A deposition is a commonly used discovery device in many divorce cases. Many people are nervous or even afraid of being deposed. Follow these nine tips to help relieve some of the anxiety surrounding a deposition.
A deposition calls for a witness (often, but not always, one of the parties) to give oral testimony under oath before trial. Depositions are conducted in front of a court reporter and are then reduced to a transcript. Transcripts are often admitted into evidence at trial, where they may be used to either strengthen or dispute the testimony offered.
As a family law attorney, I use depositions for three purposes:
- Discover relevant information.
- Observe the demeanor, poise, and memory of the deponent (the person being deposed).
- Commit the deponent to a version of the facts.
The deposition process can often seem somewhat informal. For example, most depositions are conducted at an attorney’s office, not in a courtroom. People take breaks for the bathroom, to get water or to have a snack. There may be chitchat during the breaks. However, keep in mind that the version of the facts in the transcript at a deposition will be “used against you” if the you vary from this version. Your credibility as a witness is crucial.
Despite the seeming informality, it’s important to take the deposition seriously. The key to being a good witness is adequate preparation. What follows are some useful tips that I give to my clients to prepare them for their deposition.
- Always tell the truth. … Even if it hurts you. The fatal flaw of many deponents is attempting to change, twist or hide facts that reflect negatively on you. Don’t! You hired a skilled family law attorney for a reason (you DID hire a skilled family law lawyer, didn’t you?).
- Keep calm. Easier said than done, but a well-prepared, honest and well-represented deponent never needs to panic.
- Take your time. Attorneys ask questions for a living. Even a question that seems simple is important to the attorney asking it. Listen carefully to the questions, repeat them in your head and answer them concisely. This will enable you to answer each question accurately, and it will afford your attorney time to object to inappropriate questions.
- Remember the transcript. Every word you say is being recorded and written down. However, there are no “stage directions.” Personality traits like charm and sincerity do not show up on the page, only words do. Choose your words carefully. Simple is best.
- Be polite. … Even if you feel like you are the only person in the room doing so. Remember, only the words are recorded, so avoid sarcasm that may be misconstrued at a later date.
- Don’t answer a question if you don’t understand it. If a question is confusing, ask the questioner to rephrase. Simply say, “I don’t understand the question. Would you please rephrase the question?”
- Feel free to say “I don’t know” or “I don’t remember.” It’s human instinct to want to be helpful and to appear smart. Don’t make the mistake of believing you need to know the answer to every question – you don’t. Avoid guesses or speculation.
- Never volunteer information. Never answer a question that wasn’t asked. Never be more specific than the question requires. Don’t explain your thought process, or help the questioner. Ignore any urge to “fill the silence.”
- Use your attorney. This applies both before and during a disposition. It’s a worthwhile investment of time and money to have a preparation meeting with your attorney before your deposition, including a “mock deposition” to get comfortable with the process and to target potential lines of inquiry. During the deposition itself, you may ask to speak to your attorney for any reason, even if you just need to take a break. If your attorney objects to a question, pay attention — you may learn about how to deal with questions later in the deposition.
In a deposition, as in most things, preparation is a precursor to success. If you know your facts and you know these rules, you’re going to be fine.
Best to you and yours,