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Preparing for Deposition in Divorce Case
Jan L. Warner & Jan Collins

Question: I know you don’t answer questions directly, but I feel that I am about to get myself into a pickle and would appreciate your response. My lawyer’s paralegal called and told me to come by the office to prepare because my husband’s lawyer wanted to take my deposition the Tuesday after Thanksgiving. I have never been involved in a lawsuit before, so I didn’t know what to expect.

Instead of seeing my lawyer, however, I was put in a room with a television set and a VCR and told to watch a video that was supposed to educate me about depositions. I watched it twice because I was so bored the first time that I was afraid I had fallen asleep and missed something. I tried to get to see my lawyer, but he is out of the office until the Monday after Thanksgiving, and my deposition is scheduled for Tuesday. I don’t feel prepared, but the paralegal says I will do fine and that my lawyer will be there with me. But I don’t know what to bring or what I will be asked about. I feel very uncomfortable. Should I insist on seeing my lawyer first, or listen to the paralegal?

Answer: Your husband’s lawyer has several reasons for wanting to take your deposition (that is, asking you questions and getting your answers under oath in the presence of a court reporter who will type every word you say), not the least of which is to tie you down on positions that you will take during the trial and to get as much information as possible about your case from your perspective. By getting you to commit to facts and circumstances and to explain certain documents that you may be shown, your husband’s lawyer will try to get admissions that will be helpful to his case and will try to put you in a position whereby you can be discredited and contradicted at the trial.

And you can bet that your husband’s lawyer will be assessing your appearance to get an advance picture of how you will appear in court – that is, are you believable, defensive, or equivocal in your answers? A good lawyer will see your soft spots, and this will help him or her evaluate how you will “present” in court.
Whatever you may say in your deposition can – and will – be used against you at a trial to attempt to prove a position or to show you were not being truthful. When your deposition is taken, your husband’s lawyer will be able to ask you about anything that could reasonably tend to lead to evidence. And since anything you bring into the room with you is fair game for inquiry (wallet, checkbook, notes, files, etc.), you should know what to bring and what not to bring.

While the video you watched has its purpose, we believe that no video, standing alone, is sufficient preparation for this pressure-filled event. Learning from the video such practical instructions as “Tell the truth,” “Don’t volunteer information”, “Don’t guess at answers”, and “Understand what you are being asked before you answer” is important, but not as important as a face-to-face meeting with your lawyer to review your case and the documents about which you may be asked.

The fact that your lawyer will be with you at the deposition should not give you much solace because your lawyer can’t answer the questions for you and can’t help you when you get caught in a crack. Your lawyer can certainly protect your interests and keep you from being harassed, but that is the extent of it. Your lawyer can make objections to privilege issues, but not much else. He will not be able to keep you from giving answers that hurt your case.

Because credibility or believability of parties and witnesses is very important to the judge who decides your case, the taking of a deposition is most important. The use of “I don’t recall right now” or “That’s all I can remember now” or “I don’t remember” doesn’t go far with judges. So don’t be a turkey! Call your lawyer’s office and tell the paralegal to have the deposition postponed until you have the time to see your lawyer first. If he is not willing to see you first, we think you should re-evaluate your professional relationship with him.

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