The purpose of the deposition is for your spouse and opposing counsel to have a preview of your testimony at trial. The attorney taking your deposition wants to find out what you know about the facts and issues in your case, and, if possible, get you to commit to a particular set of facts and story of your case. The opposing counsel may also be looking for inconsistencies in your testimony to try to impeach you (catch you in a lie) at trial.
Prior to your deposition, you should review all of your prior declarations and other pleadings in your case. You should also review your financial disclosure statements and any responses to discover you have provided previously. You should not bring any documents with you to your deposition, unless your lawyer tells you to do so.
Tell the truth, but do not guess or speculate. Answer only the question asked. You should not volunteer any additional information that is not directly responsive to the question. Be sincere and direct. If the deposition is being videotaped, your sincere demeanor is particularly important. If you don’t understand the question, ask that it be repeated. Take your time to be certain you understand the question. Do not be embarrassed to ask for clarification. You want to answer the question asked.
Do not argue with opposing counsel. He or she may be purposefully trying to push your buttons. Don’t let him or her succeed. Stay courteous and patient. If you need a break for any reason, ask for one. In particular, if you have a question for your own attorney, you should ask for a short break. A question should not be pending when you take a break, so you should ask for a break between questions.
If you remember something later that completes an earlier answer, you should state that you have recalled something that will make your earlier testimony more complete, and then provide the information. Similarly, if you realize a prior answer was wrong, correct it immediately. Everyone makes mistakes, but the sooner you correct a mistake in the deposition, the better. Do not be afraid to say that you do not remember something. No one remembers everything. If a document might help you remember, then you may ask opposing counsel to provide you with the document.
If you are shown a document, take the time to review the document before you answer any questions about it. Do not permit yourself to be rushed into answering questions about a document that you have not completely reviewed. In particular, do not let the deposing attorney “put words in your mouth” about what the document says.
Your lawyer may object to certain questions or certain types of questions. Permit your lawyer to make his or her full objections, and then wait to determine if you are to answer the question. Some questions will need to be rephrased before you respond. Allow your attorney to do his or her job for you.
Do not try to win over the opposing counsel by being overly friendly with him or her or your estranged spouse during the deposition. This is a formal, recorded procedure, and your goal is not to make friends or win the other side over during your deposition. Your job is to provide honest, straightforward answers to exactly the questions asked.
Once your deposition is completed, you will have the opportunity to review your answers on a typed copy of the deposition transcript (all of the questions and all of your answers). If you discover an error in one of your responses, or in the way your response was transcribed, you will be able to correct it. Be certain you review your testimony carefully and within the time frame that your lawyer sets out for you to do so. This final, corrected copy is the one that will be used at trial.
Finally, many cases settle shortly after depositions are completed. This is generally because positions are then firmly understood, testimony is known, and the strength of a party’s live testimony has been evaluated. Consider the taking of your deposition as part of fully preparing your case, not only for trial, but for settlement as well.
Pauline Rosen is a divorce attorney and the founder of the Law and Mediation Offices of Pauline Rosen, located in the South Bay (Los Angeles), providing compelling, competent advocacy with compassionate client-centered legal services, including family law, collaborative law, and mediation. She is the recipient of the American Jurisprudence Award in Ethics, Counseling, and Negotiation and in Criminal Procedure and is listed in Who’s Who (1999).