All About Depositions

[Adapted from posts on our Facebook page in June 2016.]

What is a deposition?

A deposition is sworn testimony, taken before a court reporter. It is very similar to testimony in court in that it is a live question-and-answer session involving lawyers and a witness. It is different in that there is not a judge in the room, and usually the pace is a little more relaxed. Still, it is usually a fairly stressful process for the witness (also referred to as the “deponent”).

Why do lawyers take depositions? There are generally three reasons:

  1. To find out what the witness knows (including stuff that might not be directly relevant, or even ultimately admissible).
  2. To find out how the witness will testify in court (is she credible? nervous? polished?).
  3. To try and intimidate or harass the witness.

Most lawyers prefer to take depositions relatively late in the game. Generally this is because depositions are a one-shot deal, and so the questioning lawyer will want the benefit of having responses to as much of his other discovery requests as possible.

Some lawyers like to take depositions early, believing it will throw off the other lawyer and/or the witness. Depending on the important issues in the case, there may be relatively little in the way of documentation needed ahead of time.

Usually party-witnesses are deposed at their own lawyers’ offices. Sometimes depositions are taken at the courthouse or at some other convenient location. Even in contentious cases, things like the location and scheduling of depositions are generally agreed by counsel ahead of time, out of professional courtesy, if nothing else.

Here are a few “rules” that you should keep in mind as the witness headed into your own deposition.

Rule #1 is so simple it’s practically cliche – TELL THE TRUTH, ALWAYS. We all know you have bad facts in your case. That’s because every case has bad facts on both sides. It’s okay. Your lawyer knows how to minimize the damage of bad facts. What he can’t do for you, though, is make up for you getting caught in a lie. There is simply no more damaging thing that can happen to you in your case.

Deposition Rule #2 – RELAX.

Get in the habit of taking a breath after every single question. That will do three things. First, you have a chance to be sure you understood the question. Second, if the question is objectionable, you give your lawyer a chance to object. And third, you keep the record clean by not interrupting the questioning lawyer.

Deposition Rule #3 – UNDERSTAND THE QUESTION.

I think witnesses start to feel stupid at some point in the deposition. I can’t think of any other reason why people try to answer questions they don’t understand – but it happens all the time. There is no shame in making the lawyer, who has been well-trained in the art of asking questions, reformulate his question into something intelligible. And if he refuses to do so, take some satisfaction in knowing you beat the lawyer at his own game of “hide the ball”, by refusing to take his bait.

Deposition Rule #4 – YOU’RE THE STAR!

This one usually catches people by surprise. It’s obvious but it usually needs to be pointed out, but absolutely nothing can happen in the deposition without you, and the questioning lawyer has to work with that inescapable fact. The answers all come from you. If you need a break, ask for a break (just make sure you answer the last question first). If you don’t know the answer, just say that – don’t guess. If you don’t understand the question, make him repeat or explain it. You are in total control, if you want to be.

Age-by-Age Guide to What Children Understand About Divorce

I ran across a great resource for divorcing parents trying to figure out what their kids do and don’t understand about divorce. Check it out here.

Kids older than 11 probably understand just about everything about what’s going on, and likely know a whole lot more than you even appreciate. The best thing you can do for them is make sure they have a relationship with a counselor or other trained person who can be a “sounding board” for them as they work through their emotions surrounding the divorce process.

Special Offer for Support Groups


Last week, we spent a lot of time talking about support groups and other ways you can find support as you move through your divorce and post-divorce journey. In keeping with that theme, I would like you to connect me with your support group leader. From now through July 31, I will ship five copies of “Your Post-Divorce Compass” to your support group leader for $99.00 – I’ll even cover shipping. All I ask of you is that you connect me with that leader directly, either via Facebook or via email to info@postdivorcecompass.com.

Thank you!

Support Groups

I was looking for images to go with a series of posts on support groups, and I found this one from Bakersfield (California) Heart Hospital:

I love this image because it captures what Your Post-Divorce Compass is all about – teamwork and process, and how the two can work for you to heal you and let you move on with your life.

Support groups are a great way to get the emotional support you almost certainly need to be able to move forward with your life in a healthy way. Thanks to Google, finding a support group near you is as easy as searching for “divorce support group [ZIP CODE]” and clicking around a little bit. If you haven’t done it, I urge you to do so today.

