An examination before trial, usually called an EBT or a deposition, is a formal session during the discovery phase of a civil lawsuit where a witness answers questions under oath outside the courtroom. A court reporter takes down every word. Under the Federal Rules of Civil Procedure, each side generally gets up to ten depositions, and each one can run up to seven hours of questioning in a single day. Because you are sworn in, your answers carry the same legal weight as testimony on the witness stand, and they can be used against you for the rest of the case.
Why the Other Side Wants to Depose You
At its core, an EBT is a fact-finding exercise. The opposing attorney gets to question you directly about what you saw, what you said, what documents you have, and who else might know something relevant. The scope is broad: under the federal discovery rules, anything relevant to a party’s claim or defense and not privileged is fair game, even if it would not itself be admissible at trial.1Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
An EBT also locks in your version of events. Once an answer is on the record, changing your story at trial becomes very difficult. If you testify differently from the stand, opposing counsel can read the deposition answer back to the jury and ask you to explain the contradiction. The federal rules specifically allow any party to use a deposition to contradict or impeach a witness.2Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings That moment rarely goes well for the witness.
Beyond the words on the page, the opposing lawyer is sizing you up. How confident are you? Do you get rattled under pressure? Would a jury believe you? The impression you make heavily influences whether the other side offers a settlement and how much they put on the table.
Who Can Be Required to Testify
If you are a party to the lawsuit, whether plaintiff or defendant, you should expect to be deposed.
Non-parties can also be compelled to appear through a subpoena, with limits. A deposition subpoena can only require someone to travel within 100 miles of where they live, work, or regularly do business.3United States Courts. Subpoena to Testify at a Deposition in a Civil Action If you receive one as a non-party witness, ignoring it is not an option. Failing to comply can result in contempt of court.
When the Witness Is a Company
When the deponent is an organization rather than an individual, the rules work differently. The requesting party names the organization and lists the topics they want covered. The organization then has to designate the right person or people to testify on its behalf and prepare them to answer about what the organization knows, not just what any one employee personally saw.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Sending an unprepared witness risks sanctions. This is one of the more powerful discovery tools in commercial litigation because it forces the company to figure out who knows what.
How to Prepare
Preparation with your attorney is where EBTs are won or lost. Your lawyer will walk you through the legal theories in the case, anticipate the lines of questioning you are likely to face, and help you understand which topics matter most. The point is not to memorize answers but to get comfortable enough with the facts that you can respond clearly and accurately under pressure.
A major part of preparation is reviewing every relevant document: contracts, emails, text messages, medical records, accident reports, and any prior statements you have made in writing or on tape. The opposing attorney almost certainly has copies and will use them as the backbone of their questions. Getting caught off guard by your own words is one of the easiest mistakes to avoid and one of the most damaging when it happens.
Your attorney will also coach you on mechanics. The core rules are simple but hard to follow under stress:
- Listen to the full question before you start thinking about your answer.
- Pause before responding. That gives your attorney time to object if needed and gives you time to think.
- Answer only what was asked. Volunteering extra information is the single most common deposition mistake. If the question calls for a yes or no, give a yes or no.
- Say so when you don’t know. “I don’t know” and “I don’t recall” are perfectly legitimate answers when they are truthful. Guessing to fill silence is not.
What the Session Looks Like
Most EBTs take place in a conference room at an attorney’s office. In the room will be you, your attorney, the opposing attorney, and a court reporter creating a verbatim record. In cases with multiple parties, additional lawyers may attend. A videographer may also be present if the testimony is being recorded on camera.
The court reporter starts by placing you under oath. From that point forward, lying carries the same legal consequences as lying on the witness stand. The opposing attorney then begins asking questions. Your own lawyer generally stays quiet during this phase. Their job is to listen, take notes, and step in only when something goes wrong procedurally.
Time Limits and Breaks
Under the federal rules, a deposition is limited to one day of seven hours of actual questioning.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Breaks, off-the-record discussions, and lunch do not count against the clock. The court can allow more time when the circumstances require it, such as in a complex case with extensive document review, and the parties can also agree to a different limit on their own.
You are allowed to take breaks, and your attorney can request them. One practical caution: do not discuss your testimony with your lawyer during a break while a question is pending. Opposing counsel will ask whether you spoke with your attorney during the break, and anything that suggests coaching undermines your credibility.
Remote and Video-Recorded Depositions
EBTs do not have to happen in person. The parties can agree, or the court can order, that one be conducted by telephone or video conference. The deposition notice must specify the recording method, and the federal rules allow audio, video, or stenographic recording.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Remote depositions on platforms like Zoom have been routine since 2020.
If the session is video-recorded, the recording cannot distort the deponent’s appearance or demeanor. The resulting video can be played at trial, which is why attorneys often tell witnesses to dress and behave as they would in a courtroom even when testifying from home.
Objections and Your Protections
Questioning at a deposition is not a free-for-all. Several procedural safeguards exist to keep things fair.
