Depositions are another critical discovery tool in the litigation process. A deposition is each party’s opportunity to take witness testimony under oath before the final hearing. You are almost sure to be deposed by your spouse’s attorney and your spouse will be deposed by your attorney, along with other important witnesses in your spouse’s case. Depositions usually take place at your attorney’s office, your spouse’s attorney’s office, or a court reporter’s office. You will be asked questions by the opposing attorney and, usually the proceedings and all questions and answers will be recorded by an official court reporter. The judge will not be present. There is little difference between the testimony at a deposition and the testimony in the courtroom, with the exception of the judge presiding and ruling over the matters as they arise. The judge may do so later.
Depositions are taken for several reasons:
- To find out what you or a witness knows about different disputed issues in your divorce case, and to find out what supporting documents you or the witness have for your testimony on these issues.
- To learn in advance what the witness’ testimony will be at the final hearing. This helps the deposing attorney determine whether additional witnesses or discovery is needed on certain contested issues. It also helps counsel for both parties plan their examination of the witness at the final hearing before the divorce Judge.
- To have a record of the witness’ sworn testimony in case the witness testifies differently in front of the Judge. If the witness’ testimony is different in any material way from their deposition testimony on the same issue, the opposing attorney can show the Judge that the witness is not a truthful person and should not be believed on any point.
The right to take depositions is an important discovery right for both parties. Each party has the right to depose the other party and all witnesses the other party will call in his or her case.
Setting the Deposition
The specific date and time of a deposition will be arranged by the attorneys so that you and your attorney can attend. This firm will coordinate the scheduling of all depositions in your divorce case and send you a copy of the notice of deposition that sets forth the date, location, and time of each deposition held in your case. The deposition may last less than an hour or go on for several hours or even longer.
Depositions of both parties and each of their witnesses will likely be scheduled if your case is going to trial. The party who sets the deposition is responsible for the court reporter’s fees for attending and recording the deposition. The party who orders a partial or full written transcript of a deposition is responsible for paying the court reporter’s transcription charges.
Subpoena Duces Tecum
Parties often include a subpoena duces tecum in their notice of deposition, which directs the deposed witness to bring certain documents to the deposition for the deposing party’s review and copying. The documents to be brought to the deposition are specifically listed in the subpoena. The witness being deposed may file an objection to the subpoena within ten days of being served with the subpoena. The divorce Judge will then decide whether the documents listed in the subpoena must be provided at the deposition.
Our firm requests that you schedule an office appointment to view an informative videotape about depositions within ten days of your scheduled deposition. After your viewing, an office staff member will be available to answer your questions and concerns about your pending deposition. If you are not personally being deposed, you may attend the deposition and sit with your attorney during the deposition. Your attorney will advise you whether your attendance is needed at each deposition scheduled in your case.
If you have carefully reviewed the above information and guidelines, viewed the educational videotape about depositions provided by our office, thoroughly reviewed the following deposition “do’s and don’ts”, and discussed your questions and concerns with a staff member of the office, you are fully prepared to attend your own deposition. Some butterflies in the stomach are to be expected at the beginning of your deposition, but your attorney will be at your side throughout the deposition acting as your advocate. Tell the truth about your case and leave the rest to your attorney. Then you can relax and enjoy opposing counsel’s possible frustration at not being able to poke holes in your case.
Deposition Do’s and Don’ts
- Answer all questions asked with the facts that you know. You do not have to give your opinion and you should not do so if asked unless your attorney directs otherwise.
Likewise, you should not guess at an answer if you are not sure of your knowledge of the facts. It is fine to answer a question by saying “I do not know” if this is the truth.
- Be truthful in your answers. A witness’ attempt to lie or otherwise conceal the truth about a contested issue in the divorce will almost always backfire at the final divorce hearing. Remember that I cannot do my job of explaining or mitigating the truth if you do not tell the truth in your case.
3. Answer only the question asked. It is often very difficult to give a simple answer in deposition without attempting to set the answer in context or otherwise explain in more detail. THIS IS USUALLY A BIG MISTAKE. Your attorney will ask you for more explanation if more explanation is needed. Keep your answers simple and to the point. Answer the question asked, if possible, and nothing more.
4. Do not offer to get information you don’t have at the time. This is not required and could be harmful to your case. Your attorney will volunteer to get additional information for opposing counsel, if and when she thinks it will be helpful to your case. Let her make this call. Similarly, do not tell the deposing attorney that the requested information can be located in your file or in your possession or in the other party’s possession. You are only obligated to give the facts that you know about each question posed in the deposition – not help to prove their case for them.
5. Stop speaking as soon as your attorney begins to speak. Your attorney may interrupt your answer with an objection to the question posed. If so, you should not answer the question until your attorney directs you to answer. Even if you finish your answer to a question objected to by your attorney, her objection may prevent the opposing party from using your answer in the final hearing before the Judge.
6. Do not be emotionally manipulated by the opposing attorney. Try to keep your emotions in check during your deposition. This can be very difficult when sensitive issues are being discussed. Some opposing attorneys will attempt to manipulate your emotions to their client’s advantage. Only you can keep this ploy from working. If you feel your emotional control is slipping, ask for a brief break in the deposition. If you start feeling defensive about your answers, realize that the deposing attorney is probably working hard to elicit defensive responses to make you look bad. Mentally review your role in the deposition process, i.e. to give the facts as you know them — not to explain, excuse, or defend. Leave that to your attorney. The deposing attorney will get the upper hand in your deposition only if you allow it to happen.
- Do not use humor, sarcasm, facial expressions or intonation to make your point in the deposition. None of these forms of communication will come across in the written transcript of the deposition that may be provided to your divorce Judge. Again, clear, simple direct answers to deposition questions are necessary to create an easily understood written transcript. It doesn’t matter what the deposing attorney thinks about your answers, as long as your answers are truthful and focused solely on answering the question asked.
8. Never fool yourself into thinking opposing counsel is a friend-they are always your opponent in this case. He or she is a professional hired by your spouse or ex-spouse to win as many advantages as possible in the case. Your relationship with opposing counsel should be polite, but you should never drop your guard due to the friendliness of opposing counsel.
9. Never let opposing counsel get your goat. A well known deposition tactic is for the opposing counsel to adopt a hostile, antagonistic or sarcastic attitude in order to rattle you and goad you into an angry response. When you are angry, you are not thinking clearly and may say something that you do not mean, something that will be misconstrued, or something that will be used against you later in the divorce process.
10. Leave promptly after the conclusion of the deposition. After the deposition is completed, you should promptly leave with your attorney. Do not engage in small talk with your spouse/ex-spouse or opposing counsel unless your attorney advises otherwise.
Review these “do’s and don’ts” very carefully several times before your deposition. Expect to be somewhat nervous. Having the above tips firmly in mind can give you confidence in your deposition responses.
Truth And Accuracy
We can not emphasize our policy regarding truth and accuracy in all disclosures too many times. Tell the truth, tell the truth, tell the truth. Just as importantly, however, do not feel compelled in your deposition to tell more than you are asked by your opponent’s attorney. The deposition is not a test of your knowledge, but rather an opportunity for your opponent to learn as much as possible about your side of the case. Keep your answers concise and focused on providing exactly the information requested and nothing more.