Pro Se Litigation – Leveling the Playing Field

Whether you are pro se or are able to hire a lawyer, the degree to which you are able to achieve success in your divorce case depends entirely on your plan. Decide early on what issues are important to you, and figure out what you need to give up or show in order to have those issues decided in your favor. Be realistic in setting your expectations, but also be clear and concise about what you want. Lawyers often gain a reputation of being able to “game the system” because they know various tricks that non-lawyers don’t know, but often it comes down to having a clearer picture of what is important to his/her client and being able to effectively argue for those things. If you take the time to plan as thoroughly as you can, and you conduct yourself in a calm and respectful manner and keep a positive attitude, you will probably surprise yourself at how effective you really can be.

Pro Se Litigation – Coaching from Lawyers

If you don’t feel like you can afford a lawyer, you’re almost certainly not alone. But you should consider setting some money aside to get some coaching from a lawyer. An initial consultation can be very worthwhile, just to help you start planning your divorce. You should also consider buying an hour-long “coaching session” before you go to court for a hearing, so s/he can walk you through how to present your position most effectively to the judge who will be presiding over the hearing. And if your case does have to go to trial, lawyers can be good at teaching basic trial skills so you won’t be caught completely flat-footed in the courtroom.

Note there are often resources like these available at low or no cost. Law libraries often have “self help” centers that are staffed by lawyers. Local bar associations also sometimes have legal clinics “staffed” by volunteer lawyers. And there are legal aid options available in some cases, especially in major urban environments.

Pro Se Litigation – Using the Internet

This week we’re talking about resources available to you if you have to represent yourself in your divorce case. You’d be amazed what you can learn from doing internet searches. Google whatever question you might have about how to handle some aspect of your case, and you’ll probably be pointed in the right direction. The internet is also very useful in finding sample forms and letters for you to use for particular purposes, from pleadings and motions, to discovery requests, and even settlement demands.

One word of caution when relying on the internet for forms and such is to make sure whatever you’re doing is appropriate in your particular jurisdiction. I would recommend you start with some sort of primer or other overview of the law applicable in your specific state. Nolo.com and Findlaw.com are good examples of resources for this kind of general information.

Pro Se Litigation – Libraries

This week we’re talking about pro se litigation – i.e., representing yourself. Yesterday I suggested you can minimize disadvantages you may have by not having a lawyer if you believe in yourself. Today we’re going to talk a little more about what resources you do have.

Probably the first thing you should do is learn your way around the law library in your county or district. It is usually located at the courthouse. If you happen to live near a law school, the school will often have its own law library, though the courthouse library will generally have information more specific to your jurisdiction. Don’t underestimate your regular public library, either. And of course, no matter which kind of library you use, don’t be afraid to ask for help from the librarian to find what you need – that’s what s/he is there for.

Pro Se Litigation – Attitude is Important

What if you can’t afford an attorney and have to represent yourself (“pro se”)? Are you completely out of luck?

Odds are, you’re not alone. A quick Google search for “statistics pro se divorces” shows staggering rates of pro se representation in divorce and other family law cases, often more than 50% in many jurisdictions. The good news is, given the age we live in, there are many more resources available to pro se litigants than there used to be.

Cliched though it may sound, the one indispensable thing you have to have is a positive attitude. If you believe you can effectively present your case, you can learn to do so. Keep in mind, in all likelihood your case will end in a settlement, either at the mediation table or otherwise – not at trial. If your spouse has a lawyer and you do not, in the courtroom you are at a disadvantage, but outside the courtroom you are on more level footing with your spouse than you think.

Property Division in Lieu of Alimony

[Ed: Originally published on Facebook.]

Yesterday we talked about the interplay of alimony and property division. Often it can make sense to pay more alimony in exchange for a more favorable property division. Note the reverse can be true, in a sense – the court can adjust its property division to make up for the fact it may not be able to award alimony.

Alimony is typically not available to a spouse who is guilty of a fault issue – for example, adultery. In other words, if a spouse has an extramarital affair, and that is the cause of the divorce, then that spouse cannot be awarded alimony in most cases.

Notwithstanding what the parties could get at trial, keep in mind that divorcing spouses could almost always agree to do whatever they want. So even where a spouse cannot get alimony at trial, the other spouse may be better off agreeing to pay alimony anyway. Every case is different, but the moral of the story is this – when considering property issues, don’t forget about alimony as an option, and think about making alimony and property division work together to achieve a good outcome for both parties.

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