What Is a Deposition?
One way a Party can obtain information in a family law case is through a Deposition. A Deposition is a formal proceeding where a Party or Non-Party is questioned under oath by Opposing Counsel. The purpose of a deposition is to gather information and evidence that may be used at trial. Depositions allow a Party to obtain information that may not be available through other means.
In previous blogs we discussed Discovery. Discovery is the fact finding and evidence gathering process of a case. Some methods of discovery can only be used on a Party and other methods on a Non-Party. A deposition can be used on both a Party and Non-Party. Examples of Non-Parties in a family law case include friends, family, teachers, or employers. Since we cannot request that Non-Parties answer Interrogatories or Request for Production, we may compel them to attend and give testimony at a deposition.
What Can I Expect From a Deposition?
Depositions can be stressful and intimidating. Knowing what to expect can minimize the pressure and anxiety surrounding the deposition.
Your deposition will likely be conducted at a law firm in the conference room. Depositions do not happen in the courtroom. At the deposition, there will be a number of people. First, both Parties will be present along with their respective attorneys. There will also be a Court Reporter. The Court Reporter takes the deposition under oath and dictates word for word what everyone at the deposition says. The word for word dictation is called a Record. A Videographer may be present at the deposition too. A Videographer records the deposition by video and/or audio.
At the beginning of the deposition, the witness is placed under oath by the Court Reporter. Being placed under oath means that you are obligated to tell the truth and not lie. After the witness is placed under oath, the attorney who requested the deposition begins to ask questions. The questions may cover a wide range of topics related to the case include background information, knowledge of events and even the witness’s opinion. The witness is expected to answer truthfully and to the best of their knowledge. Once the attorney finishes their questioning, the other attorney has an opportunity to ask questions.
Depositions can occur in person or remote via Zoom. The deposition of a witness may not last more than six hours. During the deposition, there may be breaks. These breaks do not count against the six-hour time limitation.
How Do I Prepare For a Deposition?
A successful deposition requires careful preparation, honesty and a calm and composed demeanor. By following these six tips, you can help ensure that your deposition runs smoothly:
- Review documents beforehand - If you are a Party to the lawsuit, you will want to review any documents that you may have sent or received during the discovery process. It is important to know the contents of any relevant documents so that you can accurately answer questions during the deposition. For example, if the Opposing Party is alleging that you wasted community assets, you will want to review your bank statements and be familiar with the charges. It is also important to know the pleadings in the case. A pleading is a document that is filed with the Court and tells the Court what you want. It is important to know what you are fighting for and able to articulate that
- Work with your Attorney - If you have time, ask your attorney to conduct a mock deposition of you. Oftentimes this will help ease your anxiety. Your attorney can ask questions to prepare you for the deposition. This will give you a good feel about what to expect. It is also important to be honest with your attorney throughout the litigation. Your attorney represents you and your best interest. Your attorney cannot do this unless they are informed fully about the facts of the case. Your attorney cannot protect you from the bad facts if they don’t know about them.
- Be Honest and Forthcoming - When the deposition beings, you are placed under oath. This requires you to tell the truth. During your deposition, do not lie. You want to answer all questions truthfully and to the best of your knowledge – even if it is unfavorable to your case. You never know what kind of evidence the other side may have against you, and you want to avoid a situation where you are caught in a lie. It is also important to tell the truth because your story cannot change. If you say one thing in the deposition and another in the Courtroom, the Judge is going to find you uncredible and may discount your testimony.
- Listen Carefully and Take Your Time - It is important to remain calm and composed during the deposition. At times the questions you are asked may be challenging or uncomfortable to answer. Before answering, take a deep breath and ensure that you understand the question being asked. If you do not understand the question, ask the attorney to clarify. You should also never assume the answer to a question. If you are unsure about the answer, state that you are unsure about what is being asked.
- Don’t Argue with the Questioning Attorney - It is important to avoid becoming defensive, angry, or argumentative during your deposition. The attorney questioning you may want to irritate you and get under your skin – don’t let them! Ensure that you do not engage in comments that are not directly related to the questions being asked. You want to avoid opening a can of worms that the attorney can then explore. Remain calm and answer the questions being directly asked.
- Dress Appropriately - Though you are not in the courtroom or in front of the Judge, you want to ensure that you dress appropriately. A suit may not be necessary for a Party or Non-Party. Men should ensure that they wear a collared shirt, whether it is a button up or polo. Women may wear a dress or nice blouse. No one should wear flip flops, ripped jeans or tank tops.