Paper Trail is a 12-part series that follows a single fictional case through every phase of American civil litigation, from pre-litigation to post-trial.
In Part 6, discovery reshaped both sides’ understanding of the case. Patty confirmed that Depot Print Shop had received prior complaints about stacked inventory. She also obtained surveillance footage and an internal email showing that the manager knew about the hazard but never addressed it. Depot Print Shop obtained footage of Patty looking at her phone moments before she fell, along with a medical opinion questioning how much recovery time she needed. Neither side settled, and now they both want to hear that evidence explained, defended, and tested live.
What Happens at a Deposition
A deposition is sworn, recorded testimony taken outside of court, with a court reporter present to capture every word. A witness answers questions under oath, just as they would on a witness stand, but there’s no judge in the room and no jury watching.
Testimony given during a deposition later can be used to challenge a witness if their story changes at trial, a litigation technique called impeachment. Attorneys also get a first glimpse of how a witness performs under pressure. Were they composed, evasive, nervous, or prone to over-explaining? That preview helps determine if or how the attorney wants to include that witness at trial.
And because a witness is answering questions live rather than carefully drafting responses, depositions tend to unveil information that would have been edited out of written answers.
Who Gets Deposed
In this case, five people will sit for depositions. Amanda deposes Depot Print Shop’s manager, the employee who stacked the paper Patty slipped on, and the doctor Depot Print Shop hired to examine Patty. Depot Print Shop’s attorney deposes Patty and her treating physician. Each one represents a different kind of deponent.
Fact Witnesses vs. Expert Witnesses
A fact witness testifies about what they personally observed, did, or experienced. An expert witness is brought in for specialized knowledge relevant to the case, often someone with no connection to the events prior to litigation.
Patty, the Depot Print Shop employee, and the store manager are all fact witnesses, since they were all directly involved in the events that led to this lawsuit. Patty’s treating physician is also a fact witness. He examined and treated Patty when she came to him after her fall, and his testimony describes that standard medical care. He formed his observations and diagnosis before anyone filed a lawsuit, for treatment purposes, not for trial.
The physician Depot Print Shop hired for Patty’s independent medical examination, however, is an expert witness. He never treated Patty prior to litigation, has no outside knowledge of her injury, and was hired specifically to evaluate her for this case.
Deposing a Company
A company can be a defendant in a lawsuit, but it can’t sit for a deposition. The law requires corporate defendants to designate a person to testify on its behalf instead. These are often called 30(b)(6) depositions, referencing the federal rule, and the designated witness is ideally the person most knowledgeable about the topics listed in the deposition notice.
Depot Print Shop designates the store manager as its witness, since he’s the one closest to the store’s policies, typical operations, and the circumstances surrounding Patty’s fall. The manager’s answers, therefore, are legally treated as the company’s own statements.
How Witnesses Are Notified
A party to the case is served with a Notice of Deposition (NOD), a straightforward filing that sets the date, time, and location. Patty is served with an NOD and so is the manager, since he’s appearing on behalf of the defendant as Depot Print Shop’s designated witness.
A non-party witness has no existing obligation to the court, so a notice alone has no power to compel them. Instead, non-parties must be served a subpoena. The employee who stacked the paper Patty slipped on no longer works at Depot Print Shop, so Amanda has to find him and subpoena him to compel his appearance.
A subpoena can also be used to compel a witness to bring documents with them, called a subpoena duces tecum, though nothing in this case calls for one.
Making the Record
The whole point of a deposition is to create a record that can be used later, whether that’s at trial, in a motion, or to hold a witness to what they said. How that record is made, and in what form, determines what’s available to use once the deposition is over.
The Court Reporter
A court reporter administers the oath, where the witness swears to tell the truth, and creates a verbatim record of everything said during the deposition. Some reporters do this by typing on a stenography machine, and others work as voice writers, repeating everything said into a mask connected to speech-recognition software instead. Either way, the result becomes the official written transcript. That transcript is what makes impeachment possible later, since there’s now an exact, sworn account of what a witness said to compare against their trial testimony.
Video Depositions
A deposition is always taken down on paper, but can also be recorded on video. Video captures what a transcript can’t, like the deponent’s hesitation, tone, body language, facial expressions, confidence, or visible struggle. It can also be valuable if a witness ends up unavailable for trial, since video testimony can sometimes stand in for live testimony in that situation.
The Transcript
The deposition transcript is the finished, written version of everything the court reporter captured. Once it’s completed, the witness typically gets a chance to review it and correct any errors before it becomes final. From there, it’s the document both sides will cite, quote, and rely on for the rest of the case. Steno’s AI-powered Transcript Genius helps attorneys search and pull from transcripts quickly, since one case might include several deposition transcripts, each hundreds of pages long.
Ground Rules During a Deposition
Attorneys can object to questions asked during a deposition, but objections at this stage work a little differently than they do at trial. Rather than being argued and ruled on in the moment, a deposition objection is typically just stated for the record, then the witness answers anyway.
Not every objection needs to be raised during the deposition, but some do. An objection to the form of a question—for example, if it’s vague, leading, or compound—has to be raised during the deposition or the right to object is waived permanently. The idea is that a problem with the way the question was asked (i.e., the form) can be fixed on the spot by rephrasing, so not speaking up as the question is asked forfeits the right to dispute later, once the opportunity to rephrase has passed.
Most other objections, like relevance, work the opposite way. They’re preserved automatically for trial whether or not the issue is brought up at the deposition, since they’re not something the attorneys can fix in the moment, without a judge present.
Privilege, covered in Part 6, is one of the few situations where an attorney can instruct a witness not to answer at all, rather than letting the answer come out and objecting to it later. Once privileged information is spoken out loud, the opposing counsel cannot un-hear it even if a judge later rules the question improper, so this exception allows attorneys to silence the answer outright.
Most jurisdictions also cap how long a deposition can run, typically one day of no more than seven hours of testimony, absent an agreement between the parties or a court order extending it. This helps keep depositions focused on gathering information, not wearing down the witness or running up costs.
What Comes Next
All five depositions in Patty v. Depot Print Shop take place. The manager’s does not go smoothly. As Amanda’s questions move closer to the manager’s awareness of the danger of the stacked paper, he becomes visibly agitated, dismissive, and short with his answers. When asked directly whether he had been warned about the stacked paper before Patty’s fall, his tone shifts noticeably. That’s the type of moment a transcript alone cannot capture. Luckily, Amanda elected to videotape his deposition, so now the jury will be able to see it too.
In the next installment of Paper Trail, both sides head into motion practice armed with what these five depositions revealed. Start at the beginning to read Patty’s story from the morning of the incident to final resolution.
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