You have just gotten a call from your divorce attorney saying the other side’s attorney has scheduled a deposition for you. It has made you somewhat nervous, especially when your attorney says you must meet prior to the deposition to “prep” you for it. The key here – keep calm and carry on.
Before you think “deposition” really means “inquisition” let’s take a look at what a deposition really is, how you need to prepare for it, and how it can be used in your divorce case.
What is a Deposition?
A deposition is a discovery tool; essentially, it is an information-seeking question and answer session. The deposition is usually conducted in an attorney’s office, with a court reporter present to record the session (sometimes they are held at the court reporter’s office). There is no judge present for these matters.
The court reporter will swear you in, as your answers are given under oath. This has the same weight as testimony in court, and if you give conflicting answers in court to the same questions, the deposition answer can be used to “impeach” your testimony, meaning the court now knows you were not telling the truth on at least one occasion – and that’s not good.
Your attorney will be present the entire time, and will object to questions they think are legally without merit. A good strategy is to take a long, deep breath before answering each question. This deep breath does two things – it allows you to center yourself and give a good response, and it allows your attorney to interject an objection if they think it is necessary. Once they have objected to a question, do not say anything until your attorney either instructs you not to answer the question, or to go ahead and answer the question.
Different attorneys have different approaches to preparation for a deposition. They may ask that you gather some information, for instance about your earnings, or net worth or investments or earning potential. They will also give you an idea about how to deal with the questions.
Some attorneys even go through simulations of what the deposition will be like. This gives you an idea of the setting and the level of formality, and even the types of questions that may be asked. This is a rehearsal of sorts, but they should stay away from trying to script your responses to questions. This is not a bad idea, and may put you more at ease in the actual setting. In these practice sessions you can actively learn how to answer ONLY the question asked, and then stop. It may give you a greater level of confidence than going into the deposition cold.
If the deposition is going to be videotaped, the simulation should also be videotaped. The camera catches things – and preserves them for eternity!- that might go unnoticed otherwise. It is a good opportunity to practice being on camera and realizing that the camera doesn’t miss a thing – an unguarded moment might be your downfall in terms of credibility.
What Will I Be Asked?
There are a number of different areas that the deposition can cover. If there are custody issues, you may be asked about your relationship with the children. There may be questions regarding property, income or income potential. Your attorney will instruct you as to what “homework” you may need to do before the deposition on some of these items.
You may be asked questions of a very personal nature, and here is where you really need to keep your cool. There may be questions about affairs, or post separation relationships or even unusual sexual habits.
At all times, you must be truthful!! That being said, there is no need to go beyond the scope of the question and volunteer information that was not asked. If you do this, you open yourself up to additional questioning and that could lead to other issues.
The best answers are usually “yes,” “no,” or “I don’t know” answers, if at all possible. Sometimes you will be asked details, such as how much time you spend with the children, but keep the answers as brief and to the point as possible. Don’t try to justify any of your actions or positions, remember, this is a fact-finding mission, not a skirmish in a war. Don’t try to “win” or “score” just be straightforward and truthful.
Be aware that sometimes depositions last for several hours; sometimes they are even continued to another day. If there are many contentious issues, it may take a long time to get the information on the record.
At the end of the other side’s questioning, your attorney may ask you a few questions to clarify some of your answers or some of the issues. Don’t take this as proof you hadn’t answered correctly, just that they want a more clear answer on the record. This is your attorney protecting your interests.
The Day of the Deposition
You should dress respectfully, which means fairly conservatively. Don’t be intimidated by the other side’s lawyer, but do be respectful and not argumentative. Disagree if necessary with the other side, but do not lose your temper or yell at the attorney – they may be trying to goad you into such behavior. Maintain your composure and confidence. Here are some tips:
• Look the other attorney in the eye – it suggests confidence and sincerity
• Lean forward at the table – it keeps you from looking like you are defensive and want to flee!
• Be brief in your answers and DON’T offer more information than you were asked
• If you don’t understand the question, say so and ask for clarification
• Take long, deep breath before you answer any question
• If your attorney objects to the question, stop talking
• Stay calm and focused
• ALWAYS TELL THE TRUTH
After The Deposition
Your attorney will receive a transcribed copy of the deposition (usually even if it was also videotaped) which they will review with you. If there are errors, you make note of them and send it back for revision. The final version will be entered as evidence in your case and the judge will review the transcripts or videotape in making his or her determinations.
While this may be a nerve-racking event for you, an experienced family law attorney has been through many, many of these depositions. They will be able to guide you through the process with a minimum of fear and apprehension. Don’t be afraid to ask your attorney to help prepare you for the deposition so you can be on top of your game.