|In any divorce, as part of the process, the parties, through their attorneys, will seek information from each other regarding the marital assets and their values, marital debts and their balances and the income of each of the parties. In addition to these tangibles, each party will seek information from the other party regarding the arguments that may be raised at trial including arguments related to fault in fault based states, custody issues and parenting issues and, perhaps, even incidents of alleged abuse and neglect. This is called the discovery process. The primary methods of discovery include sending questions to the other party which must be answered under oath. These are called interrogatories. A similar document requesting records and any documentary evidence is also sent. These are called “Document Requests.” In addition to these two main forms of discovery are depositions.
WHO MAY BE DEPOSED?
Any party or potential witness may be called upon to appear for a deposition. The person being deposed is called the “deponent.”
HOW IS A DEPOSITION SCHEDULED?
To schedule a deposition, a party is served with a Notice of Deposition denoting the date and the time of the deposition. That Notice of Deposition may be accompanied by a subpoena or a subpoena duces tecum which also requires the person being deposed to produce certain documents listed as part of the deposition notice. If the deponent is not a party, the subpoena must be accompanied by a statement and/or check compensating the deponent for their mileage to the deposition. Some states also require that the non-party deponent is compensated for their time at a reasonable rate. This is particularly true where the deponent is an expert witness such as a business appraiser, psychologist or physician.
WHO IS PRESENT AT THE DEPOSITION?
Present at the deposition are generally the parties, their counsel and, in some cases, a Guardian Ad Litem or an expert witness who will later evaluate the testimony of the deponent. A Court reporter will also be present to transcribe the questions and answers as they occur. No Judge is present to preside over the proceedings.
HOW IS THE DEPOSITION CONDUCTED?
The deponent is required to appear at the designated location and time appearing on the Notice of Deposition. This usually occurs in the conference room of a court house or an the attorney’s office. The deposition will be recorded by a court reporter or, in some cases, with prior advance notice, the deposition may be videotaped.
The deposition is commenced when the deponent is sworn in by the court reporter and swears to tell the truth under oath with the penalty for false information. After the deponent is sworn, the party or attorney that is taking the deposition will explain some basic rules regarding the deposition and how it will be conducted. Specifically, it is explained that the deponent will be asked a series of questions and that they must respond out loud to those questions without nodding or shaking their head, so that their answers may be properly transcribed by the court reporter. Additionally, the deponent is also reminded not to respond or interrupt until the complete question has been asked since it is difficult for the court reporter to take down the testimony if two parties are talking at once.
WHY IS THE DEPOSITION BE TAKEN?
The deposition is a discovery tool and is performed for two primary reasons (1) to reveal information and/or documents relative to the issues in the case; (2) to elicit statements that may be used at trial.
As a direct result, as a deponent, consistency in your answers is extremely important. If the case goes to trial and the deponent takes the witness stand to testify, their deposition may be used to cross examine the witness. The opposing counsel's goal will be to point out inconsistencies in those statements to undermine the witnesses credibility.
The opposing side is taking your deposition for at least four reasons:
WHAT KIND OF QUESTIONS CAN BE ASKED?
- Finding Facts and Information. They want to find out the facts in your actual knowledge regarding the issues of the case. In other words, they are interested in what your story is now and what it is going to be at trial.
- Determining how a Party or Witness Acts under Pressure. They want to see how you handle yourself in a tense testimony situation. How a witness handles himself or herself will tell an attorney how hard to press for settlement or trial. Witnesses who cannot handle testifying may not do well in trial and may therefore have less flexibility when settling the case.
- Finding False Statements. They hope to catch the witness in a lie so they can show at the trial that the witness is not a truthful person and therefore, the testimony should not be believed.
- Case Evaluation. The deposition will assist the other side in evaluating the case for settlement purposes. This is often the first and only opportunity the other lawyer has to see each critical witness before the case comes to trial. As a result, wherever possible, a deponent should answer the questions in an honest and straightforward manner so that the other lawyer will be impressed with the fact that the judge will know, if the case is tried, that they are completely honest and sincere.
It is important to remember that discovery is very broad. As a direct result, discovery depositions are very broad. The other lawyer may ask a wide range of questions that he/she could not ask at trial. In a deposition it is only necessary that the questions have the possibility of leading to admissible information or evidence for trial. As a direct result, do not be surprised when the opposing attorney asks questions that you may think are irrelevant or intrusive. Many of the questions will ask about specific issues such as property division, spousal maintenance or custody issues.
WHAT INFORMATION WILL THE OTHER LAWYER SEEK?
In most cases, the deposition will start with general questions about the deponent’s personal facts and background including their name, address, education and profession and then their relationship to the parties or their role in the case itself.
