When you are in the process of a divorce, your spouse’s attorney may send a notice to your attorney that they intend on taking your deposition. A deposition notice will tell you when and where you are to appear and what, if anything, you are to bring with you. Your attorney will likely work with you to make sure you are prepared for your divorce deposition, as preparation if very important.
People present at your deposition will be your attorney and your spouse’s attorney. Your spouse may be there as well. If there are any other attorneys involved in your divorce case, such as a Child Representative or a Guardian Ad Litem, they will also likely be present if your deposition will include questions about the children. There will also be a court reporter who will take down every word that is said by anyone in the room during the deposition period. A typical divorce depositions can last up to 3 hours.
A Judge does not attend the deposition and will not even review the deposition transcript unless called upon to do so by one of the attorneys. The procedure itself is straightforward. After everyone is seated and ready, the court reporter will ask you to raise your right hand and take the oath. The attorneys in the room will then take turns asking you questions, but most, if not all, questions to you will be from your spouse’s attorney. The court reporter will record everything said by all in the room. This record will later be made into a typed, word-for-word transcript of the questions asked and the answers given during the deposition. Depositions can seem very informal, but you cannot let the informality mislead you. Depositions are vitally important, and what you say will be used at trial.
Depositions Help Reveal Useful Testimony and Evidence
Fundamentally, attorneys take depositions to discover what a witness will say at trial and to preserve that testimony for trial. You are being deposed so that the opposing attorney can (1) find out what they can about you to be used at trial; (2) find evidence favorable to their case and may attempt to maneuver you into making statements against your interest; (3) commit you to statements under oath; and (4) gage your likability and how they think a judge will perceive your credibility.
Testimony Under Oath
As a deposition witness, you have a duty to tell the truth at all times. You and your attorney have likely already talked about areas of interest to opposing counsel and it is important that you are prepared to answer questions about those specific areas. Most lawyers are skilled at taking depositions and will know how to make a witness uncomfortable. If you find yourself reluctant to give a completely candid answer because it would be damaging, know that the damage is usually smaller than that caused by a less-than-candid answer. Having said that, you must be prepared for an opposing lawyer who will emphasize the strong points of their client’s case, ignore or try to explain away the weak points, and ridicule your story, and contrive ways to suggest that you are not telling the truth or are in error. Although you must be accurate and candid when testifying in a deposition, you need to be on guard.
10 Helpful Tips When Participating in a Divorce Deposition
Following are a few tips that may help you when you participate in a deposition:
Tip 1: Pause and think before answering.
Listen to the question. Concentrate on every word and wait until you hear the last word of the question before you answer. In ordinary conversation, we cut one another off frequently. In a divorce deposition, however, pause to think before you answer. That way, you will not inadvertently give away information that the opposing attorney never thought of asking for. Additionally, this allows you to concentrate on the substance of your testimony and permits you, rather than the opposing attorney, to dictate the tempo of the deposition.
Tip 2: Never volunteer information.
Don’t be a “helpful” witness. For example, if a friend was to ask you whether you know what time it is, you may say, “ten o’clock” but in a deposition, your answer to that question should simply be “yes” or “no”. If your answer is “yes”, let the attorney follow up with a question, such as “what time is it?” For the most part, keep your answers short and to the point – answer only the question that is asked.
Tip 3: Make sure you understand the question.
Never answer a question unless you fully understand it. It’s up to the examiner to frame intelligible, unambiguous questions. If the opposing attorney can’t do it, do not help her. For example, you may be asked if something happened after “that.” If you are not sure what “that” refers to, say that you don’t understand the question. Don’t say, “if you mean this, then my answer would be such and such; if you mean that, then my answer would be so and so.” You may end up giving your spouse’s attorney an idea that hadn’t occurred to her.
Simply say that you do not understand the question. If something interferes with your ability to hear a question, insist that the full question be repeated to you so you have a full understanding of what is being asked. You have an absolute right to ask for clarification of a question at any time. This does not mean that you should be over-technical or picky about every question. But if a question is ambiguous or unintelligible, insist that it be repeated or restated in terms that you can clearly understand.
Tip 4: If you don’t remember, say you don’t remember.
Sometimes you won’t remember important facts. If you don’t remember the facts that would answer a particular question, say that. The deposition is not a test. If you are pretty sure of the answer but not 100 percent sure, say that.
Tip 5: Don’t guess when responding to a question.
If you don’t know an answer to a question, say so. “I do not know” is a totally proper deposition answer. Witnesses often feel that they should know the answer to a question, then conceal their lack of knowledge by guessing. The attorneys know that the memory of any witness will have limits.
Tip 6: Always read the fine print.
Documents often form the central evidence of a case, and they can be a proper subject for questions in a deposition. You may be asked if you are familiar with a certain document; if you are, you may be asked detailed questions about its contents. The lawyer may also read a portion of a document to you and then ask you questions about it. If this occurs, never testify about the content of a document that you are not completely familiar with unless the document is before you and you’ve been given a full opportunity to read it. You can refer to the document if necessary. If the attorney needs the document to phrase a question, insist that the document be returned to you before you answer. If the attorney suggests that the document states a certain fact, always check to see whether the document actually does before you answer.
Tip 7: Ignore the silent treatment.
Sometimes attorneys engage in a subtle ploy of suggesting, by silence, that you should give a different or more complete answer and you may feel uncomfortable or assume that your answer is incomplete and feel compelled to explain. The attorney may encourage you with silence, tilted head or raised eyebrows or may stare at you with a look of disbelief. Ignore this. When you have answered the questions, stop and wait for the next one. Sometimes, the opposing attorney is simply thinking about how to work the next question. You may be tempted to fill the silence with words but don’t.
Tip 8: Stick to your answer.
You may hear the same question more than once. The opposing attorney may ask you the same question ten different ways and then ask it once more prefixed by, “I cannot remember if I have asked you this, but… ”. This is used for one of two reasons: they’re trying to get a different answer by changing the form of the question, or they’re trying to emphasize something that they think strengthens their case. If your original answer was accurate, stick to it. The fact that the opposing attorney keeps coming back to the question does not mean that you are not answering properly.
Tip 9: Listen for objections.
Your attorney may, although it is very unlikely, object to certain questions and if that happens you must not be distracted by that. If your attorney does object, stop and wait for that to be resolved. The court reporter will note the objection and it may have to be ruled on later by the Judge. Even with an objection, you will usually be expected to answer. Rarely, but not likely, your attorney may instruct you not to answer the question. In that instance, do not answer.
Tip 10: Reviewing the deposition transcript.
After the conclusion of a deposition, you have a right to read the transcript of your deposition testimony and provide your signature. Usually, it is recommended to waive this process and trust that the court reporter took all the information down accurately.
Before you testify in a divorce deposition, be sure to consult with an experienced divorce lawyer to help navigate through the process and protect your interests. Contact Anderson and Boback today for a confidential consultation and get answers to your questions including preparing for a divorce deposition.