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How to Prepare a Deposition: A Guide for Divorce Attorneys and Clients

Categorized as Divorce, Divorce Litigation

Depositions are an important discovery tool used by divorce attorneys to prepare for trial. While depositions are important for your case, they can be very intimidating, especially when the client has a lot at stake and is not familiar with the deposition process. Depositions are authorized under Illinois Supreme Court Rules 202 and 206. There are two types of depositions, discovery and evidentiary and the type of deposition must be stated in the Notice of Deposition.  In this article, we discuss how to prepare for a deposition, including preparing yourself and the client for successful outcomes.

How to Prepare for a Discovery Deposition

The majority of depositions will be discovery depositions. This means that the party taking the deposition can ask questions that are likely to lead to discoverable information. The goal of the party taking a deposition is usually to get the deponent speaking and sharing information. The goal of the deponent and their attorney should be to limit the answers in a deposition to only answer the questions asked and not to volunteer information. This can be tricky when you have a nervous client and an experienced attorney on the other side.

Most attorneys will start a deposition off by giving an admonishment.  It is typically around 10 short explanations and a few questions of what a deposition is and what is expected during the deposition. This admonishment serves two purposes:

  1. To protect the deposition from possible objections later on, and
  2. To allow the attorney taking the deposition to establish a rapport with the deponent. The attorney taking the deposition wants to establish a rapport with the deponent so that the deponent will let their guard down and provide information that would normally not be provided.

That is one reason it is important to prepare the client for the deposition. Another reason is that while depositions are not submitted to the Court, they can be used to impeach or discredit the witness during a trial. A little change in testimony between the deposition and in court testimony can be enough to throw off a client who is already nervous and make the client look less credible to the Court. Client’s need to understand the importance of a deposition and be adequately prepared.

As the attorney, before you can prepare your client, you need to prepare yourself.  Hopefully by the time the deposition is set, you have been involved in the case for a while and are familiar with the issues.  Before preparing your client, it is important to review the pleadings and know what issues are still outstanding. Many times, other discovery such as requests for production and interrogatories have been completed by the time the deposition arrives. The attorney should be familiar with the client’s documents and the answers to the interrogatories as they will likely be used in the deposition.

The attorney’s job in preparing their client for a divorce deposition is to know the other party’s argument well enough that the attorney can anticipate the line of questioning. The attorney also needs know what issues may lead to a need to object and be prepared with the objections.

Once the attorney is prepared, it is time to prepare the client. While knowing the case and the opposing party is important, it is also important to know your client. By this time in the case, the attorney and client should have met at least a few times and the attorney should know how the client answers questions or reacts to tough or uncomfortable situations. Some clients are more savvy than others. Some clients may have had their depositions taken before and may not need much prepping from the attorney. Other clients are new to the deposition and may not understand all the legal issues in this case. Each client should be prepared based on their individual personality and ability to understand the situation and answer questions.

Do a Mock Deposition

Whether the client is legally savvy or completely clueless, it is important to meet with the client so they understand what is going on and what pitfalls to avoid. The most helpful thing I think is to have a “mock deposition.” Meaning go through the questions you think the opposing counsel will ask your client in a deposition and have the client answer as if they were in the deposition. It is especially important to go over tricky issues with you client, and likely you will need to go over these issues more than once.

One area that deponents have issues is that they want to tell their story. The attorney taking the deposition will love this, because they are getting information that could possibly be useful to their case. The client needs to realize that a deposition is not the time to explain or tell their story, they will get a chance to tell their story during a trial or hearing when their own attorney is questioning them. The deponent simply needs to answer the question, and should practice answering questions without giving extra information. It is important when practicing for a deposition to pay attention to the way answers are worded and to work with the client on the best way to answer a question.

Other Helpful Tips in Preparing for a Deposition

Here are a few other practical preparation tips:

  1. Pause before answering a question.
  2. Only answer questions that you understand and if you do not understand, ask for clarification.
  3. Never guess
  4. Never speak in absolutes (“never,” “always”).
  5. Stay calm.
  6. You can ask for a break.
  7. Conversations with your attorney are confidential.

Divorce litigation, or family law matter litigation, is always stressful.  With planning and a few simple preparation steps, you can make it easier on, the client, and everyone involved.   

If you are facing divorce litigation in Illinois or have questions about how to prepare for a deposition be sure to talk to your Anderson & Boback Attorney.  Contact Anderson & Boback to schedule confidential consultation related to any aspect of your divorce process.

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