal Obligations

If you’ve been asked to give a deposition, you’re probably wondering: Do I have to do this? Depositions are a critical part of the legal process, but they can also feel daunting. Whether you’re a party to a case or simply a witness, understanding what’s expected of you can make the deposition a lot less daunting. In this guide, we’ll break down everything you need to know about depositions, from what they are to when they’re required—and what happens if you don’t comply.

What Is a Deposition?

Think of a deposition as a formal Q&A session that happens before a trial. It’s a part of the discovery process where each side gathers information to build their case. Here’s what you need to know:

• Under Oath: When you’re deposed, your testimony is given under oath, just like it would be in court.
• Recorded: A court reporter records everything you say, creating a transcript that can later be used in the trial.
• Attorney's Office: Depositions usually take place in a lawyer's office, not a courtroom, providing a more informal environment for all parties to prepare and ask questions.

The main goal of a deposition is to make sure both sides know what to expect at trial. By sharing evidence and testimony ahead of time, depositions level the playing field and help avoid surprises in court.

The Purpose of a Deposition

A deposition is a crucial part of the discovery process in law, allowing both sides to gather information and understand the evidence. The primary purpose of a deposition is to give all parties involved in the litigation a fair preview of the evidence. It is an opportunity for attorneys to learn as much as they can about what happened and why, and to preserve the parties’ version of events. Depositions are usually taken from key witnesses, but can also involve the plaintiff or defendant. The testimony is then used to formulate a strategy by both sides and can decide whether the case gets settled or goes to trial.

Preparing for a Deposition

Preparation is key to feeling confident during a deposition. Your attorney will guide you through what to expect, including:

1. Expected Questions: Your lawyer will review potential questions you might face and help you frame your answers.
2. Stressful Moments: Depositions can get tricky, so your attorney will prepare you to handle pressure calmly and truthfully.
3. Honesty is Crucial: Always provide accurate information—lying under oath can result in perjury charges.
4. Understanding the Process: Your attorney will explain how the deposition works and what role you’ll play.
5. Role of the Opposing Attorney: The opposing attorney may question you about personal matters such as finances and childcare arrangements. They might use strategic questioning to provoke emotional responses or gather relevant information for the case.

What Happens During a Deposition?

Depositions might seem formal, but they’re more straightforward than you’d think. Here’s how it typically plays out:

1. Setting: You’ll sit in a lawyer’s office with a court reporter, lawyers from both sides, and possibly the other party.
2. Questions and Answers: The opposing lawyer will ask you questions, and you’re required to provide testimony to the best of your ability. Refusing to provide testimony can lead to legal consequences, including contempt of court and adverse inferences.
3. Objections: Your lawyer can decide to object to certain questions if they’re inappropriate, but you’ll often still need to answer.
4. Duration: The entire process can take several hours, but the Federal Rules of Civil Procedure (FRCP) cap them at seven hours per day per deponent.

Common Challenges in Depositions

Depositions can be challenging for deponents, as they may be asked a wide range of questions, including those that are uncomfortable or antagonistic. Deponents may also face difficulties in remembering specific details or events, or in articulating their thoughts and experiences. Additionally, deponents may feel anxious or stressed about the deposition, which can impact their ability to provide clear and accurate testimony. It is essential for deponents to be prepared and to have a clear understanding of the inner workings of a deposition and their rights.

Legal Obligations and Consequences

If you’ve been subpoenaed for a deposition, showing up isn’t optional—it’s the law. Here’s what you need to know about failure to comply:

• Failure to Appear: Ignoring a subpoena can result in contempt of court, leading to fines or even jail time.
• Honest Answers Only: Lying under oath is perjury, a serious crime that can carry hefty penalties.
• Sanctions: Courts can impose fines or require you to pay legal fees if you refuse to cooperate.
• Subpoena Form: A subpoena form is necessary to compel an individual to attend a deposition. This form serves as a formal request for attendance, and noncompliance can lead to significant repercussions.

