Deposition

[Lawmoe]

A deposition is a form of discovery that is performed for two reasons (1) to reveal information and/or documents relative to the issues of your case; (2) to elicit statements that may be used at trial.

As a direct result, consistency in your answers is extremely important. The questions that opposing counsel may ask address specific issues such as property division, spousal maintenance or custody issues. This letter is intended to prepare you for that deposition

   PREPARATION FOR DEPOSITION

A.        PROCEDURE

The opposing lawyer has a right to take your "discovery deposition."  This means that you will be put under oath, just as you would be in court, and the lawyer will ask you questions relating to this case.  The questions and your answers will be taken down by a court reporter.  Your lawyer will be present.  No judge or jury will be present.

After the deposition is over, the court reporter will type the questions and answers. The original may eventually be filed in the court file.
If your case goes to trial and you take the witness stand to testify, your deposition may be used  by the other lawyer to cross examine. The opposing counsel's goal will be to point out inconsistencies in your statements to undermine your credibility. Furthermore, any part of the deposition of a party can be read by the opposing attorney at the trial.  

SO -- THINK BEFORE YOU SPEAK!

It is 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.  

UNDER NO CIRCUMSTANCES should you argue with the attorney or refuse to answer a question unless you are instructed not to answer. Remember, refusing to answer a question simply plays into the opposing attorney's game plan. It lets the opposing counsel know that they have hit a nerve.  Pause after each question is asked. This will allow your attorney the opportunity to object if an objection is appropriate.  Do not be surprised if we do not object to questions that seem to you to be out of line.  Remember, the scope of discovery is extremely broad.

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. At the end of the deposition, I will advise you to exercise that right.  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.  

B.        REASONS FOR TAKING YOUR DEPOSITION

The opposing side is taking your deposition for at least four reasons:

1. 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.

2.Determining how a Party Acts under Pressure. They want to see how you handle yourself in a tense testimony situation.  How a client handles himself or herself will tell an attorney how hard to press for settlement or trial.  Clients who cannot handle testifying may not do well in trial and may therefore have less flexibility when settling the case.

3.Finding False Statements. They hope to catch you in a lie, so they can show at the trial that you are not a truthful person and therefore, your testimony should not be believed.

4.Case Evaluation. Your 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 you before the case comes to trial.  You 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 you are completely honest and sincere.

C.    WHAT INFORMATION WILL THE OTHER LAWYER SEEK.

1. Witness Names. They will try to get all possible information regarding names and witnesses to assist in investigating and preparing for trial. For any incidents you relate, expect to be asked who else was present as well as their name and address.

2. Specific Dates and Events.  If you relate any incidents or events relevant to the issues in your case, you may expect the other attorney to explore those events or incidents in detail. The attorney will attempt to get you to commit to exact dates, years, times, facts.  The purpose of these inquiries is to commit you under oath about your side of the case so that you cannot say anything different at the final hearing.  PLEASE REMEMBER: if you are not certain about a date, time or factual matter, say so. Tell the other attorney that you are estimating.

3. Documents.  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 with you unless otherwise instructed.

D.     HOW TO PREPARE FOR YOUR DEPOSITION

Before the deposition, review any documents that have been submitted to the court and opposing counsel.

Pleadings and Affidavits. You should review carefully any complaint, petition or affidavit that you have submitted to the Court as part of your case.  This includes the original pleadings and/or any affidavits submitted as part of any motion.  

Interrogatory Answers. You should also review any responses you have made as part of discovery. In this proceeding, you may have answered questions called interrogatories by providing notarized responses to the opposing attorney. You should review those responses carefully and expect the opposing attorney to question you regarding the accuracy of each and every response.

Documents Responses. You should also review any financial documents such as paystubs, tax returns, or lists of monthly expenses that have been provided to the Court or to the other attorney. You can be certain that the opposing attorney will ask you about each item that appears on your list of monthly expenses to determine if they are legitimate expenses. Be prepared to support your answer.

IT IS NOT NECESSARY TO MEMORIZE!  You should not 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.  
E.g. If asked about finances you can indicate that you have provided that information and note the most recent document that you provided. If pressed further, you may state that you do not recall the exact statement or content and ask to see the document in order to respond further.

