| Depositions are a very important aspect of the discovery process. Unlike courtroom proceedings, depositions are less formal and typically occur in an attorney’s office, but they hold the same weight as if the testimony were given in front of a judge.
The primary purpose of a deposition is to discover the truth about contested issues such as finances, property, and child custody arrangements. This process helps highlight any inconsistencies in a party’s story, which can be vital during negotiations or at trial. It also allows attorneys to assess the credibility of witnesses and gather information that may not be readily available through documents or written interrogatories. Participants in a Deposition The individuals who participate in the deposition include:
Judges are not present during the deposition although they can be called to provide input in very select situations. What Happens in a Deposition? The deposition begins with the court reporter administering an oath to the deponent just like the oath sworn in court. After that, the attorney who scheduled the deposition will question the deponent. The deponent’s attorney (usually the opposing attorney) may object although to questions however, except in very limited circumstances, while the objection can be made the deponent must still answer the question. Think of the process as a fact-finding mission to gather evidence, expose inconsistencies, and strengthen arguments for the upcoming settlement or trial. While sometimes tense, it is vital for both sides to understand the other’s perspective and build a more complete picture of the case. On occasion, your deposition may be videotaped so you will also see a video camera and the videographer in the room. If your testimony is videotaped, you may be asked to wear a mini-microphone which attaches to your clothing with a small clip. Exhibits may also be included in the deposition. When the initial attorney is finished the deponent’s attorney may have questions to ask but the majority of the time, they will not ask questions preferring, instead, to talk with their client afterwards. It is vitally important to speak clearly and slowly so that the court reporter can make a complete record of what is said. The deposition can last several hours, depending on the complexity of the case and the amount of information needed. At the end, the court reporter will give the deponent the opportunity to read the transcript first or waive presentment. In other words, the deponent could read the transcript but only to make minor corrections (i.e. incorrect spelling of names, etc.). The final transcript can then be used in the court proceedings. Preparing for a Deposition Individuals facing a deposition should work closely with their attorney to understand the scope of questions likely to be asked. You may be asked to gather documents such as financial records, emails, and any relevant written communication and reviewing these documents may help refresh memories and ensures consistency in responses. If you had to answer interrogatories in your case, be sure to read your answers to the interrogatories at least two or three times in preparation for your deposition to make certain that your answers are consistent. Any inconsistencies can potentially be used to discredit you in trial although if something has changed this is the time to point out that change. Many people often about whether the other party will ask them nasty divorce questions. In other words, will the opposing attorney ask questions about a history of abuse or addiction? Will they ask questions about physical or mental health issues, about criminal histories, or about an affair? The answer is yes. The opposing counsel can and likely will ask you questions that make you uncomfortable and/or embarrass you. One strategy is to ask questions that will embarrass or anger the deponent so badly that they will start spouting off and make rash statements or, if the person is trying to hide something, the person will start shouting the truth out. However, it is important to note that your attorney can object or advise you to refrain from answering. However, just like with the objections, with some questions, even if they seem malicious, you will still need to answer in the interest of the case. Objections & Protections for the Deponent Attorneys have the right to object to some questions that are irrelevant, overly broad, or designed to harass. The deponent’s attorney will have to be on guard to make these objections and make sure the line of questioning remains within the bounds of the law. The deponent can ask for breaks when needed, especially during lengthy depositions but if you try to take a break after a question you must still answer the question before you take the break. It is important for deponents to understand that while they must answer questions truthfully, they also have rights that safeguard their interests and well-being throughout this challenging process. How the Deposition Testimony Affects Your Proceedings Deposition testimony carries significant evidentiary weight in divorce proceedings. The transcript locks in stories and facts before the trial because it prevents a party from changing their facts. The deposition transcript can be used to challenge a witness’s credibility if their statements in court differ from what was said during the deposition. This is what is referred to as impeaching the witness. These transcripts can also be useful during settlement discussions, as they often reveal the strengths and weaknesses in each party’s case. In some instances, the information uncovered during a deposition can lead to a settlement without the need for a trial, saving both parties time and emotional distress. Final Thoughts Show up early for your deposition so that you have some time to talk to your attorney beforehand for any last minute advice. Dress appropriately for the deposition. Take this opportunity to rehearse as though you were appearing in court. This is just an overview. If you get called to provide your deposition, we will provide you with a much more detailed letter to give you additional instructions and information. |
