Do you need help in how to approach an upcoming deposition in your family law case? Have you filed for divorce and are wondering about what may come next? Then you have come to the right place. A deposition, as they relate to Texas civil cases, is a method of obtaining information from a party or witness to a case. That party or witness will be asked questions by an attorney. There is where the trouble can start.
Do you know anything about lawyers? How they operate in a deposition? All the more reason to keep reading today’s blog post from the Law Office of Bryan Fagan. While you’re at it- why don’t you contact our office today? We can set up a free of charge consultation for you to discuss your case, answer any questions you may have and introduce you to some of the reasons why becoming a client of ours is in your best interest.
Now, let’s get down to business. A deposition is a situation where you will be asked questions by the opposing attorney in your divorce case. You will be put under oath to answer questions. That lawyer knows you are under oath. You know you are under oath. As a result, the lawyer will use this to their advantage and may ask questions that cause you to doubt your own, honest responses.
Be sure of your answer and don’t back down
For instance, do not be surprised if you provide an answer that harms your spouse’s case and the questioning attorney acts incredulous at what you have to say. Their goal is to get you to backtrack on your statement, catch you in a lie or make it seem like you are unsure about what you had to say. Anything to potentially ruin your credibility to the judge. Your deposition testimony can be read aloud from the record being taken (a court reporter will be present in the room) or if it is being videotaped the proceeding can be shown on television in court.
How can you meet this type of questioning? Simply put, you should act calm, cool and collected. If you are sure of your answer you should act that way. Attorneys rely on you being nervous and unsure of yourself in order to impact your testimony in ways that go against your best interests. Remember that you know the answers to the questions the attorney is asking. The attorney may think she knows them, but she’s operating off information provided by your spouse.
Using absolutes may hurt your credibility
Another issue that I see people run into in depositions is that they will want to use absolute terms. Using words like “always”, “never”, “every” and others makes it seem like everything in your life is either 100% great or 100% terrible. People that speak constantly in absolutes appear to be less connected to reality and more susceptible to hyperbole. Again, this goes back to your credibility with the judge. You want to appear as credible as possible and speaking in absolutes tends to hurt this effort.
If you have to guess at an answer- say you don’t know
This is a big one that I will always emphasize to folks. If you are in a position where a question asked of you requires that you guess or approximate a response, you are better off not giving an answer at all. Number one, the information being sought may be available via another source. Number two, if you guess wrong at an answer there is no telling how that incorrect response could be used against you. Use your best judgment but I would recommend never venturing a guess when you are not sure of something.
The basics- make sure you understand the question being asked of you
There is no way to give an accurate answer to a question if you do not first understand the question being asked of you. This may seem obvious to you and I, but if you find yourself in a chair being deposed by an unfriendly opposing attorney it will probably seem a lot less clear to you. Something happens when you have all the pressure of your case on your shoulders and you are being asked to defend something you did or talk about something that happened a long time ago.
There is a tendency to want to give an answer- some answer- to everything asked of you. It doesn’t even have to be the right answer. As long as you say something it will help you to feel better. You’ll move one question closer to being done with the deposition. You can go home! You’ll be free! My advice would be to stop thinking like this immediately.
Make sure that the question being asked is clear to you. First, if you don’t understand the question ask the attorney to re-ask the question. If you still do not understand the question ask the attorney to ask the question in a different way. Then if you understand the question you can provide an honest answer. Do not assume that you understand the question if you do not. Don’t try to help out the attorney, either. If he or she cannot put together their thoughts in a coherent manner it is not your duty to throw him or her a lifeline.
Also- be careful if the attorney asks you what is called a compound question. This is two questions asked back to back. You should make it clear to the lawyer that you are not sure how to answer two questions in one. The lawyer can rephrase their question in a format that is easier for you to manage.
Keep your answers short and sweet
You do not need to feel obliged to provide long winded answers to the questions asked of you. In fact, it is probably better to keep your answers short and to the point. Do not disregard the question being asked of you. Do not dance around an honest response. But you also do not need to feel the need to give up a lot of information that has not been asked for by the attorney. You are under no obligation to do this. It will likely hurt your case.
I have spoken with many clients who feel like, in the moment, that when asked a question by the opposing attorney it becomes their opportunity to tell their side of the story. I will tell you now that you will have plenty of chances to tell neutral individuals your side of the story in a divorce. Whether it is a mediator or a judge, you will have your moment of truth. However, the opposing attorney is far from neutral. He or she may be smiling at you but their intent is to hurt you and your case. It’s not personal, but it’s their intent. Don’t help him or her do so.
You can provide honest answers without providing information that is not necessary. Attorneys are pretty smart. Let him or her figure out how to build a case on their own without you helping the cause. You do not need to provide your opinion in an answer unless one is asked of you. You can give a straightforward answer. Do not editorialize or give little aside comments that can cause you to look foolish or snarky.
Next, it is perfectly fine to give yes or no answers. As a favorite talk radio host of mine is fond of saying: No is a complete sentence. If you can complete your thought by saying yes or no I would recommend going that route. You are not being rude or discourteous by being brief. I can’t recall a situation where a yes or no answer landed a client in hot water.
Keep your cool- no matter what
The bottom line is that you should view a deposition like a dress rehearsal for a trial. How you respond to questions in a deposition will allow the opposing counsel to see how you are likely to respond to them in a courtroom. You are likely being placed under oath and asked to give testimony for the first time in your life. There is no doubt that you will be a little on edge, but there is no need to lose your cool. Your case will not be decided in a deposition.
The worst thing that you can do is to get upset or angry at the attorney asking you questions. So much of a family law case boils down to how well you can place nice in the sandbox. If you are seen as someone whose emotions can be taken advantage of on the witness stand, the other side will be less willing to negotiate in good faith with you. By the same token, you may have a strong point to make, but if your emotions get in the way the point you are trying to make could be hidden by your outward show of emotion.
On the other hand, you need to take a deposition seriously. Even though you are not in court, you need to act like you are. Even if the opposing attorney is dressed casually (i.e. not in business attire) you should not assume that you are about to engage in a friendly, casual conversation. Treat the deposition testimony as if you are going to court and giving testimony in front of a judge.
Do not make jokes or treat the situation with less respect than is warranted. What you say in the deposition will be transcribed into a written record. What sounded funny or lighthearted in the deposition may not come off that way when written down. You can be in good spirits and polite without being sarcastic, snarky or overly humorous. Treat the situation as a business meeting. Take care of business, be professional and then leave. Simple as that.
Keep documents out of sight
If you are unsure of an answer, do not give that answer. If you need to refresh your memory it may be tempting to open up your journal or get on your cell phone and pull of a document you created. Do not do this. The law in Texas is that if you refer to a document during a deposition you will then have to turn that document over to the other side for review. This could end up hurting you a lot more than the ability to refer to it in the deposition helped you. Use your memory to answer the question and if that fails you, don’t answer it at all.
Final thoughts on depositions
Depositions are no more important to your case than any other step in the process. However, they have a feel of something that is more important. You are testifying and interacting with an attorney whose interests are hostile to your own. You are having to answer questions that may not paint you in the best light. For whatever it’s worth, you will be a little uncomfortable and uneasy.
All of this is to say that if you prepare for a deposition you can do well. Well, in this case, means answering questions truthfully, not hurting your case, and not spending all day with your spouse’s attorney. You should work with your attorney to prepare for your deposition based on the specific factors in your case. Take the time to do so, and your chances at having a productive deposition increase a great deal.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to get direct feed-back about your specific circumstances and to ask questions that can help you learn more about your options.