If you ask ten attorneys for some advice on answering questions whether in a trial or a deposition you are likely to receive ten different tips or tricks to apply to your own case. While you want as much information as possible in helping you prepare for your big day, it would be helpful to you if you could learn the most practical and time efficient methods of improving your performance in a potential deposition.
With that said, today I would like to continue the Law Office of Bryan Fagan’s recent theme of providing you with some hints on how to testify and present yourself well in a family law deposition. While you will not be in a courtroom, a deposition will occur after you are placed under oath and sworn to tell the truth. Your testimony can impact your overall case in profound ways so it is important that you are prepared before you start to answer questions.
The basics of answering questions in a family law deposition
Listen to the question and answer this question. This may seem like the most obvious piece of advice that I could provide you with today but there is some wisdom buried within this pretty obvious sounding statement. Allow me to explain.
To answer a question, you need to understand that question. Have you ever overheard a conversation where one people asks a question and the other person gives an answer that does not at all relate to the question being asked? This happens with some frequency when people answer the question without first having heard, understood or bothered to think about their answer before opening their mouth.
Don’t let this happen to you on an important day like your deposition. You need to first make sure that you understand the question being asked of you. That means you should do your best to slow down your mind and listen to each word of the question. Do you understand the question? If not you should ask the attorney (politely) to repeat the question. Once you hear the question and understand the information that the attorney is seeking you should consider whether you know the answer. If you do, provide an honest and short answer. If you do not know the answer to the question you should say you do not know.
Take advantage of one-word answers. You do not need to go on and on about any subject. Many of you reading this blog post are the type of chatty person who is more than happy to go on (and on) about important subjects like your family. If you are not sure if you are one of these people, chances are you are one. Ask your family members if you have a tendency to give long responses to simple questions. If you do, work with your attorney to see if you can eliminate this problem.
Volunteering information is not something that is necessary. You are not being nice, generous or kind by providing information to the other attorney that he or she does not ask for. That person is more than capable of asking you a question to get you to provide information that he or she needs for their case. Or, the attorney can submit discovery requests to your attorney where you will have to provide documents or answers to specific questions.
Be short, and be sweet
When you answer a question from an attorney you should do so in as few words as possible. Remember that this is not your friend who is asking you questions, rather, this attorney is working to help their client and hurt your case. He or she is not doing this as a personal attack against you- this is what their job requires them to do. Don’t get confrontational with the lawyer but look at your deposition as an event for you to make it out alive from. You’re on defense when you are giving deposition responses.
I realize that in many situations it is awkward for there to be silence in the room. On a first date, silence is bad. In a deposition, silence can be golden. What you are trying to prevent are unnecessary and unhelpful responses from being provided to your opposing attorney. You can ensure that this does not happen by allowing the attorney to seek information, rather than providing it to him without cause.
Do not give your opponent any confidence that you will hurt your case by testifying in a trial
The more you expose yourself in a deposition- as a weak question answerer, an angry person, a person who cannot control their emotions- the more your opposing attorney will feel confident about taking you to trial. Learning how to compose yourself in stressful situations is an important part of being a party to a family law case. As such, do not allow yourself to be frazzled by an opposing attorney in your deposition.
You are going to be asked questions that may upset or at the very least frustrate you. If you are the type of person who gets very animated when answering questions or passionate when talking about something important to you then you should consider how you will react to questions about your family in a deposition. You may need to practice keeping your emotions under control.
If you cannot control yourself in a deposition setting, just imagine how you will react when you are being asked similar questions in a courtroom in front of a judge. Your opposing attorney will surely be keeping this in mind as you answer questions. It is up to you how you react. No matter what is said to you in this deposition you need to be able to be civil and respectful. Rolling your eyes, shaking your head, gesturing with your hands or arms is not something that will help you.
Keep in mind that the attorney is just another person- not an authority on the law
Attorneys would like you to believe that they are superhumans with superhuman powers of legal brilliance and skills. While an attorney is trained in knowing how to approach complex issues and is likely an intelligent person, he or she is not any different than you or I. My point is that you should not feel intimidated by an attorney. Feeling intimidated will lead to you giving answers that you may not want to out of fear or anxiety. Remember to keep in mind that the attorney puts their pants on one leg at a time just like you do.
Ask for a break if you need it
Depositions normally don’t last more than a couple hours but they can if your situation is a complex one. If you are two hours into a deposition and the attorney is flipping the pages of his notes to start asking more questions you can ask for a break if you need to. Get up, stretch your legs and get a sip of water. Let your brain refresh itself for a moment. You will feel more prepared to give answers. The stress level that you feel will go down and your performance will likely improve.
There is no shame in saying that you don't know the answer to a question
I’ve noticed in my years as a practicing attorney that people do not like to admit that they do not know something. If you are asked a question in your deposition and do not know the answer to that question you should say so. There is nothing wrong with saying as much. In fact, it is much better to say that you honestly do not know the answer to a question than to guess at an answer that you are not sure about.
The reason why you don't want to guess at an answer is that if you are wrong your credibility can take a hit at your trial. The reason being that your answers from the deposition can either be read aloud in a trial from your transcript or your answers can be viewed by a judge if the deposition was videotaped. Imagine the hit that your credit would take if you gave an answer in the trial that was completely different than what you said a few weeks previously in your deposition. Even if you were not purposefully being untruthful it may be unavoidable that you look silly or less credible while on the witness stand.
Even if the other attorney makes it seem like it is ok to give a “guess” do not do so. If you did that in a trial or hearing the attorney would surely object to your answer being speculative. Only answer questions when you are certain of the answer that you are giving. If an attorney figures out that he or she can get you to answer questions that you are unsure of, be prepared to be on the defensive for the remainder of your deposition.
Leading questions can be asked in depositions, but resist the temptation
The lawyer asking you questions in your deposition would very much like to lead you around like a puppy to giving him the answers that he wants. The questions he asks you will be asked in a way that should elicit a particular response from you. Rather than falling prey to this trap, you should listen to the question and give an answer based on your specific knowledge. Do not be swayed by the question or the extra information being provided to you.
You can and should speak up if the attorney is misrepresenting you, your spouse or another person while you are being asked questions. Do not be rude to the attorney, but provide him or her with corrections where you need to. If you sit idly by and let the attorney ask you whatever she wants you are forcing yourself to answer questions on her terms.
Answer the questions at your own pace
You do not need to give a rapid-fire answer to the questions asked of you, even if the attorney is asking you the questions at a rapid-fire pace. If your deposition is only recorded orally there will be a record of how long you took to answer a question. So, take a second and collect your thoughts before giving an answer. Use that time to prepare an answer. Your case will be stronger for your having done so.
Ask the attorney to rephrase the question if you do not understand it
While your deposition will likely not feature a bunch of questions that are difficult to understand, it is probable that you will need the attorney to ask at least one question again to make sure you understand it well enough to give an answer. This is easy to do in theory. We do it all the time in our private lives when we’re not sure what a friend or family member means by the question they are asking us.
However, something happens in a situation like a trial or deposition where clients are not willing to ask an attorney to rephrase a question. I would encourage you to do so if you are not 100% sure of the meaning of the question. Nobody is going to think you are not intelligent and nobody is going to be insulted by your asking to rephrase a question. Do so and you will achieve a better outcome in your deposition.
Questions about depositions in Texas family law? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we presented you all with today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys work on behalf of clients just like you every day in the courts of southeast Texas. We offer free of charge consultations six days a week where we can answer questions and address whatever situations are facing you and your family.