Discovery Depositions in Divorce
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.
MAY BE DEPOSED?
or potential witness may be called upon to appear for a deposition. The person
being deposed is called the “deponent.”
HOW IS A
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 pr physician.
IS PRESENT AT THE DEPOSITION?
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.
IS THE DEPOSITION CONDUCTED?
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
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?
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.
KIND OF QUESTIONS CAN BE ASKED?
The opposing side is taking your deposition for at least
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
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.
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?
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.
General Information. In most cases, the deposition will start with
general questions about the deponent’s personal facts and background
including their name, address, education and 0profession and then their
relationship to the parties or their role in the case itself.
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.
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?
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:
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
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
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.
will find some additional Do's and Don'ts regarding party
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
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.
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).
of Questions Involving Estimates. If you make an estimate make sure
that everyone understands that you are estimating. Be sure your estimates are
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.
Your Counsel Makes An Objection, wait for counsel to advise you either
to proceed with your answer or not to answer the question.
Your Testimony to facts within your knowledge and exclude opinions you
may have formed, unless specifically asked for such an opinion.
Straightforward in Your Answers, attentive and polite to counsel.
Should Be On Time and modestly and conservatively dressed and groomed.
all Persons in the deposition room with 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.
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.
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.
Your Answer was Wrong, Correct it Immediately, or as soon as you realize
you made an error.
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.
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.
Volunteer Facts Not Called For by a Question. Such information cannot help
your case and may hinder it.
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
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.
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.
Guess. If you don't know the answer, say so.
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.
Attempt to Outwit Counsel; You Cannot. If counsel is asking improper
questions or harassing you, your counsel will protect you.
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
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
Chew Gum while testifying or taking the oath.
Exaggerate or Brag
Custody evaluators will
oftentimes make you believe that they agree with your side of the case.
This is done so that you drop your guard.
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