The most common type of deposition taken in divorce and custody matters is a discovery deposition. The Opposing Counsel is generally trying to seek answers that lead to further areas to explore in discovery. The attorney is also looking to pin down your story for trial. Attorneys do not like asking questions, at trial, that they do not already know the answers to. Depositions are a way of preventing surprise testimony at trial.
How to behave at the deposition itself:
1. Tell the truth – Telling a lie is the most damaging thing you can do under oath. Even if you have to admit to something that you are not proud of, it is better to admit than tell a lie. You can always invoke your 5th Amendment right not to incriminate yourself, if that is necessary. If your case involves a criminal issue, your attorney can discuss this possibility with you prior to the deposition.
2. Be straightforward in your answers – Respond to Opposing Counsel’s questions attentively and politely. It is also important to respond verbally and not by shaking your head up or down (for yes and no), as there will most likely be a court reporter there and he/she cannot record movements.
3. Make sure you understand the question before answering – If you do not understand the question, ask the attorney to repeat the question or rephrase it so that you understand it.
4. Listen to the question being asked – Do not anticipate the end of the question before it has been asked and do not answer until you hear the entire question.
5. Take your time in answering the question – You can pause for a few seconds or even a minute before answering. Think before answering. Additionally, this gives your attorney time to object to the question being asked, if necessary. If you routinely blurt out your answers, your attorney has no time to object to irrelevant, or otherwise objectionable, questions.
6. Take a break – Breaks are allowed during depositions. If you are thirsty or have to use the restroom, ask for a break.
7. Do not volunteer information – Answer only the question that you are asked. Do not ramble or elaborate on your answers. If Opposing Counsel wants an explanation, he/she can ask you for one. Many times, it is the volunteered information that will come back to harm you.
8. Do not guess or speculate – If you do not know the answer, say so.
9. Beware of questions involving distance and time – If you choose to give an estimated answer, be sure to qualify that it is an estimate.
10. Do not argue or lose your temper – In other words, do not “take the bait.” Depositions can be highly contentions and attorneys know how to push certain buttons, but it is destructive to your case to lose your temper.