Watch the video "12 Dos and Don'ts of Depositions" below for more information on proper deposition conduct:
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Rights of the Deponent

As a deponent, you have certain rights that are protected by law. You have the right to be represented by a lawyer, who can guide you through the deposition and protect your interests. You also have the right to refuse to answer questions that are privileged or protected, such as those related to attorney-client confidentiality or self-incrimination. Additionally, you have the right to request a protective order if you believe that the deposition process is being used to harass or intimidate you. It is essential to understand your rights as a deponent and to assert them if necessary.

The Role of Federal Rules in Depositions

The Federal Rules of Civil Procedure (FRCP) are the backbone of deposition law, ensuring that everyone follows the same guidelines.

• Subpoenas: A subpoena is a legal order requiring you to attend the deposition. Once served, you’re legally obligated to comply.
• Scope of Questions: The FRCP allows parties to ask questions relevant to the case, but irrelevant or harassing questions may be blocked.
• Sworn Testimony: Sworn testimony during depositions is crucial in the discovery phase. It allows both sides to gather evidence and formulate strategies before a trial, often playing a decisive role in whether cases are settled or proceed to court.

Working with Legal Professionals

Facing a deposition alone can be overwhelming. That’s why having an experienced legal professional by your side is invaluable.

• Preparation: Your lawyer will help you understand what to expect and how to handle tricky questions.
• Protection: Lawyers ensure you’re not harassed or burdened unnecessarily during the deposition.
• Discovery Guidance: Your lawyer will explain how the deposition fits into the broader discovery phase and your case strategy.
• Best Interest: Complying with legal advice and court orders is crucial, despite any discomfort. It is ultimately in your best interest to follow these directives to avoid severe legal repercussions.

Exceptions and Refusals

Not every question during a deposition requires an answer. Here are some situations where exceptions apply:

• Attorney-Client Privilege: Any confidential communication with your lawyer is off-limits.
• Fifth Amendment Rights: You can refuse to answer questions that could incriminate you.
• Irrelevant or Harassing Questions: Your lawyer can object to and block questions deemed irrelevant or intended to intimidate.
• Privileged Information: You can refuse to answer questions that involve privileged information, such as attorney-client confidentiality, as these are exceptions during a deposition.
• Undue Burden: Under Washington law and the FRCP, you can avoid a deposition if attending would cause significant inconvenience or expense. For instance, the court can issue a protective order based on "good cause" to prevent undue burden.

FAQ: Is a Deposition Mandatory?

1. What is a deposition?
A deposition is a legal procedure where someone gives testimony under oath, recorded outside of court during the discovery phase of a lawsuit.

2. Do I have to attend a deposition if subpoenaed?
Yes. A subpoena is a legal order, and any person who fails to comply can face contempt of court charges.

3. Can I refuse to answer certain deposition questions?
Yes, in certain cases. You can invoke attorney-client privilege, the Fifth Amendment, or object to irrelevant or harassing questions.

4. What happens if I don’t show up for a deposition?
Ignoring a subpoena can lead to fines, sanctions, or even imprisonment for contempt of court.

5. How long does a deposition last?
Depositions typically last several hours but are legally limited to seven hours per day per deponent under the FRCP.

6. Can a lawyer stop inappropriate questions during a deposition?
Yes. An attorney can object to questions and prevent their client from answering ones that are irrelevant, harassing, or privileged.

7. Is lying during a deposition a crime?
Absolutely. Lying under oath is perjury, a criminal offense that can carry serious penalties.

8. Do depositions always take place in court?
No. Most depositions occur in an attorney’s office, although they’re still formal legal proceedings.

9. Can depositions be used at trial?
Yes. Deposition transcripts are often used to challenge testimony or present evidence during trial.

10. How can an attorney help prepare for a deposition?
The attorney will review potential questions, advise their client on answering truthfully, and ensure they're protected from inappropriate conduct during the deposition.

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