E.      HOW TO BEHAVE

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.

Below you will find some "Do's" and "Don'ts" regarding your deposition. Please review them carefully.

DO's   

1.   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 trial.

2.   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.

3   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.

4.   Speak 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).

5.   Beware of Questions Involving Estimates.  If you make an estimate make sure that everyone understands that you are estimating.  Be sure your estimates are reasonable.

6.   Give 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.

7.   If Your Counsel Makes An Objection, wait for counsel to advise you either to proceed with your answer or not to answer the question.

8.   Limit Your Testimony to facts within your knowledge and exclude opinions you may have formed, unless specifically asked for such an opinion.

9.         Be Straightforward in Your Answers, attentive and polite to counsel.

10.   You Should Be On Time and modestly and conservatively dressed and groomed.

11.       Treat all Persons in the deposition room with respect.   

12.   Arrange to Discuss Your Deposition with Your Attorney in Advance.  You shouldprepare a list of questions you have about the deposition for your attorney to answer when you meet prior to the day of deposition.

13.   Feel 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.

14.   If 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.

15.   If Your Answer was Wrong, Correct it Immediately, or as soon as you realize you made an error.

DON'TS

1.   Do Not 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.

2.   Do Not  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.

3.   Do Not Volunteer Facts Not Called For by a Question.  Such information cannot help your case and may hinder it.

4.   Do Not Try to Figure Out Before You Answer Whether a Truthful Answer Will Help or Hinder Your Case.  Answer truthfully.  Your lawyer can deal with the truth effectively, but is handicapped when you answer any other way.

5.   Do Not  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.

6.   Do Not 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.

7.         Do Not Guess.  If you don't know the answer, say so.

8.   Limit Your Testimony to facts within your knowledge and exclude opinions you may have formed, unless specifically asked for such an opinion Counsel insists that you estimate in your answers, be sure that you make it clear that it is an estimate.

9.   Do Not Attempt to Outwit Counsel; You Cannot.  If counsel is asking improper questions or harassing you, your counsel will protect you.

10.   Do Not 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 questions.

11.   Do Not 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 too.

12.       Do Not Chew Gum while testifying or taking the oath.

13.  Do Not Exaggerate or Brag.Your deposition is an important part of your case.

[FLMom]

I benefited so much from this site in getting ready this past year for deposition and hearing. I urge you to look through the archives of this site. You may not think at the time that things apply to you, but later on you'll be glad you were informed.

In my deposition it was held in a room adjacent to the courtroom. As I was the plaintiff I was deposed first. My lawyer and I sat together and my ex's lawyer sat across the table while ex sat across the room.

Lawmoe was right about the questions being broad---they were all over the place. Some questions so personal they made me blush. After a while you might see a pattern of some kind to the questions, trying to dance around a supposed incident or time frame in your life. In my case my ex used his lawyer to use the deposition as a way to find out about my husband and my personal lives. WAY personal.

Ever played poker? You know when you have 3 queens with an ace high and you keep that face on that lets you pull the pot in? Show NO emotion. A smile cannot be transcribed but sarcasm can.

There are a few phrases that are useful. "I don't recall at this time" is a BIG one. You can recall things later, but that way your answer at the time cannot be used against you. A polite, "I'm sorry but I didn't understand your question" is OK too. You may have heard the question and understood it, but the lawyer having to ask it a second time will give you a moment to be sure you phrase the answer correctly.

Don't pounce to answer, and by all means do not get into a verbal sparring match with the lawyer. I guarantee he/she has done this hundreds of times before. You haven't. Pauses to answer are not recorded by the transciber. Use this to your advantage.

Answer truthfully, but do not delve into your life story. Keep your answers short, sweet and to the point. Some people ramble out of nervousness and might say something that could be interpreted in a different way later. And this is all about later. What you say is setting in stone what may come up later.

In my deposition I was allowed to bring in my notes. This allowed the ability to look back and see something that happened on a particular date. Silly as it may sound, having a pen in my hand to fiddle with steeled my nerves.

