Ciyou & Dixon, P.C. attorneys frequently field questions from their divorce clients about depositions.A large number of these questions come from clients who are about to be deposed by their spouse or ex-spouse in connection with divorce or post-divorce litigation.
We find there are seven basic considerations to prepare for a divorce deposition. As advocates, we hope these provide you with some useful information and insights to discuss with your counsel.
The first inquiry is “What is a deposition?” The place to begin is with a clear understanding of what a deposition consists of. A deposition is a lot like a trial and trial testimony in that the person to be deposed (the deponent) is sworn in to answer questions under penalty of perjury.
However, instead of the testimony (deposition) occurring in a court room, a certified court reporter records the question asked by the deposing attorney, and objections of the deponent’s attorney. It is then reduced to a written transcript, with the testimony, questions, and objection set forth.
At the broadest level, a deposition is one of several discovery tools provided for by the rules of the Supreme Court, the litigation is to follow. One purpose that should be apparent is obtaining information to prepare the case for trial before the judge or jury. Discovery is the method by which information is obtained to get a case ready to prove under the burden of proof at trial.
In domestic cases, discovery typically includes written questions to the other party (which are called interrogatories), request to produce items, and/or deposition of a party. The discovery, including deposition questions, are about legal issues in the case and can be quit broad.
The biggest limit to discovery is the questions asked (or documents sought) cannot be purely for harassment purposes. However, they are usually allowable so long as they are reasonably calculated to lead to admissible evidence.
Generally, in domestic cases, this allows the attorneys to understand a litigants position. For example, if one spouse alleges the other dissipated marital assets by gambling, a deposition is a way questions about gambling and amounts spent on it may be asked to qualify this legal theory. A deponent must either answer truthfully or commit the felony of perjury.
The process of a deposition closely tracks a witness’ trial testimony. The witness is “called” by the deposing attorney and sworn in. After this, it is typical that a number of identification questions will be asked, such as name, address, date of birth and the like. Following, the deponent will be asked questions that will be relevant to the issues before the trial court. These may be ordered issue by issue or apparently random.
After all direct exam questions are asked, the deponent’s attorney can ask questions on the direct exam that relate to those already asked, which is cross. This follows by re-direct and re-cross. When these are complete, the deposition concludes.
At any point, the deponent’s attorney may provide any objection for purposes of the record. Once made, the deponent will answer unless instructed by his or her attorney not to do so. Instruction not to answer is fairly rare, but may occur, for example, if the deponent/attorney assert the Fifth Amendment Privilege against self-incrimination.
The purpose in objecting is to preserve the right to object to the question if the transcript is used at a subsequent trial. This is fairly rare, but if the deponent would die or otherwise, it may be used in lieu of live testimony.
Most deponents are classified as “hostile” witnesses. This means their testimony is being elicited by the opposing counsel to obtain information that may be, or is inconsistent, with their legal objectives. For this reason, answers to questions should be specific and not rambling as a general rule.
This is because the broader the answer in response, the more ambiguity may be viewed to be in it and the more chance of it being deemed evasive or non-responsive. The people who do the best job of properly and fully and truthfully answering deposition questions are those who proceed in a linear fashion. Point “A” is followed by point “B”, which is in turn followed by point “C”.
The beauty of the world and why it works is because we all have different ways of looking at situations. Sometimes this is reflected in the way a question is answered, not in a linear format.
An appropriate, but nevertheless, non-linear answer is found in the following example:
Q. “Did you drink alcoholic beverages during the marriage?”
[A. Linear: No.]
Q. Non-Linear: “I grew up a devout Southern Baptist. Consuming alcoholic beverages is strictly forbidden. In fact, my best friend in high school was severely injured drinking and driving. To see the accident scene was really troubling. I realized that day just why alcoholic beverages are forbidden in the Bible. I vowed right then to never even think about alcohol since that day and haven’t.”
Ultimately, these both answer the deposition question, but if a clash of religions is also at play in the case, the second answer clearly points out the depth of conviction about that religious choice. This is an unintended admission, and one that could be problematic in the future. For this reason, specific and to-the-point answers are generally advisable.
Complete answers are often found in the following responses: “Yes.” “No.” “I don’t know.” “Maybe.”
The way a deponent answers a question may speak to his or her truthfulness and accuracy of answers. The functioning of the legal system is based on the truth. Truth is sometimes opaque and there are many gradations to it. For this reason, there are many ques a deponent provides to help the attorney understand the answer.
For instance, a snap answer to every question could reflect the witness has prepared so much that the testimony is scripted and memorized in anticipation of answering the question “correctly”, not truthfully. Equally, a witness who looks up and to the left or right is often searching for how to answer the question consistent with the case, not honesty.
One of the best ways to answer is with direct eye contact and brutal honesty. Not an automatic pre-programmed response. Nor a circular evasive answer. Some deponents are not “wired” this way and this is okay. However, words and body language do have content and attorneys and judges are very aware of this.
The Rest of the Story.
A few final comments round out preparing for a domestic deposition. In some cases, it is possible a deposition will be a video-deposition. This should not cause concern, but bolsters the comments above about the body language and non-verbal aspect of every witness statement. Where there is a video deposition, it important to remember this. Sometimes the words and body language and inconsistent.
A related concept is found where the “answer” provided is not reflective of the entire context. Where this is the case, the deponent’s body language may indeed reflect the “cringe” with the answer. However, deponents should be mindful that there is cross, re-direct, and re-cross in which his or her counsel may (and probably will) ask a clarification question to elucidate the point.
Of particular import where there is an accent or language or comprehension issue, a deponent may review his or her deposition and qualify any mis-statements or transcription errors on an “eratta” sheet that goes with the deposition. This is commonly referred to as “signature.” The deponent wants to review and sign the deposition as to accuracy and provide any eratta.
Finally, depositions may be condensed. This means there are four pages of type transcription for every page of type, versus one per page. Literally, this looks as if the page is divided in to quarters with each of four (4) deposition pages included in one of the four (4) quarters.
Ciyou & Dixon, P.C. hopes this general background information allows you to be a more informed legal consumer to help you help your counsel to advocate for your objectives. The right case preparation through discovery and understanding of the process facilitates this. Ciyou & Dixon, P.C. advocates handle family law cases throughout the State.
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