What Happens at a Deposition in Texas?

Depositions can seem intimidating, especially with how they’re portrayed in popular media. But if you’ve been served a deposition notice in a personal injury suit, there’s no reason to stress. The DFW attorneys of The Wilhite Law Firm are ready to represent you and keep the proceedings fair. Contact us today to learn how we can help in a free initial consultation session.

What Is a Deposition?

A deposition is a formal testimony that a witness in a civil lawsuit provides out of court. There are two key types of depositions in Texas:

• Depositions upon oral examination – Oral hearings are the more common type of deposition hearing. In this type of hearing, an “examiner” – usually a lawyer – will ask questions of a witness or another party to the case. The witness does not know the questions beforehand, and a court reporter transcribes their response to each question.
• Depositions upon written questions – In these deposition hearings, the witness receives written questions in advance. Their legal team has a time limit to evaluate each inquiry. Once objections are squared away, the witness must answer the questions before an examiner and court reporter.

As with in-court testimony, witnesses in a deposition testify under oath. Once someone receives a deposition notice, they must attend the hearing at the required time. They must answer each question truthfully and to the best of their knowledge.

Is a Deposition Mandatory?

Depositions are not automatically required in all Texas personal injury cases. However, they are a standard part of the legal process, enabling both sides to gather information and testimony under oath before a trial.

Depositions also serve as strategic tools to help attorneys establish the facts, assess a witness’s knowledge and credibility, see how they might perform if asked to testify at trial, and gather information from experts. Deposition testimony can be used as evidence to help strengthen your case. Sometimes, information revealed during a deposition also helps settlement negotiations when weaknesses in one side’s position come to light.

Depositions are particularly significant in personal injury claims when:

• The facts are in dispute.
• The parties contest fault.
• The parties disagree on the cause or extent of injuries.
• The potential compensation amount is exceptionally high.
• Settlement negotiations have stalled.

While plaintiffs are not strictly required to comply with deposition requests from the at-fault party or their lawyer, a refusal can harm their credibility and case standing. Defendants in Texas personal injury lawsuits are not legally obligated to give depositions, but refusal to participate may suggest they have something to hide. However, if the court requests the deposition, the witness is required to attend.

That said, there are times when you and your lawyer may choose to waive your right to request a deposition from witnesses or the at-fault party, such as when:

• Both the defendant’s fault and your injuries are undisputed. In straightforward cases, depositions may not be necessary.
• The at-fault party offers a reasonable settlement before depositions. If you’re satisfied with the offer, you can accept it without going through depositions.
• Your attorney advises waiving depositions for strategic reasons. They might believe it’s the best legal strategy for your case.

It’s essential to discuss your options with your personal injury lawyer to decide the best approach based on the specifics of your case.

Who Can Attend a Deposition in Texas?

In practice, depositions are typically small gatherings limited to necessary participants, including:

• The person being asked the questions (deponent or witness)
• The other party
• Attorneys for both parties
• Court reporter or someone certified to take oaths
• Videographer (for depositions taken by video)
• Either party’s spouse

However, Texas law allows a party to have additional attendees if they provide reasonable notice to all parties in the deposition notice. This ensures transparency and allows parties and attorneys to prepare accordingly. Generally, anyone can attend a deposition in Texas if proper notice is provided, but disputes may require a protective order to address confidentiality concerns.

Are Both Parties Present at a Deposition?

Typically, the only people present at a deposition are the person being asked the questions (known as the deponent or witness), the deponent’s attorney, the attorney for the opposing party, and a court reporter. If the deposition occurs by video, a videographer will be present.

If you are a plaintiff in a lawsuit and are having your deposition taken, an experienced Texas personal injury lawyer can guide you through the deposition proceedings. Usually, the opposing party’s attorney will question you without the negligent party who caused your injuries.

What Are the Four Types of Depositions?

The four main ways to conduct a deposition are in-person, remote, hybrid, or written.

In-Person Depositions

In-person depositions are the most traditional form of conducting depositions. They are live question-and-answer sessions where participants are all present in the same location. In-person depositions typically occur at the office of the attorney who requested the deposition. A court reporter stenographically records the deposition and transcribes it into written form.

Attorneys have traditionally preferred in-person depositions because the live aspect gives insight into the opposing party’s case and provides a glimpse of how a party or witness will be perceived at trial.

Remote Depositions

Texas law allows for remote depositions conducted using technology. Participants (lawyers, witnesses, court reporters, and videographers) are in different locations. Remote depositions are identical to in-person depositions to the extent the technology allows. In remote depositions, the parties can share exhibits and other documents in advance or be introduced to documents in real time by deposition technology platforms.

Today, many depositions are conducted remotely due to new technologies and cost-effectiveness, a trend accelerated by the COVID-19 pandemic. Once uncommon, remote depositions have become a staple of modern litigation practice. Given the size of Texas, having the option for remote depositions helps with travel costs and logistics, particularly in rural areas.

