Exploring Different Types of Depositions

Though typically conducted in a conference room, a deposition can take place in many locations and through a variety of methods. So long as you capture a verbatim record, either face-to-face or remotely through the use of technology, testimony can be captured and added to the official record. 

Below we take a look at four types of depositions—oral, written, video, and telephonic—and suggestions for when to use each and how to prepare witnesses for each. 

Oral Depositions: Process and Procedures

Let’s start with the standard and widely used method of meeting face-to-face for a standard deposition hearing. An oral deposition involves the witness, or deponent, attending a deposition proceeding to be questioned by counsel. This questioning is led by an opposing attorney, requires sworn testimony, and is regulated by civil procedure and federal rule.

Consistent with Federal Rule of Civil Procedure 30, Depositions by Oral Examination, the meeting format can be¹: 

• In-person, either at a law office or scheduled in a convenient location
• Remote via videoconference or other electronic means
• Hybrid, with some participants in person and some remote

These proceedings require the presence of a court reporter to become part of a legal record. Advance notification is required by the deposing attorney to the witness and their counsel. 

Once scheduled, the deposition proceeds with: 

1. Official opening and swearing in of witnesses by a court reporter or similar official
2. Questioning by the deposing attorney 
3. Official closing by the court reporter

A transcript is filed with the court and distributed to relevant parties.

Unless time, cost, or sheer volume of witness discovery prohibits it, an experienced attorney may prefer the face-to-face experience of an in-person, oral deposition. 

However, the convenience of remote depositions have led to videoconferencing as a growing option to connect all parties in a deposition. 

Written Depositions: Understanding Their Use

With a written deposition, attorneys on both sides of a case present their direct and cross-examination questions in writing. The witness typically sees these in advance, with time to pre-plan their answers. 

The steps of a written deposition include: 

1. The deposing attorney notifies the deponent and their counsel of the deposition
2. The deposing attorney files questions with the court reporter (or notary public, clerk, etc.)
3. The opposing counsel reviews questions and files cross-examination questions
4. The court reporter meets with the deponent and asks the written questions
5. The transcript recording the session and answers becomes the official record

There are tight time limits on the steps of communicating and submitting various stages of questions listed within Federal Rule of Civil Procedure 31, Depositions by Written Questions.²

Before videoconferencing—or teleconferences—were available, a written deposition was an important way to obtain testimony from some witnesses. Today, when a remote deposition can cross the miles to most locations, it’s less common. 

Since facial expressions and nonverbal communication can lend weight to testimony, most attorneys prefer formats that allow observation. However, written depositions are still useful when a witness: 

• Is an expert witness of a specific and limited scope of factual data
• Has very limited testimony, such as validating the legality of specific records
• Is otherwise unavailable due to medical condition, incarceration, etc.

Video Depositions: Advantages and Considerations

A videotaped deposition is typically an additional layer rather than an alternative to an oral deposition. A video and audio recording is taken either live or via videoconference or other electronic meeting platform tools. 

To be part of the official record available for use in court, the recording must be: 

1. Secured by the deposing attorney
2. Paired with an official written transcript

What Is the Purpose of a Video Deposition?

Videotaped testimonies can be extremely useful to: 

• Impeach a witness who later contradicts their prior testimony
• Reinforce an emotional plea or argument related to the impact of a complaint
• Act as a replacement in court for a witness who’s unable to be present

What to Be Aware of for Video Depositions

It is true that a witness’s demeanor and appearance can disrupt or reinforce the power of their testimony. 

Leading up to a deposition, prepare your witnesses with the understanding that:

• Nerves or emotional or physical discomfort can be misinterpreted as signs of deceit
• Witnesses can be provoked into inappropriate laughter, smiles, or anger

Telephonic Depositions: When and How They’re Used

With the availability of remote and hybrid depositions that allow counsel to view as well as hear deponents, telephonic depositions that only share audio are less common. 

A telephonic deposition is typically held and recorded via a teleconference platform that allows for multiple parties to join. 

Preparing for Different Types of Depositions

When prepping a witness to be deposed, you’ll cover the usual principles of answering factually, honestly, and calmly. The deposition process varies greatly depending on the type of deposition, so you’ll also want to address: 

Appearance

While witnesses don’t need to undergo a total makeover, request that they err on the conservative side in terms of dress, accessories, and cosmetics. Attorneys and court personnel are humans who can fall prey to judging a book by its cover, and a professional appearance can go a long way toward setting up a first impression that supports a witness’ statement. 

To a greater or lesser degree, professional appearance can support a witness in multiple types of depositions. Consider the impact on these audiences, in decreasing priority: 

• Video depositions – In addition to both sides of counsel, a video deposition may be viewed in whole or part by a judge and members of the jury. Appearance and demeanor will be a critical factor in the authority and believability granted to a witness.  

• Oral depositions – Opposing counsel may tailor their questions and approach based on appearance. A witness who seems to be ill-prepared or vulnerable based on out-of-place self-presentation may be treated with less respect and more aggression. 

• Telephonic depositions – Granted, wearing flip-flops will have less impact over the phone, it doesn’t hurt to suggest professional dress even for a telephonic deposition. Just like some at-home workers opt for a tie during business hours—dressing professionally can alter your state of mind and level of formality. 

Neutrality

Advise your witness to avoid thinking of those at a deposition (and in their offices) as either a friend or an enemy. An appropriate level of emotion can be critical for effective testimony, but becoming overly reactive or dramatic undercuts believability and allows opposing counsel to take advantage. 

Environment

Regardless of the deposition style, it should take place in a confidential, closed-room environment without background noise or interruptions. 

Be sure your witnesses know to set aside time for a remote or telephonic deposition without the responsibility or presence of children, pets, or other adults. They should find a quiet room, close the door, and dial or join before the start time. Suggest having a glass of water at hand. 

Technology

Ask your witness to test out any relevant hardware or software in advance of the deposition. They may need to log in, install or update apps, or ensure their location has adequate mobile connectivity. 

For a video deposition particularly, a test run to check on lighting and audio settings may be in order. A switch from device to headphone audio, for instance, may help the speaker be clearly understood and cut down on any ambient noise.

U.S. Legal Support Can Help

For nearly 30 years, U.S. Legal Support has provided comprehensive litigation support services including court reporting for all types of depositions. Whether it takes place in-person, remotely, or by phone, you’ll find the specialist you need within our nationwide network of 5,000+ experienced and professional court reporters. 

We also provide record retrieval, jury consulting, and interpreting and translation services. 

Ready to learn more? Reach out today to connect with us for your deposition and other legal support needs.

Sources: 

1. Cornell Law School. Rule 30. Depositions by Oral Examination. https://www.law.cornell.edu/rules/frcp/rule_30
2. Cornell Law School. Rule 31. Depositions by Written Questions. https://www.law.cornell.edu/rules/frcp/rule_31