Question: I am in the midst of heated court proceedings with my husband whose lawyer has the reputation of being a barracuda. My lawyer, on the other hand, is somewhat laid back Ė somewhat like me. He did alright at our temporary hearing, but now we are facing depositions, and he has done little to prepare me for what will happen. Aside from giving me a booklet to read, I have had no contact with him. This disturbs me, but I canít seem to get him excited. Am I wrong? How should I prepare to testify if heís not going to help me?
Answer: When you go to court -- or when your deposition is taken -- you will be required to testify under oath. This means that you will be sworn in by a judge or clerk or notary public and then will be required to answer the questions put to you. Make sure you and your lawyer review the likely questions that will be asked; however, remember that when the questions begin, you will not be able to ask your lawyer -- or anyone else -- for help. Thatís why, in addition to knowing your material, you must be honest -- because if you get caught making a dishonest statement, your credibility will be questioned and your case could go down the tubes.
Thatís why, when you testify, you must concentrate on the event. If you let your mind roam, you could be facing disaster. You should listen carefully to everything that is going on. If anyone begins to talk, stop and listen. When anyone interrupts you, stop and listen. When your lawyer makes an objection or statement, listen because your lawyer may be trying to tell you something you need to know. If your lawyer tells you not to answer a question, don't answer. Before you answer, listen to the entire question, and have it repeated if you donít understand it. Donít try to anticipate what the question may be or you may miss what is being said. Be attentive, and donít slouch in your chair.
Before you answer, make sure you understand the question, and never answer a question you don't understand fully. Sometimes, lawyers will ask questions prefaced by assumptions that may or may not be correct. Make sure you understand the assumption before you answer. If you don't understand, say so. Itís not a sin to admit that you don't understand, especially when you are on someone else's turf. You are entitled to have the question rephrased or repeated. If the question has more than one part -- including the assumptions -- answer each part of each question separately.
When you do answer, answer directly. Make sure not to volunteer anything that is not asked. If you don't know or don't remember, say "I don't know," "I don't recall," or "I don't remember". Ask your lawyer, but you might add "If I find out or later recall, I will notify my lawyer." Always tell the truth, even if it hurts, because perjury hurts even more. If possible, answer "yes" or "no". But remember, you have a right to explain and can say "Yes, but..." or "No, but...".
A good lawyer will try to get you to change your answer so that the inconsistency can be used against you later and to question your credibility. Don't fall for it. The same question can be asked in different ways, so be sure to stick to your answer. And don't be lulled into engaging into friendly conversation with the other lawyer. He or she is not there to be your friend. Don't guess at an answer. If you don't know or don't remember, say so. Don't look at your lawyer for answers.
Answer each question verbally. Don't nod or shake your head. Don't mumble or use "Uh huh" which may be mistaken for "Uh uh" or "Huh huh". Don't raise your voice or lose your temper or become angry. If you bring notes into the deposition or hearing and refer to them, those notes become fair game. So never bring any files or other documents with you unless you won't mind the other side looking at all of them.
Don't use such words as "absolutely", "never", "always", or "positively" because these words can get you in trouble later. And be ready to admit that you are not perfect. Everyone has faults.
All experienced matrimonial lawyers understand Ė and impress on their clients Ė that the deposition is one of the most important parts of a matrimonial case. Depending how well prepared you are and how you testify, your case can sink or swim based on your deposition. In our view, your lawyer is committing serious error if he does not prepare you for this important event. For you to be writing us about this issue means that you and your lawyer have a relationship problem that needs to be addressed before you are deposed.
Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder law, and tax attorney. Both are based in Columbia, South Carolina.
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