Hybrid Depositions

A hybrid deposition has features of a remote deposition. Some of the participants are in one place together, while others are in other separate locations. It could be that the witness and their attorney are in one location, the court reporter is participating remotely, and the examining attorney is in yet another location. As with depositions that occur remotely, recordings can be made of hybrid depositions by a court stenographer as well as audio or video recording devices.

Texas personal injury lawyers who want to be in the same room with a witness testifying for their side of the dispute often favor hybrid depositions over fully remote depositions.

Written Depositions

Texas law allows a party to depose a witness by submitting written questions that the witness answers within a given timeframe. This is known as deposition by written questions.

Most attorneys don’t prefer depositions by written questions because they allow the witness time to reflect on their answers and consult with their attorney rather than giving spontaneous and natural responses. Lawyers also cannot observe witnesses to assess their credibility.

Depositions by written questions can be helpful when witnesses are unavailable, making other deposition methods difficult. For example, attorneys may resort to written depositions from incarcerated or international witnesses.

What Is a Deposition Hearing?

A deposition hearing is a legal process during which lawyers from both sides can ask witnesses questions to obtain depositions or sworn testimony.

Because depositions are out-of-court, they must follow the strict protocol outlined in the Texas Rules of Civil Procedure to protect the testimony’s integrity. A deposition can’t be used at trial if it doesn’t follow the rules.

Why Would Someone Be Deposed?

Depositions are a strategic tool as much as they are valuable evidence. If you’re pursuing monetary damages in a personal injury lawsuit, your lawyer might use depositions to:

• Establish the facts of the case before a trial begins
• Determine what a witness knows or doesn’t know
• Gather testimony from expert witnesses or others who can’t appear in court
• “Vet” witnesses to assess what they might say at trial
• Identify inconsistencies or contradictions that weaken a case before going to trial
• “Lock in” testimony describing specific facts or evidence before a trial

What Types of Cases Might Require a Deposition?

While depositions can happen in any lawsuit, they’re especially common in cases involving:

• Car and truck accidents
• Bike and motorcycle accidents
• Jobsite accidents
• Slip and fall accidents
• Medical malpractice
• Nursing home abuse
• Defective products
• Wrongful death

How Long Might a Deposition Hearing Be?

According to Texas’s civil procedure rules, oral depositions cannot last longer than six hours. Longer depositions might involve water, bathroom, or meal breaks. But these break periods do not count toward the time limit.

The process for depositions upon written questions takes longer. If you are summoned for a written deposition, your lawyer has ten days to file objections or ask cross-questions. An examiner then has five days to respond. Once there are no objections, a final hearing for a written deposition can occur. The whole process can take at least 20 days before the deposition is taken.

What May Be Involved During a Deposition Hearing?

The deposition process begins when you receive a notice of intent. This document will detail the following:

• Where and how the deposition will happen – If the hearing is in-person, civil procedure rules usually say it must occur in the county where you live or work. However, hearings can also take place over the phone or via videoconference.
• Who will attend – The notice must specify whether anyone else can attend beyond your spouse and legal team.
• What to bring – The notice might ask you to bring specific items or documents to the hearing.

At the hearing, a court reporter will swear you in before the examiner asks their first question. If your lawyer believes a question is procedurally improper, they might object or advise you not to answer it.  According to procedural rules, your attorney could object to a question on any of the following grounds:

• Leading – The question asks you to draw a legal conclusion the examiner desires.
• Form – The question is harassing, overgeneralized, has no basis, uses information outside of evidence, or has already been answered.
• Non-responsive – The witness’s response is unrelated to the question at hand.

If your lawyer objects, the court reporter must record it but cannot make a ruling. Once the examiner has no further questions or the time limit expires, the deposition hearing ends.

Am I Allowed to Have My Attorney Present at a Deposition?

Deposition rules allow your lawyer and their staff to attend deposition hearings with you. However, it’s always best to work with a lawyer long before a deposition hearing begins. An experienced attorney can anticipate what the examiner will likely ask and advise you on what to say to protect your rights. Your lawyer will aim to keep the proceedings fair and improve your odds of a good outcome.

What Happens After the Deposition?

After a deposition hearing, both legal teams will review the court reporter’s transcript. These transcripts are sometimes hundreds of pages long, so it’s common for the review process to last a few weeks. If your lawyer believes the court reporter made an error, they can request a correction. However, they cannot change the meaning or material content of a deposition.

Once the transcript clears review, it becomes part of the official court record. Both lawyers will receive final copies of the transcript and can use testimony from the deposition to build their cases.

Contact The Wilhite Law Firm

Since 1977, The Wilhite Law Firm has stood up for injured clients against negligent parties and their insurers. If you’re facing a deposition in your Texas personal injury case, our large and talented team is here to handle all the legal details so you can focus on your recovery and well-being. We’re available whenever you need us, so contact our Fort Worth or Dallas offices today for a free case review.