Deposition (law)
Sworn out-of-court testimony used for discovery and evidence preservation.
A deposition, known in Canada as an examination for discovery, involves sworn oral testimony given outside of court, typically transcribed for later use during litigation or as part of the discovery process. Lawyers almost always conduct these examinations without a judge present. The practice originated in mid-15th century English equity courts, where written interrogatories were read to a witness by a master or commissioner in a closed proceeding without parties or counsel. The witness’s answers were not recorded verbatim but summarized into a third-person narrative, and the resulting document was sealed until shortly before trial. Modern oral depositions began developing in early 19th century New York, when Chancellor James Kent permitted masters to question witnesses dynamically based on prior answers, rather than using static interrogatories. He also allowed parties and their lawyers to attend, ending secrecy and leading to lawyers taking over the questioning. By the late 19th century, court reporters replaced summary narratives with verbatim transcripts. The merger of common law and equity procedure later made live open-court testimony the default for trials, reducing the deposition to its current role as a discovery and evidence preservation tool. In Canada, the process is nearly identical, though a witness’s lawyer may take questions “under advisement” to delay answering without a formal objection. Due to concerns over cost and time, Ontario has limited examinations for discovery to seven hours per party since 2010, with British Columbia adopting similar limits. In mainland China, taking depositions for use in foreign courts is generally illegal. In the United States, depositions are governed by Rule 30 of the Federal Rules of Civil Procedure in federal courts, with about 35 states using similar rules. Depositions are typically limited to ten per side, each lasting no more than seven hours. The deponent is usually notified via subpoena, though a party may be noticed through their attorney. A court reporter ensures an accurate record, and audio or video recordings are sometimes made. Depositions commonly occur at a court reporter’s office, a law firm, or another convenient location.
- field
- Law
- first_appearance
- Mid-15th century
- origin
- English courts of equity
- modern_development
- Early 19th century in New York
- key_innovator
- Chancellor James Kent
- current_use
- United States and Canada
Lore & Background
A deposition, known in Canada as an examination for discovery, is the taking of sworn, out-of-court oral testimony from a witness. This testimony is typically reduced to a written transcript for later use in court or for discovery purposes. Depositions are a common feature of litigation in both the United States and Canada. They are almost always conducted outside of court by the lawyers themselves, with no judge present to supervise the examination. The person being questioned is called the deponent. In the United States, a subpoena is usually required to compel a third-party witness to appear, though a party to the action can be noticed through their attorney. A court reporter is present to create an accurate record, often via stenography or digital recording, and audio or video recordings may also be made. Depositions typically occur at a court reporter’s office, a law firm, a witness’s workplace or home, or a hotel conference room. In U.S. federal courts, depositions are governed by Rule 30 of the Federal Rules of Civil Procedure, which limits each side to ten depositions, each lasting no more than seven hours in a single day. In Canada, the proceeding is called an examination for discovery, and the witness’s lawyer may take questions “under advisement” to delay answering without a formal objection. To control costs, Ontario has limited examinations for discovery to seven hours per party since 2010, and British Columbia implemented similar limits. In mainland China, it is generally illegal to take depositions for use in foreign courts.
Reader's Guide
The modern deposition by oral examination began to develop in New York in the early 19th century when Chancellor James Kent allowed masters to examine witnesses in real time rather than read static interrogatories, and allowed parties and counsel to be present. This ended secrecy and led to lawyers taking over examinations. During the late 19th century, summary narratives were replaced by verbatim transcripts by court reporters. The merger of common law and equity procedure reduced the deposition to its modern role as a discovery and evidence preservation device. In the United States, depositions are governed by Rule 30 of the Federal Rules of Civil Procedure, limiting depositions to ten per side and seven hours per deponent.
Did You Know?
- In Canada, the proceeding is called an examination for discovery (French: interrogatoire préalable).
- In mainland China, it is generally illegal to take depositions for use in foreign courts.
- In some unusual situations, depositions can be taken during or even after trial in the United States.
- California is a major outlier on deposition objections; most objections must be given on the record at the deposition or they are permanently waived.
Frequently Asked Questions
What is a Deposition in law?
A deposition is a sworn, out-of-court oral interview of a witness conducted by attorneys, with the spoken answers captured in a written transcript. It functions as both a discovery tool and a way to preserve testimony for later courtroom use.
What role does a Deposition play in litigation?
It lets each side question a witness under oath before trial, gathering information and locking in the witness's account so it can be used to impeach them later if they change their story. It is a standard feature of civil litigation in the United States and Canada.
How does a Deposition differ from testifying in front of a judge?
A deposition is conducted outside the courthouse, led solely by the parties' own lawyers, with no judge present to manage proceedings. The witness still swears an oath, but the setting is a conference room rather than a courtroom, and the tone is driven by the attorneys asking questions.
Where did the Deposition originate and who shaped its modern form?
The practice first appeared in English courts of equity around the mid-15th century, but its contemporary structure was largely developed in early 19th-century New York. Chancellor James Kent is widely credited as the key figure who refined the procedure into the form still used today.
Why is the Deposition considered important to the legal system?
It gives both parties a reliable mechanism to secure a witness's testimony before trial, preventing later disputes over what was actually said. Without it, lawyers would have far less ability to prepare their cases or hold witnesses to their earlier sworn statements.
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