The best overall advice I can give is to expect the unexpected. Not one thing you have in your mind right now of the lawyer's questions will be one that he/she will ask.

Good luck and please keep us updated.

[Skooter95]

Thank you all so much for the replies and advice!!! It is very much appreciated.  Now at least I know what to expect.

This is such a wonderful site and I am learning so much. Hopefully it will help when the dreadful day comes (court).

[FLMom]

Skooter,

I re-read your question and saw you had asked about the hearing and trial also. Had some added thoughts.

Don't expect much from the hearing. The judge just wants to get an overall view of the facts and see how far apart in your ideas you and your ex are. If you're close he/she may order you to mediation, even if you've been through it before. Judges like to see people that are trying to raise their children with thoughtfulness, and if one person is being completely off the mark at that time the judge will usually tell them so.

In my case as a NC Mom my ex and I had a very liberal arrangement for years, He just suddenly decided that he was going to use his control as CP and only let me see our kids every other weekend and one afternoon a week. The judge saw, at the hearing, that this wasn't what our kids had been used to and added another afternoon a week pending the trial. So yes, things do get changed at the hearing.

By the time of the trial your lawyer will have a copy of the transcript from the deposition. Keep in mind, no matter how many dumb things your ex has possibly done it will have no bearing unless it goes directly to the welfare of your children. That eliminates the judge having to listen to a bunch of "he said she said" in court. What you are trying to prove to modify a custody agreement is a "change in circumstances". Hopefully at the deposition your lawyer asked those relevant questions. Now is the time for the two of you to sit down together, decided what is relevant and what isn't, and focus on those points.

Use this waiting period to gather up as much as you can that is admissable in court. If you sit waiting for the date ringing your hands you will go insane. Keep busy. You can go to your state law enforcement office and get background checks on questionable witnesses. You can research the statutes and case law for your state on modifications of custody and use this as presidence in your case. Start a folder. Make copies of the datebook you've hopefully been keeping. Make copies of the receipts of what you've done for the kids. Get copies of all volunteer work and extracurricular activities you've been involved with that prove you to be a fit and interested parent. Include copies of CS monies that you've paid your ex. Make copies of all of the correspondence between you and your ex so that you can show that YOU are trying to work with the other parent but they are fighting your attempts. Make a separate file for every topic and put it all together for your attorney. The lawyer is not going to go out and do legwork--this is your job.

In our case we did make it to trial. BUT---the judge didn't decide our case. Like I said, judges like to see people try to work things out. His words were "I guarantee you two that you will like the decisions YOU come up with better than the ones I will make". So we spent two hours hammering it out. It works because neither party wants to be seen as unreasonable especially when the judge is sitting right there. Your file folder will come in handy at this point. It came in very handy for me when my ex wanted to hit me with back CS I supposedly never gave him. Started pulling out the files. He didn't get a penny of back CS.

Unless you can prove the CP a current heroin addict or that he beats the children daily do not expect the original decree to be changed. Visitation, however, can be changed to 50/50 very easily. The other party will balk because it will mean they don't get as much CS, so you'll have a choice of whether you want to pay and see your kids more or keep your money and not see them. I chose to pay. It ended out about 52/48, but it was much better than it was before we walked in there and better for our children to have both of their parents in their lives.

I know what this time is like for you, and I am so sorry that you're having to go through it. Just hug your kids every chance you get. They know something stressful is going on in both households and they usually think they are the cause of it which is tremendously damaging to them. Assure them that you and your ex and working to try to make things better and that you both love them, even if you have to go outside and scream later.

Good Luck.

[Skooter95]

THank you so much Flmom.  I am in somewhat the same situation as you were in.  I do have about 40% and he has 60% and am just trying to get at least 50/50.  He has also used his control over me concerning transportation and visitation at times.  We have never been to court but did attend mediation last time and I told him that I would pay him child support if I could just have more time with my daughter so we signed the agreement.  He has continued to use his "control" over me by using my daughter and even put her in the middle of a disagreement he had with me by listening in to our phone conversation between my daughter and I and then telling my daughter that I wasn't telling the truth.  That upset me more than anything for him to do that and I immediately tried to get my daughter off the phone to keep her out of it.  Its just these little things that add up and now I am a stay at home mom and have  another daughter with my current husband.  I am still paying child support and have been since I had my baby for a year and a half now.  I haven't sued for a modification in CS just custody which he will NOT work with me on.  I just hope that hopefully he can see that our daughter is the one that will be hurt by this if he can't compromise and work with me.  I have been keeping notes and really appreciate all of your advice.  It will certainly come in handy.

