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May 21, 2024, 02:41:02 AM

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Notes On Depositions

The purpose of a deposition is not to change anyone's mind. It's not necessarily even to find out any specific information (although depositions are often used for this). The real purpose of a deposition is to "freeze" your testimony in writing so that any change or departure at trial can be used to hang you.

Here are a few ideas to help make the process easier, less costly, and more productive.

Obtain a small tape recorder and bring it with you to the deposition. Just before the deposition starts, pull out the recorder, turn it on, and place it in the middle of the table in full view of everyone. Ask if anyone has any objections to your taping the deposition for your records. (Check with your attorney prior to the deposition about this, mention that you'd like to record the proceedings and see if he has any objections.) In fact, you may not even want to ask; depending on circumstances, let them object of their own accord. Make sure you turn on the recorder before you ask them, that way if they do try and claim an objection it'll be on tape...and unscrupulous attorneys hate to be "on the record" objecting to something that really has no merit.

If they do claim an objection, ask them to explain exactly why, and don't take "no" for an answer- you have the right to know. Your argument is simple; the reporter is making a record of the deposition, (in some cases they may also make an audio recording as well) so what's the difference if you make one too? Ask them what objection they could have to your making an recording of the deposition. What are they afraid of? Anyone who objects will have to explain why to your satisfaction. If they do object strenuously, ask them if they'll pay to have a copy of the transcript made for you. (They won't.)

During the deposition of your ex, your attorney will ask questions that he feels are relevant. You will normally NOT be allowed to ask questions directly of your ex, but you may pass written questions to your attorney for him to ask her.

Your attorney will ask you to prepare (in advance) a list of questions to ask your ex under oath. You may come up with a hundred or more questions, of which your attorney will actually use about 20 or 30. The "unused" questions may be good ones but are probably not of tremendous importance at this point. Your attorney may ignore certain questions because he doesn't want to alert opposing counsel to specific information he has at this time.

If your ex lies during the deposition, pass or show your attorney a pre-written note that simply says "LIE" to let him know that her response was a lie. (Prearrange this with your attorney so he knows what to expect; you could have several different notes made up, such as "LIE", "QUESTION HER MORE ON THIS", "VERIFY THE DATE", etc.) If you have access to a laptop PC, take it with you and bring up your favorite word processing program. Make the font size really big, then type the notes to your attorney and turn the screen so he can see it.

When you are under deposition your ex's attorney may attempt to get you to incriminate yourself or make contradictory statements. He may phrase things in such a way that you appear to admit to something you never did. For example, he may ask you:

"Do you recall, on or about the 20th of June, slapping your wife?"

He is phrasing the question so as to pre-suppose that the event of "slapping your wife" did in fact occur, and is only asking you if you remember doing it or not. This is improper, to say the least. If your attorney does not object to the form of the question, you should. The correct form of the question should be something like:

"Did you, on or about the 20th of June, slap your wife?"

Your ex's attorney may also ask a series of "leading" questions, attempting to get you to give an answer that he desires. Listen carefully to each question he asks. After each question is asked, pause for a moment in order to give your attorney time to object if he wants to do so. Keep your answers short and don't tell your ex's attorney anything he didn't ask about.

If your ex's attorney cuts you off and doesn't let you finish, simply ask if you may be allowed to finish answering the question. It's difficult for him to say "no" to this request. If you like, you may answer at length (or even at great length- see below) and/or provide documentation as part of your answer. If opposing counsel still refuses to allow you give a complete answer, state so on the record: "I wish to state on the record that attorney Smith is refusing to allow me to give a complete answer to a question he has asked me."

If you feel that your ex and her attorney have a limited amount of time, or are trying to move things along too quickly, you may control the situation to some degree by answering slowly and at length, giving them less overall time in which to ask questions. Before answering, take a moment to consult some document (like your log notes), rummaging through all your paperwork (and you'll have plenty of that), and then give your answer slowly and in great detail. If your ex's attorney tries to hurry you along, insist that you be allowed to answer the question fully. After all, he asked you a question and you're just trying to cooperate to the best of your ability, even if it's going to take longer (perhaps much longer) than he would like.

Another thing to keep in mind is that if you are ever requested to give a list of items (names, dates, places, etc.), always finish your recitation of the list with the words "That's all I can think of right now" or words to that effect. This allows you to add to the list later if you remember someone or something that you had forgotten about.

Keep in mind that the judge will almost never see a transcript of the deposition. They don't have the time to read through a hundred of pages of mostly unimportant questions and answers. The only times a judge ever sees what is in the transcript are:


  • If some specific item or event referenced in the deposition is central to the case
  • If a person's testimony contradicts what they previously stated in deposition
  • If something referenced in the transcript becomes a point of contention
  • The case assumes epic proportions in terms of time or complexity


Even in the above instances it's unlikely that the judge will read the entire transcript; typically he or she will read only the portions relevant to the dispute or matter under discussion.

So, once you're all done, who pays for a transcript of the deposition? You will if you request a copy, and the printed transcript is expensive, typically between $500 and $1000, possibly more... but here's an idea: When the deposition is done, they will ask you if you will "waive signature privilege"... say NO. What this means is that you do not wish to surrender your right to review the final transcript, once the reporter's office publishes it. Then they will call you to have you read it over, and they will typically offer you options as to where you would like to read it... don't go to their office. If they press you, tell them that you have a scheduling conflict or some other excuse. Choose the local courthouse or your office instead. It's gonna take a long time to read it, and they will eventually leave you alone. Leave the area and find a copy machine.

NOTE: Technically speaking, doing this could be seen as being unethical or possibly even illegal.

Our thanks to "Dog" for some of these tips and ideas. Woof!

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