- Information Reviewed. In most cases, the deponent will be asked what whether they have spoken with anyone to prepare for their deposition. Consultations with counsel, however, are privileged and should not be disclosed. The deponent will also be asked what records they reviewed in preparation for their deposition testimony.
- Witness Names. The person conducting the deposition will try to get all possible information regarding names, identity and addresses of any witnesses to assist them in investigating and preparing their case for trial. For any incidents a deponent relates, they can expect to be asked who else was present as well as their name and address.
- Specific Dates and Events. If a deponent relates any incidents or events relevant to the issues of the case case, they may expect the other attorney to explore those events or incidents in detail. As a result, the deponent should be as clear as possible regarding dates and times of events. If they are unsure, the deponent should not commit to a specific date or time since an error in that regard can be fertile ground for impeachment of the witnesses recollection at trial. As a direct result, the attorney will attempt to get the deponent to commit to exact dates, years, times, facts. If a deponent is unsure, they will ask a series of questions designed to increasingly narrow the window of time during which the event could have occurred. Eg. “Was that in the winter or summer? Was it warm or cold outside?” The purpose of these inquiries is induce the deponent to commit under oath to a specific set of facts so that they cannot say anything different at the final hearing. As a direct result, if a deponent is not certain about a date, time or factual matter, they should say so by informing the other attorney that they are estimating.
- Documents. The opposing attorney will ask questions to determine if there are any other relevant documents or items that may be relevant to the case. DO NOT bring and documents to the deposition unless they were specifically requested as part of the Notice of Deposition or Subpoena.
HOW DO I PREPARE FOR A DEPOSITION?
Before the deposition, a deponent should review any documents that they reviewed as part of an expert report or, if the deponent is a party, any documents that they have submitted to the court and/or opposing counsel. Parties in a divorce proceeding should, at a minimum, review the following:
- Pleadings and Affidavits. Review carefully any complaint, petition or affidavit that has been submitted to the Court as part of the case. This includes the original pleadings and/or any affidavits submitted as part of any motion.
- Interrogatory Answers. Review any responses that the party has made as part of discovery. In a divorce proceeding, a party may have answered interrogatory questions by providing notarized responses to the opposing attorney. A party deponent should review those responses carefully and expect the opposing attorney to question them regarding the accuracy of each and every response. In fact, it is not unusual for a deposing party to ask the same questions that appear on those interrogatories.
- Documents Responses. Review any financial documents such as pay stubs, tax returns, or lists of monthly expenses that have been provided to the Court or to the other attorney. The opposing attorney will generally ask about each item that appears on a party’s list of monthly expenses to determine if the claimed expenses are legitimate expenses and how the figures listed in the monthly expenses were determined. Be prepared to support that answer.
IT IS NOT NECESSARY TO MEMORIZE! It is not necessary to memorize any statement or document. When answering questions, especially about financial matters, it is okay and even preferable to refer to the documents that have been submitted to the opposing attorney. “I believe that information is included on my tax returns.” If pressed further, a deponent may state that they do not recall the exact statement or content and ask to see the document in order to respond further.
HOW SHOULD I BEHAVE?
There are a several basic rules that a deponent should follow. That is particularly true if the deponent is a party.
- THINK BEFORE YOU SPEAK! This may seem like an obvious subject, yet, it may be the most important part of your deposition. It is important that you listen to each question carefully - (pause) - and be sure that you understand it before answering. If you do not understand a question, ask the other lawyer to repeat it or rephrase it so you can understand. When you understand the question, answer it honestly and in a straightforward manner. If you don't know the answer, say that you either don't know or don't recall. If you are estimating, state that you are estimating. Pausing will also allow your attorney to make any objections that may apply. Do not be surprised if your attorney does not object to questions that you may think are out of bounds or irrelevant. Remember, the scope of discovery is extremely broad. Rarely will your lawyer ask you questions during the deposition. However, in some cases, your attorney may determine that it is advantageous to ask some questions to explain or clarify a particular point. If your attorney does not ask any questions, don't be disappointed; but if they do, keep your answer short.
- DO NOT ARGUE. You should never argue with the attorney or refuse to answer a question unless you are instructed not to answer by your counsel. Remember, refusing to answer a question simply plays into the opposing attorneys game plan. It lets the opposing counsel know that they have hit a nerve. After the deposition is concluded, the court reporter will type up your testimony. You have the option of reviewing your deposition after it has been typed so that you may make any corrections. If you fail to read and sign the transcript, after noting corrections, within 30 days from the preparation of the transcript, the rules provide that you have waived your right to do so.
