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In almost every contested case, yes. A deposition is sworn testimony taken before trial, in a conference room rather than a courtroom. A court reporter records every word, a camera is usually running, and there is no judge present. The defense lawyers ask the questions, and your own attorney sits beside you.
Most of what survivors fear about a deposition is either not accurate or can be arranged in advance. Most of what goes wrong cannot be fixed on the day itself, so raise your questions with your attorney weeks ahead. Call 713-521-0059 and ask about it directly if the deposition is what has kept you from calling.
Yes, in most cases. You are sworn in, and a defense lawyer asks questions that you answer out loud, one at a time, while a court reporter takes down everything said. Your lawyer may object, but in a deposition most objections are stated for the record and you still answer, unless the objection concerns a privilege.
Sessions are typically several hours and can run a full day, with a lunch break and other breaks in between.
In most depositions you may also ask for a break at any time, for any reason, and you do not have to explain why. The transcript usually arrives weeks later, and you are given a chance to review it.
It is not a cross-examination in front of a jury, and usually nothing is decided that day. No one wins or loses a deposition. It is information gathering, and the defense’s purpose is to learn what you will say at trial and to lock it in.
Not in every case. Whether the individual defendant attends the deposition, and where anyone sits, is something that can be raised with opposing counsel and with the court beforehand. It is a much harder conversation to have an hour before the deposition starts.
The subjects are broader than most people expect, and there is one Texas-specific point you are entitled to know before the day rather than during it.
Texas has no rape shield rule for civil cases. Rule 412 of the Texas Rules of Evidence applies to criminal prosecutions. Federal Rule of Evidence 412 does reach civil cases. In Texas state court the limits come from relevance, from Rule 403 and from protective orders rather than from a categorical rule. We explain that in full on a separate page, because you should not first learn it in a conference room.
They may also ask about these additional subjects:
The scope of your treatment records is discussed on our page about therapy records. It turns on decisions made in the case rather than on the mere fact that you sued. Inconsistency is what the repeated questioning is designed to produce, and ordinary human memory produces it whether or not anything is wrong.
Conversations with your own lawyer are not a proper subject of questioning by the defense.
Communications with a rape crisis advocate are protected by Section 420.071 of the Government Code. It makes confidential the communications made while an advocate is advising, counseling or assisting a survivor, and the related records. Subject to the exceptions in Section 420.072, it gives the survivor a privilege, in any civil, criminal, administrative or legislative proceeding, to refuse to disclose them and to prevent another from disclosing them.
Mental health records are protected to the extent the privilege stands. Texas Rule of Evidence 510 protects them, subject to the exception where a party relies on the condition as a part of a claim or defense.
Three habits make the biggest difference in how your testimony reads later.
Answer the question asked, then stop. Silence after your answer is a questioning technique, and it is not your responsibility to fill it.
Say you do not know, or do not remember, when that is true. Guessing produces exactly the inconsistency the questioning attorney is looking for. If you do not remember the sequence of events during an assault, you are describing trauma accurately, not testifying badly.
If you do not understand the question, say so, and ask for it to be repeated. A compound or confusing question that you answer anyway can become a quotation later.
These are the things worth raising with your lawyer weeks before, not the morning of:
Most of this is negotiated between the attorneys without a court ever issuing a ruling. When it is not, you can ask the court for protection, and that request is far stronger filed in advance than argued at the table.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
Knowing who will be there in advance helps you prepare. Ask to see the room first, because walking into a space you have already seen removes a surprising amount of the anxiety.
Tell your attorney the most difficult fact before the defense discovers it. A difficult fact you have prepared for becomes a point you can answer, while the same fact heard for the first time at the table is much harder. Prepare, but do not rehearse a script. The goal is that nothing asked is the first time you have thought about it.
If the deposition is the reason you have not called anyone, ask about it directly on the first call. It is a fair question, and it deserves a specific answer about your case rather than general reassurance. Not every case reaches a deposition, and many cases resolve before one is taken. But you should decide whether to pursue a claim knowing what it may involve, not on an assumption that it will not.
Schiffer Law Firm is a Houston personal injury firm with 50 plus years of combined experience representing injured people and survivors across Texas.
If you are an advocate or a counselor asking on someone’s behalf, you are welcome to call with a general question. We will not ask you for their name.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Written by Jacob Schiffer, Attorney, Schiffer Law Firm. State Bar of Texas No. 24105175.
Call 713-521-0059.
Not necessarily. Whether an individual defendant attends, and where people sit, can be raised with opposing counsel and with the court in advance. It is much harder to address on the day of the deposition.
No. It is sworn testimony taken in a conference room with a court reporter and usually a camera, with no judge and no jury, and usually nothing is decided that day. Its purpose is to learn and to lock in what you will say.
In Texas state court there is no civil rape shield rule. Rule 412 of the Texas Rules of Evidence applies to criminal cases. The limits come from relevance, Rule 403 and protective orders. Federal Rule 412 does apply in federal civil cases.
Communications with your own lawyer, and communications and records between you and a rape crisis advocate under Section 420.071 of the Government Code. That section gives the survivor a privilege, subject to limited exceptions, to refuse and to prevent disclosure in any proceeding. Mental health records are protected by Rule 510 subject to its exceptions.
In most cases, yes. You may ask for a break at any time, for any reason, and you do not have to explain why.
Guessing at an answer. Saying you do not know or do not remember, when that is true, is a complete and accurate answer. Not remembering the sequence of events during an assault is a description of trauma, not a weakness in your testimony.