The Deposition Witness

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 153-155

A deposition is an important fact-nding or discovery proceeding in a civil

case. Generally, any party to a civil case can conduct a deposition, although

all parties can attend and ask questions. Depositions, or similar testimony

situations, also happen in a wide range of government investigations, admin-

istrative hearings, and other proceedings. Although the details may differ

somewhat, for these purposes we will lump all these types of proceedings

together with depositions.

A deposition consists primarily of questions by lawyers and answers by

the witness, under oath, with the witness’s lawyer present. It is not a trial.

No judge or jury is present, and nobody is there to keep score or award a

verdict. Charm, persuasiveness, sincerity, and other appealing human attri-

butes are largely wasted in a deposition. The principal result is usually a

written record known as a transcript, which will be used (or misused) by the

lawyers when the actual trial occurs. The true audience is not in the room.

Therefore, the most important task for a witness in a deposition is to

keep the transcript clear and accurate. A witness very rarely wins a deposi-

tion, in the sense of convincing the questioner or other side that the witness

is right. The more realistic goal is convincing the questioner that you will

make a good witness by being clear, precise, and careful so that mistakes

153

Chapter 26

The Deposition Witness

Depositions are “the factual battleground where the vast majority of

litigation actually takes place.”

—Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Penn. 1993)

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