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Kevin O'Flaherty

In this article we will explain what to expect from a deposition in Illinois.  We will answer the questions, “what is a deposition?”, “who is present during a deposition?”, “what happens in a deposition?”, and  “what can deposition testimony be used for?”  We will also explain how to prepare for a deposition and tips for giving deposition testimony.

What is a Deposition?

A deposition is an on-the-record interview of a potential witness prior to trial.  The interview is conducted by the opposing attorney for the purpose of gathering information regarding the potential testimony of the other side’s witnesses.  

Who is Present During a Deposition?

Typically both parties to a case and their attorneys will be present during depositions.  A court reporter will also be present to record a word-for-word transcript of the interview.  The deposition will typically be conducted at the offices of one of the attorneys.  

What is a deposition

What Happens in a Deposition?

During a deposition, the attorney who is adverse to the witness will ask the witness a series of questions in order to determine every aspect of the witness’ story and ensure that there are no surprises at trial.  

The attorney will often ask the witness to identify certain documents that are relevant to the case.  These documents will be marked by the court reporter as exhibits and will be included with the transcript.  Once the documents have been marked, the attorney can ask the witness questions regarding the veracity or contents of the documents.  

The questioning attorney is able to follow any line of questioning that is relevant to the case.  If the attorney for the party in favor of whom the witness intends to testify believes that a line of questioning is inappropriate, he or she may instruct the witness not to answer.  Since there is no judge present, any disputes between the attorneys are resolved in one of three ways:

  1. Certifying the question:  If a witness refuses to answer, the attorneys can continue with the deposition while putting a particular question on hold for the judge to later decide whether the witness must answer.
  2. Calling the judge’s chambers: The attorneys may attempt to reach the judge on the phone to resolve the dispute in real time.
  3. Terminating the deposition: Either attorney may terminate the deposition at either time.  The dispute can later be resolved by the judge and the deposition continued to a later date.  If the judge disagrees with the terminating attorney’s basis for terminating the deposition, the party that terminated the deposition may be required to pay costs associated with interrupting the deposition.  

After the attorney conducting the deposition has finished his or her line of questioning, the other attorney can attempt to “rehabilitate the witness” by asking his or her own set of questions.  These questions must be limited to the topics covered in the adverse attorney’s line of questioning.  This line of questioning is usually used to backtrack on or clarify statements that were harmful to the case the witness supports.

Finally, the adverse attorney will have one last opportunity to question the witness.  These questions must be limited to the topics covered by the other attorney’s questions.  

Depositions are typically limited to three hours, although they do not always take this full amount of time.  Generally, the attorneys and witness will take one or two five-minute breaks by mutual agreement, giving the attorneys time to speak to their clients and the witness time to regroup.

What Can Deposition Testimony Be Used For?

Deposition testimony can be used for the following purposes:

  • Information gathering:  Prior to depositions the parties typically issue written discovery, which consists of written questions to the other side that must be responded to in writing as well as requests for documents possessed by the other side.  Depositions are often used to flesh out ambiguities and inconsistencies in the parties’ written discovery responses and explain documents that have been produced in discovery.  Depositions allow the attorney conducting the deposition to have a better picture of the weight of the evidence that the other side possesses.  
  • Impeaching the Witness During Trial:  The transcript of a deposition cannot generally be submitted as evidence during a trial except for limited purposes.  One of those purposes is to impeach the witness.  If the witness’ testimony during trial conflicts with his or her deposition testimony, the opposing attorney can enter the deposition testimony into evidence for the purpose of calling into question the witness’ credibility: “were you lying then or are you lying now?”
  • Preserving the Testimony of a Witness:  Another scenario in which deposition transcripts can be entered into evidence at trial is when the witness is unavailable to testify due to death or illness.  In this case, the witness’ testimony is preserved through the deposition transcript.
  • Motions for Summary Judgment: A motion for summary judgment is a motion asking the court to rule in the movant’s favor on some or all of the issues in the case without the trial.  Motions for summary judgment are only granted if the movant can show that there is no genuine material factual dispute in the case and that according to the undisputed facts, the law entitles the movant to judgment in his or her favor.  Deposition testimony can be used to show which facts are undisputed by the other side, and is often the primary basis for summary judgment.

How to Prepare for a Deposition

If you are the witness or party being deposed, the attorney for the party who your testimony supports should meet with you prior to the deposition to prepare you.  The purpose of this meeting is to make sure that you have reviewed any important documents, that you refresh your memory of the facts of the case, and that you have a clear understanding of the argument that the party your testimony supports is attempting to make.  

Tips for Giving Deposition Testimony

We always advise our clients to answer all questions honestly, not to stonewall the questioning attorney, but also not to answer more than the attorney is asking.  Witnesses run into trouble when they engage in long narratives.  

Be polite.  Don’t be confrontational.  Answer the questions that are asked without giving more elaborate answers than necessary.  If you do not know the answer to a question or do not remember, it is okay to say so.  Do not guess.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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