How Objections Work
When the opposing attorney asks an improper question, your lawyer can object. Unlike at trial, though, the objection does not stop the proceeding. The objection is noted on the record, and you still answer the question. A judge sorts out later whether the answer is admissible. Objections must be stated briefly and non-argumentatively; your attorney cannot use them to coach you or signal the answer.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
Your attorney can instruct you not to answer only in three narrow situations: when answering would reveal information protected by attorney-client privilege or another recognized privilege, when a court order already limits the scope of questioning, or when your attorney needs to suspend the deposition to seek a protective order.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Outside those grounds, refusing to answer will likely draw a motion to compel and possibly sanctions.
Protection Against Harassment
If the questioning crosses into bad faith, intimidation, or conduct designed to embarrass or oppress you, your attorney can demand that the deposition be suspended. Either side can then ask the court to terminate the deposition or limit its scope, and while that motion is pending the deposition stops.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination The court can shift the expenses of bringing the motion to whichever side loses it, so attorneys generally think twice before using genuinely abusive tactics.
The Fifth Amendment
Even though this is a civil proceeding, you can invoke the Fifth Amendment privilege against self-incrimination if answering a question could expose you to criminal prosecution. The consequences, though, differ from a criminal case. In civil litigation, the judge or jury may draw a negative inference from your refusal to answer, essentially assuming the answer would have been unfavorable. That makes invoking the Fifth a strategic decision your attorney should help you think through well before the deposition starts.
Reviewing and Signing the Transcript
After the deposition ends, the court reporter produces a written transcript. If you or your attorney requested a review before the session concluded, you have 30 days after being notified that the transcript is available to read it and flag errors.4Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination Make sure your attorney actually makes the request on the record before the deposition wraps up. If nobody asks, you may lose the right to review.
If you find mistakes, you list each change and the reason for it on what is commonly called an errata sheet. Corrections can address typos, transcription errors, or substantive clarifications. Be aware that substantive changes will be scrutinized. Opposing counsel sees the errata sheet and can question you about any changes at trial. Courts vary on how far you can go: some allow meaningful corrections, others limit changes to transcription errors, and wholesale rewrites of testimony will likely be challenged.
After making any corrections, you sign the transcript, attesting to its accuracy. If you do not return a signed copy within the 30-day window, the court reporter notes that fact, and the transcript can be used as if you had signed it.
How the Testimony Gets Used Later
The transcript does not just sit in a filing cabinet. It becomes a live tool in the lawsuit.
The most common use is impeachment. If you say something at trial that conflicts with your deposition testimony, the opposing lawyer puts the two versions side by side in front of the jury. The federal rules explicitly authorize this for any witness.2Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
Attorneys also pull deposition excerpts into pre-trial motions, particularly motions for summary judgment. If your testimony concedes a key fact, the other side will cite it to argue that no trial is needed on that issue.
In some situations, the transcript can substitute for live testimony entirely. If a witness is unavailable at trial because they have died, are more than 100 miles from the courthouse, are too ill to attend, or cannot be reached by subpoena, their deposition can be read into evidence or played on video as if they were in the courtroom.2Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings For some witnesses, the deposition may be their only appearance in the case, which is one reason attorneys treat it as seriously as trial testimony.
What Happens If You Lie or Refuse to Cooperate
Because you are under oath, lying at a deposition is perjury. Under federal law, perjury is a felony punishable by up to five years in prison.5Office of the Law Revision Counsel. 18 U.S. Code 1621 – Perjury Generally Prosecutions for deposition perjury are uncommon, but the threat is real, and even if criminal charges never come, getting caught in a lie will devastate your credibility in the civil case.
Failing to show up or refusing to answer after being ordered to do so carries its own penalties. The court can hold you in contempt and impose a range of sanctions:
- Monetary penalties. The court can require you or your attorney to pay the other side’s reasonable expenses, including attorney’s fees, caused by the failure to cooperate.
- Evidentiary sanctions. The court can treat disputed facts as established in the opposing party’s favor or bar you from offering certain evidence.
- Case-ending sanctions. In extreme cases, the court can strike your pleadings, dismiss your lawsuit, or enter a default judgment against you.
These sanctions apply to parties and their attorneys alike. Courts have broad discretion to tailor the penalty to the misconduct, and they use it.6Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
What EBTs Cost
Depositions are one of the more expensive parts of discovery. The party that schedules the session generally pays the court reporter’s appearance fee and the cost of the original transcript. If the other side wants its own copy, it pays separately.
Court reporter appearance fees commonly run between $150 and $400 per session, depending on location. Transcripts are charged per page, with standard rates typically between $4.50 and $7.00 per page. A full day of testimony can easily produce 200 to 300 pages. Add video recording, expedited delivery, or a real-time feed, and a single deposition can run into several thousand dollars before you count the attorney time spent preparing and attending.
These costs are worth keeping in mind when a settlement offer lands on the table. In complex cases with dozens of witnesses, deposition expenses alone can reach six figures across both sides, which is one reason many cases settle before all scheduled depositions are completed.