If all other negotiations fall through and your divorce looks destined for a litigated battle in court, there is a good chance you will have to go through a deposition. This is not a fun experience — you will be taken into foreign territory (often the opposing attorney’s office), put under oath and asked a series of questions while a recorder generates a transcript of everything you say. It is all usable as evidence in court.
The name of the game once you are put in this situation is to answer the questions truthfully (you are under oath after all), but to divulge nothing extra than what is asked. The goal of your opposing attorney is to get you to say something that will harm your case, and lawyers are masters of manipulating the line of questioning to lull you into a sense of conversation. Let me be perfectly clear: Depositions are not conversations.
Once you lose sight of the formality of your situation, the opposing attorney has you right where they want you. Here are a couple tips to help you keep your edge if you are ever put into the hot seat.
This is one of the main goals of your opposition during a deposition. While they are also gauging the facts and how you will react to questioning, they are waiting in the brush with claws sharpened and ready to pounce on any slip-up you make.
Some of the questions may seem harmless and others more detrimental, but what the attorney really wants is for you to try and explain — this is what gets people. It is natural if asked a question that might not shine you in the best light to try and clarify the details of “it’s not what it looks like.” This will hurt you more often than not.
Just truthfully answer the question that is asked, then consciously make yourself stop talking.
Depositions are not a race, so take your time
Really take the time to consider the question and formulate an answer in your head. The opposing attorney will be trying their hardest to make you feel uncomfortable and rushed. Don’t let awkward silences push you into making a mistake. Sit through it and repeat the question over and over in your mind while you formulate an honest response.
It is natural to feel uncomfortable in these silences and have the urge to fill lulls with conversation. Fight that urge and let the conversation move at your own pace. It is OK to ask for clarification if you do not understand the question, to ask for the question to be repeated or to request breaks (depositions can last hours).
Do not be afraid to say that “you do not know” or that “you do not remember” — and know the differences between those two phrases
Guessing at answers is never helpful. While you will be made to feel that a definitive answer is necessary by the opposing side, everything you say is under oath and can be used as evidence. Many of the questions may be about events from months or years past, and it is expected that you will not be able to remember everything.
However, saying that you “do not remember” and saying that “you do not know” mean two completely different things. Not knowing implies there is nothing that can help you remember facts, whereas not remembering implies that the knowledge could be triggered somehow — maybe by documentation, pictures, notes or any other medium. This slight difference could become very important.
Most importantly, always tell the truth
A discrepancy between deposition and trial testimony can be a killer when it comes to your case. It is natural to feel the need to cover up certain facts that may be harmful to your case. However, it is even worse to lie and find out later that the opposing party has evidence to prove it. Now, you have just destroyed your credibility and integrity.
Answering the question honestly, even if it has a negative impact on your case, will pretty much always be less detrimental than being caught in a lie. Context has a lot to do with questions that seem damaging, and that can be clarified later during cross-examination. Not to mention being caught in a lie while under oath is against the law and a punishable offense. If you only remember one thing before you reach your deposition, just remember to be honest and you will most likely live to fight another day.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”