How do I prepare for my deposition in a divorce case? This is a very common question. During your divorce case, the opposing attorney may schedule your deposition as part of the discovery phase of the case. A deposition is your sworn out of court testimony. During the deposition, you are asked questions under oath by the opposing attorney with a court reporter transcribing everything that is being said. Your deposition is very important, and you should treat it that way.
Most spouses going through a divorce have never had their deposition taken before. Chances are you are anxious about what will happen. It is important for you to prepare for the deposition so you can appear calm, cool, and collected.
Below are 15 practical tips to prepare you for testifying at your divorce deposition:
1. Speak Slowly and Clearly
Make sure you answer each question orally and not with a gesture like a nod of the head or a shaking of your hand. Also, you should speak slowly and clearly to help the court reporter accurately transcribe your answers to the opposing attorney’s questions.
2. Think Before You Speak
This sounds obvious but you should think before you speak. Did you understand the question that was asked? Do you know the answer to that question? Make sure you do before you speak and say something you regret.
3. Pause After Each Question
Take a breath and pause very briefly after each question. That short pause will allow your attorney to object to the question if necessary. It will also allow you time to provide a short and truthful answer to the question that was asked.
4. Don’t Guess
If you don’t know the answer to a question, then say “I don’t know” instead of making up an answer that is nothing more than a guess.
5. Listen to Objections and Instructions
Your attorney’s role at the deposition is to protect you by objecting to improper or poorly worded questions. If your attorney makes an objection, stop talking. You will need to answer the question after the objection is made unless your attorney instructs you otherwise. Common objections that can be made by your attorney are: (a) the form of the question; (b) the question has already been asked and answered; (c) the deposing attorney is mischaracterizing your previous testimony; or (d) work product (or privileged). If you hear your lawyer make an objection, you should: (a) think carefully before answering; (b) wait to hear if you are instructed not to answer the question; or (c) ask if you can take a break.
6. Make Eye Contact
Look at the deposing attorney when answering a question.
7. Tell the Truth
You must tell the truth during the deposition. This is very important because you must swear or affirm to tell the truth at the beginning of the deposition, as if you were testifying in court before a judge. If you lie under oath, then you are committing the crime of perjury. Your lies are often caught by other conflicting testimony or documents. Those same lies can lead to lengthy and expensive motion practice that distracts from the merits of the case. Almost every divorce case has bad facts. Instead of telling a lie, discuss with your attorney how to deal with difficult questions truthfully during your deposition.
8. Don’t Get Angry at the Deposing Attorney
If you get angry, you will show the deposing attorney that you are a bad witness and unable to control yourself. You will also likely say answers and reveal information that you would not have if you were calm. You should remain composed throughout your deposition. Do not be combative or evasive. Ignore arguments or heated exchanges between the attorneys. Do not be sarcastic or make a joke as they will not translate well in the deposition transcript. Last, if the deposition is being recorded, you must be always aware of your demeanor.
9. Short Answers Are Best
Can the question be answered with a “yes” or “no” answer? If possible, then do so. If not, then give a short answer to the question. Do not volunteer information that has not been asked of you. There is no obligation to fill in silence with talk. “I don’t know” and “I can’t remember” are appropriate answers if they are true. Answer based only on your personal knowledge.
10. Your Deposition is Not a Conversation
Remember, this is a formal legal proceeding. You are being asked specific questions. Do not start telling your story. That is for a direct examination at trial. The deposing attorney wants to learn everything he or she can about you. However, it’s not your role to tell the attorney everything. Instead of engaging in the conversation with the deposing attorney, simply answer what is asked of you and avoid the small talk.
11. Do Not Answer Unclear Questions
It’s simple, you should not answer a question that you do not understand, or think is unclear. Instead, politely ask the questioning attorney to rephrase an unclear question before providing an answer.
12. Ask for a Break if Needed
You must stay focused during the entirety of your deposition. You should be able to take a break at any time, except when a question has been asked and is awaiting your answer. Normally, most lawyers take a short break about every 90 to 120 minutes.
13. Read Exhibits Carefully
Read an exhibit in its entirety before answering any questions about that exhibit. If you didn’t write or create the exhibit, then be careful when answering questions about such an exhibit. For email or Our Family Wizard exhibits, pay close attention to dates, authors, and recipients of each email in an email chain or message in an OFW chain.
14. Concluding Instructions
Do not speak to anyone other than your attorney about your upcoming deposition testimony. Do not bring any documents with you to the deposition. At your deposition: (a) turn off all electronic devices before the deposition begins; and (b) keep off-the-record conversations with the court reporter, attorneys, and other attendees limited to sports, the weather, or other small talk that is unrelated to your case.
15. It’s a Deposition and Not a Trial
You are not going to win your case with your deposition testimony. However, you can lose your case at trial by providing information during your deposition that you should not have provided.
Should you need the advice of an experienced divorce attorney or have questions or concerns about your situation, know that we are here to help and ready to discuss those issues with you.