Are you saying that you and your ex finally came to an agreement among yourselves instead of the judge?  I wasn't clear on that.  I do know that my ex hired an expensive atty to represent him and since i'm the plaintiff, his atty knows the judges and what they look for.  All I can do is tell the truth and hope the judge will be able to see through him and his control.  

[FLMom]

Skooter,

If your ex is a control freak he will never see what he is doing is damaging your daughter. He will think that everything he is doing is for the betterment of your daughter, no matter what the real facts are. Control freaks and people with manipulative personalities are martyrs for their own cause. Right now you are the reason for everything that is going wrong in his life and unfortunately it sounds like your daughter is paying the price for his mindset.

When you go to the hearing be very clear between you and your attorney of what you hope to have happen. If you are willing to work with him it will look a lot better than what he is presenting. Children deserve both parents, right? What you're asking is not unreasonable. So you bring out your notes and say "on **/** date I attempted to pick up daughter and Mr. XXX did not allow me to do so". Or "Mr. XXX and I had agreed in mediation that he would drop off on **/** dates and did not bring OUR daughter" (never refer to her as MY daughter, always say OUR). You want to show that you have made the effort and the ex is trying to not allow you to be a parent. Judges HATE that. Always refer to your ex as "Mr. XXX", not by his first name or other choice words. It shows that you have respect for him, and if your ex isn't returning it then the judge will see it. It has to be a business style relationship.

I don't know how old your daughter is, but mine is a teenager. She quickly realized the differences in the way my ex and I handled the court case. Do not discuss pertinent details with her. The ex is doing it enough as it is. As tempting as it is to try and "defend" yourself from what he is saying right now, and he is probably saying all KINDS of rotten things about you, do not act the same. My ex is very manipulative. Kids aren't dumb. My daughter sees through all of this. Yours will too. Just continue to be the best mom you can be and always take the higher road. I have a feeling my ex is going to be a very lonely person as he grows older. It's not that I will encourage our kids to feel this way, it's just naturally going to happen.

Yes, we did come to an agreement in the courtroom that the judge did not decide. He had been unreasonable, and I showed that I was more than willing to work with him. CS wasn't the original issue with us either, but that got decided that day also. Want to see your daughter but he is balking at driving? Make an offer of lowered CS in exchange for you doing all of the driving. Show consistantly that you are willing to do what's best for your daughter.

Your ex can hire the most expensive attorney in the town you live in. Guess what? It doesn't mean he/she is the best. A busy attorney means that your ex will receive only minimal time with his case. Back to the control freak personality, your ex has only told him/her his skewed version of things. That came back to bite my ex's tush in court. He had told his lawyer that up until then I had payed little attention to our kids and was completely flighty. My notes and proof of involvement showed otherwise. It put his attorney in a corner, where he knew he had to settle because he wouldn't in his wildest dreams want the judge to hear the reality of it.

A few days before your trial ask your attorney if he/she will do a mock hearing with you. It will set your mind at ease because you know what will be coming and the proper way to answer. One thing he/she will tell you is to always show respect to the other party. No matter what ridiculous stuff your ex will come up with let him say it in court. When I went to speak my ex jumped up and said "that's a lie!". You're behind the 8 ball in that you have brought this in front of the judge and you are seen as the aggressor, but the judge--if he/she is a good one--will see the truth. And just remember, that is what you have going on your side. Truth and what is best for your daughter.

[Skooter95]

Thanks so much FLmom! I would love to talk to you more privately sometime if you don't mind.  You have given excellent advice for me and I truly appreciate it.  I will keep you updated on how everything goes.  Our deposition is scheduled for the first of Nov. and the hearing is only 4 days after that.  
Thank you again!!