Deposition Friday - What can I expect or should we do to prepare?

[tmb8076]

My husband has been involved in a two-year battle to try and get more time with his son.  

His ex (never married) has done everything to prevent this from happening.

There is no reason why he should not get more time with his son.  He has joint legal custody, but his son is with us only EOW and on Wed overnights, and six weeks in the summer.

His ex moved out of the current school district without consulting my husband, and this was the change in circumstance we needed to go to court.

Now, we have depositions with her attorney on Friday at our attorney's office.   Her attorney wants to depose my husband and me.  

I have read all the information on SPARC about depositions.  

Our attorney chose NOT to depose my husband's ex.  There is no abuse or extenuating circumstances other than my husband wanting to have his son more, as his ex works and his son is with his grandmother anyway.   The child is 12-1/2 and wants to be with his dad more.  

Does anyone have any pointers or any advice before we go to the depositions.

My husband doesn't seem nervous, but I am SICK over it!!  

Thanks in advance!

tmb

[CustodyIQ]

Hi,

Just never forget that the reason you're being deposed is to benefit your husband's ex.

Follow these five simple things, and you should be fine...


1.  After each question, wait a couple seconds for your attorney to object and if he doesn't, then that flash of time lets you compose your answer.

2.  Keep each answer as short as possible.  If yes/no would suffice, then use yes/no.  If you need to give an explanation, then do it in as few words as possible.

3.  If a question is unclear, simply state, "I don't fully understand the question."

4.  If you don't know an answer, then say so.

5.  If you don't control your emotions, you won't think as well.  Don't get angry, upset, or fearful.  It's just a question and answer fishing expedition.  Keep your cool, and stay tight lipped about anything except the exact question in front of you.


And... tell the truth.  If y'all haven't done anything wrong, then don't be afraid of the truth.

Good luck!

[tmb8076]

Thank you!

I will make sure my husband reads all of the info on depositions as well as your advice.  He will do fine, it is me that gets nervous over this stuff and I don't know why!  Just thinking of going to trial, etc....makes me kind of sick!

We are also planning on recording it as describd in the deposition info on this site!!  

[Lawmoe]

This is what I tell my clients

As you may know, 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 attorneys 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.
Rarely will we ask you questions during your deposition.  However, we may determine that it may be advantageous to ask some questions.  If we don't ask any questions, don't be disappointed; but if we do, keep your answer short.
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 ADo=s@ and ADon=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 should prepare 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.   Do Not state an estimate as a fact.   If 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.

[tmb8076]

Thank you so much!  Thankfully I got this before we were on our way!  I appreciate this, have printed it out and will read it to DH on the way!!