A party may take the oral deposition of any person who has information relevant to the litigation. The person to be deposed may agree to appear at a certain time and place for the deposition, or the deposing party may ask the court to order the witness to appear. All of the parties to the litigation must be notified of the time and place for the deposition. Each party to the litigation has the right to be present and to question the witness, usually through attorneys.

At the beginning of the deposition, the witness must swear or affirm an oath to tell the truth. The deposition is recorded stenographically or electronically. Many depositions are now videotaped. This is useful if the witness does not appear at trial. If either a witness’s or a party’s testimony at trial is substantially different from their deposition, the videotape can be played at trial to impeach the testimony. After the deposition is completed, a transcript will be prepared so that the attorneys and the judge will be able to discuss the admissibility of each question and answer. This transcript can also be entered into evidence at trial to create a record of proof if the testimony changes between the deposition and the trial.

The attorney requesting the deposition asks the first questions. When this attorney completes the questioning, the attorneys for the other parties ask their questions (cross- examination). When all the parties’ attorneys have had their turn, the requesting attorney may ask additional questions (redirect), starting the round robin again. This process of cross-examination makes depositions time consuming for the participants and expensive for the clients. It is not unusual for a deposition of a party in a simple case to last for a day. In complex matters, such as Medicare fraud cases, a party may be deposed for days.