So you’ve filed a divorce case in Texas and have gone about serving your spouse, filing all the paperwork and going about the business of trying to finish the case. Things are motoring right along until your attorney’s office calls you to say that your husband is requesting a deposition. Your mind immediately starts to wonder what a deposition might be. Is it like Discovery? Your attorney has asked you about filling out some paperwork, recently. Maybe this deposition is related to all that? Let’s examine this subject a little more closely so that you don’t have any questions about what a deposition is what role does it play in Texas divorce cases.
What exactly is a deposition?
A deposition is a kind of discovery- a tool that attorneys utilize in civil cases to obtain information from a witness or opposing party. If you have been asked to give a deposition you are known as the “deponent.” Typically depositions occur at either your attorney’s office or the office of your spouse’s attorney. You will be placed under oath by a court reporter who will be present during the deposition and transcribing what is asked and said. You will be answering questions asked by the opposing attorney in your divorce. It is possible that you will be videotaped during the deposition, as well.
Why do attorneys take depositions?
There are a number of reasons why you may be asked to give deposition testimony. Let’s take a look at some of those reasons.
First, the opposing attorney wants to get a feel for how you respond to being placed under oath and made to answer questions. Some of the questions that will be asked of you are pretty benign. They will seek basic information. The attorney may even come off as friendly at first. However, an attorney will typically shift gears in their questioning and attempt to make you feel uncomfortable, pressured or even a little hostile. This is done so that the attorney can see if he or she can push your buttons and get you to lose your composure.
Next, the attorney for your spouse will want to see what you think about the various issues in your case. Remember that what you say in a deposition is not only recorded but it is under oath. Meaning that if you were to be asked the same question in court that you were asked in a deposition, your answer would need to be identical. If they were not, the attorney could readily show that your answers did not match up. This could destroy your credibility with the judge and weaken your credibility with the court a considerable amount.
Last, the opposing attorney wants to be able to tell how “with it” you are. With as many people who go through divorces nowadays, you can probably imagine some folks are great at answering questions and some that struggle. If the opposing attorney figures out that you are an intelligent, competent and honest person he or she likely won’t be all that excited about getting you on a witness stand in front of a judge. On the other hand, if you have trouble remembering information, come off as aggressive or otherwise have a trait does not leave you well suited to in court testimony that attorney may want you on the witness stand for as long as possible in a trial or hearing.
You have done nothing wrong if you are asked by the opposing attorney to attend a deposition. The attorney has the right to make this request of you. Likewise, your own attorney may choose to ask you questions as well. Most of the time your attorney would only ask a question that would allow you to clarify a confusing or possibly misleading answer that you gave earlier in the deposition.
Keep your cool and listen to the question being asked of you
I think the most common issue I see with people answering questions from an attorney is that they have a tendency to give narrative responses. Narrative responses are basically long winded, extremely detailed responses to a question that only asked for a small bit of information. The trouble with these sort of responses (besides the fact that they do not address the question directly) is that you run into the issue of providing information in your response that may hurt your case.
It is human nature, I believe, that if you are on the defensive about something that you will give long winded answers at the first possible opportunity. You have been waiting so long to get this information off of your chest that you leap at the chance to say anything at all about the subject. Keep in mind that your opposing attorney is not going to give you a great opportunity to ask questions that allow you to come off looking good. It’s more likely that he or she will have asked you questions that are designed to get you to start talking in a way that could hurt your case.
If you stick to the basics- listen to the question asked, give an honest answer and don’t divulge more information than the question asks for- you will come off as a strong witness. This will encourage the other attorney to attempt to negotiate and settle with you rather than push your case to a trial. This will save you time and money in the long run.
Details about the mediation day
Depositions occurs in an office environment- not at a courthouse. The judge in your case will not be there, although you should assume that the judge will eventually see everything that you say in the deposition as well as how you behave. Your attorney, your opposing attorney and a court reporter will be present. Your spouse will not be present.
Your deposition will last at most six hours. You will be given breaks in between testifying. Typically, a deposition for most divorces will not take that long but you should plan on being there for a long stretch of time. Don’t schedule other appointments on the day of your deposition. It would make sense to tell your employer that you will be out for the whole day due to the deposition.
You can expect that your attorney will issue objections to some of the questions asked by your opposing counsel. Sometimes the form of the question that the attorney asks will be inappropriate. Your attorney will do so in order to protect you and to keep any answer you provide from getting into the official record of your case. The opposing attorney may object to one of your answers as being nonresponsive. Your attorney can tell you not to answer a question, but if he or she makes an objection otherwise, you will still need to answer the question asked of you.
Is there a dress code at a deposition?
If you are not being videotaped then your wardrobe is not especially important. However, you should still come dressed in business casual attire. This shows that you are taking the process seriously and that you have respect for the other people involved in your case. I find that when I “dress up” my demeanor and body language changes for the better. I am more alert and act more professional. I believe the same would apply for anyone reading this.
How should you get ready for your deposition?
What I would suggest is that you should ask your attorney for a copy of your file prior to the deposition. Or, you can simply go into their office and look at the paper file with your attorney or their paralegal. You do not have to learn every document word for word, but it is helpful to know what is going on your case from a procedure perspective. The better educated you are on the issues of your case and on what is being argued about the better you can respond to questions in a way that is advantageous for you.
Unless you have been asked to bring documents to the depositions, I recommend that you leave paperwork and other documents at home. Usually all that they do is distract people being deposed. You may think that having some notes or other documents available will help you recall information and be more able to provide the attorney with an accurate run down of events. I find, however, that the folks who bring in a bunch of paperwork and documents will usually spend an inordinate amount of time rummaging through them. This can be a huge distraction and can take away from your testimony.
Meet with your attorney before the deposition
Your attorney should sit down with you before the deposition to go over your testimony and discuss what documents you should and should not bring with you. Now would be a great time for you to come clean to your attorney about any information that may be harmful to your case that you have been too shy to tell him or her. It doesn’t matter if that information could be potentially damaging to your case. You need to be truthful so your attorney knows how to respond to issues that arise and how best to help you.
Answering questions in a deposition.
The most important thing, by far, in a deposition is to give honest answers. If you can be honest then that is more than half of the battle as far as answering a question appropriately. Remember that you are under oath and that the opposing attorney can use misleading or untruthful answers against you in a trial or hearing. Telling a lie while under oath in a deposition is against the law, it is important to note.
Do not give an answer to a question based on inferred, assumed or second hand knowledge of a situation. If you do not know something from your personal knowledge then you should not answer the question. Saying “I don’t know” is a fine response to a question when you honestly do not know the answer. Don’t get into a situation where you are having to qualify every response that you provide. “I’m not exactly sure, but I think that…” is not a great way to answer a question and can ultimately harm you a great deal.
Another thing to keep in mind is that if you don’t know the answer to a question, it is appropriate and you should answer that you do not know. The other attorney will not think you are dumb or anything like that. I would go ahead and say that if you cannot remember some for certain you should not venture an answer. However, if you get into a situation where you are relying on memory for something then it is crucial you state that you are not sure about how factual your recollection actually is.
There is more information and tips that I would like to provide you with as far as how to respond to questions from an opposing attorney in your family case deposition. In tomorrow’s blog post I will share that information with you as well as more pointers about different components of a deposition.
Questions about Texas family law? Contact the Law Office of Bryan Fagan
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