Below you will find some additional "Do's" and "Don'ts" regarding party depositions.
DO'S Remember - Less is More. Think of each word that you say as a piece of evidence for the other side to use. When answering a question, shorter answers are preferred even if it seems to be a bad answer. You do not have to explain "bad" answers in your deposition. Your attorney will prepare you for this at trial.
Understand the Question before you answer. You can't possibly give a truthful and accurate answer unless you understand the question. If you don't understand, ask the lawyer to repeat it or rephrase it. The lawyer will probably ask the court reporter to read it back. Keep a sharp lookout for questions with a double meaning and questions which assume you have testified to a fact when you have not done so. Correct such an assumption when you answer.
Take Your Time. Do not hurry. Give the question such thought as it requires to understand it, formulate your answer and then give the answer. Do not give a snap answer without thinking. Allow counsel to complete the question before beginning the answer.
Speak Slowly and Clearly. Do not nod your head in response to a question. You must answer audibly. The court reporter must record your answer and must hear your answer. If you point or indicate, try to describe what you are pointing to or indicating (Do not be too concerned about this; it is up to counsel to describe for the record how you are pointing or indicating.
Beware of Questions Involving Estimates. If you make an estimate make sure that everyone understands that you are estimating. Be sure your estimates are reasonable.
Give Only the Information Which You Have Readily Available. If you do not know certain information, do not give it. Do not turn to your lawyer or another witness, if one should be present, and ask for the information. Do not promise to get information that you do not have at hand unless your attorney advises it.
If Your Counsel Makes An Objection, wait for counsel to advise you either to proceed with your answer or not to answer the question.
Limit Your Testimony to facts within your knowledge and exclude opinions you may have formed, unless specifically asked for such an opinion.
Be Straightforward in Your Answers, attentive and polite to counsel.
You Should Be On Time and modestly and conservatively dressed and groomed.
Treat all Persons in the deposition room with respect. That is true even if you feel they do not deserve your respect.
Arrange to Discuss Your Deposition with Your Attorney in Advance. You should prepare a list of questions you have about the deposition for your attorney to answer when you meet prior to the day of deposition.
Feel Free to Request a Cup of Coffee, Tea, Cold Drink. Do not hesitate to request a break to go to the rest room or make an important phone call, etc.
If Asked Whether You Have Talked to the Lawyer on Your Side, Admit it Freely. That fact that we have conversed before a deposition is good because it lets the attorney know that you have not been neglected. However, don't say what you and your attorney discussed with each other. That is privileged information.
If Your Answer was Wrong, Correct it Immediately, or as soon as you realize you made an error.
Do Not Reach in Your Pocket or Briefcase for a Document. If the opposing side is interested in obtaining documents from you, there are other legal procedures for obtaining them. Do not ask your counsel to produce anything in his or her file.
Do Not Joke in a Deposition. The humor will not be apparent on the cold transcript and may make you look crude or cavalier about the truth.
Do Not Volunteer Facts Not Called For by a Question. Such information cannot help your case and may hinder it.
Do Not Try to Figure Out Before You Answer Whether a Truthful Answer Will Help or Hinder Your Case. You may outsmart yourself. Answer truthfully. Your lawyer can deal with the truth effectively, but is handicapped when you answer any other way.
DO NOT Fence or Argue with the Lawyer on the Other Side. The lawyer has a right to question you, and if you give smart or evasive answers, the lawyer may use your flippant answer in court against you. Don't answer a question with a question unless the question you are asked is not clear.
Do Not Lose Your Temper no matter how hard you are pressed. If you lose your temper, you have played right into the hands of the other side.
Do Not Guess. If you don't know the answer, say so.
Do Not state an estimate as a fact. If Counsel insists that you estimate in your answers, be sure that you make it clear that it is an estimate.
Do Not Attempt to Outwit Counsel; You Cannot. If counsel is asking improper questions or harassing you, your counsel will protect you.
Do Not Volunteer Information. It is a common tactic for lawyers to ask a question and after you finish answering - to wait. The lawyer is hoping that you will respond to the natural instinct to fill the uncomfortable void with words. DO NOT FALL FOR THIS PLOY! Instead, listen very carefully to the question. Answer only the question and then stop. Do not ramble. Do not fill quiet spaces with additional explanations. In depositions - Less is More! If counsel wants an explanation, he or she will ask for it. If we want you to explain further, we'll ask you when it comes time for us to ask questions.
Do Not Become Upset over the length or detail of the questions or the opposing attorney's style. If opposing counsel loses his/her cool, please do not do so too.
Do Not Chew Gum while testifying or taking the oath.
Do Not Exaggerate or Brag.
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