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.

Your First Meeting: What to Bring with You

[Ed: Originally published on Facebook.]

This week we’ve been talking about your first meeting with a lawyer. Yesterday we talked about how to act and what to expect at your first meeting. Today I want to give you a few ideas about what to bring with you:

  • Financial information is usually helpful – for example, paystubs (yours and your spouse’s); tax returns; retirement and bank account statements; and recent statements for your mortgage, car notes, credit cards, and any other debts.
  • If there is a “fault issue” you want to discuss (e.g., family violence, or infidelity), documentation such as police reports and correspondence will be helpful.
  • If you and your spouse have already discussed divorce and/or possible settlement options, any of that documentation will be helpful. This can include anything from a spreadsheet showing a proposed asset division, to notes regarding a possible custody schedule, to pleadings in a divorce case that you or your spouse may have already filed.

This list could, of course, be much, much longer. The attorney will likely have a list of things he wants you to bring to the first meeting that he can send you when you first call. If he does not suggest it himself, ask him if he can email you a list.

Your First Meeting with Your Divorce Lawyer

[Ed: Originally published on Facebook.]

Yesterday, we talked about how to find a good lawyer. Today, I want to give you a couple of tips about how to handle the first meeting.

First of all, never forget that you are the “star of the show”. Meeting with a lawyer is no time to be modest – tell him your whole story, at whatever pace you feel comfortable. A good lawyer will be taking notes, listening a lot more than speaking, and only interrupting you to ask questions that help him sort out the story. If the lawyer has not scheduled a long enough meeting, schedule another meeting if you need it. You will learn later to be more efficient with the lawyer’s time, but early on, it’s worth it in the long run to take your time and make sure you tell your whole story. Don’t be shy, don’t lie, and don’t leave anything out.

Once you’ve done that, the lawyer should be able to explain the process to you in whatever detail you need. If you have questions, ask them, and don’t be shy. A good lawyer won’t judge you or get impatient and will want to be sure you have all the information you need. You can take notes if you want, and your lawyer may have some printed information for you if you need it. You can also ask him to email you a “recap” of your meeting.

You may be wondering if you need to bring anything to your first meeting. We’ll talk more about that tomorrow.

Finding a Good Lawyer

[Ed: Originally published on Facebook.]

Yesterday, I encouraged you to talk with a lawyer. But where do you find a good one?

Thanks to the internet, finding a divorce lawyer near you is remarkably simple, and checking his qualifications is just as easy. Unfortunately, however, it’s almost TOO easy – a Google search in a moderately populated area will probably yield hundreds, if not thousands, of results. How do you sort through them all?

Websites that provide rankings and reviews, such as www.avvo.com, are helpful, but my recommendation is that you ask people you trust for a referral. I know it can be a little embarrassing to tell people you’re about to go through a divorce, but in my experience there really is no substitute for a referral from someone who has already been through the same process in your area. If you can’t stand the thought of talking this over with close friends, maybe you can ask coworkers, neighbors, or people in other social groups. You can also call local bar associations and ask them for referrals.

You may be nervous, and that’s okay. Tomorrow, we’ll talk about the first meeting with a lawyer you are considering hiring.

Should I Talk to a Lawyer?

[Ed: Originally published on Facebook.]

Although “Your Post-Divorce Compass” is about what you need to do after your divorce is final, many people come to us with questions about the process itself. This week, we’re going to take a look at the very beginning of that process.

First things first – should you even bother talking to a lawyer? My obvious answer is YES! You owe it to yourself to talk with an expert, especially since this is likely (hopefully!) the most important event of your adult life, and there are so many traps for the unwary. I know it can be unsettling to spill your guts to a complete stranger, but a good attorney will do everything he can to make you feel comfortable every step of the way. Keep in mind, even if you don’t hire the attorney, everything you discuss is covered by the attorney-client privilege, so it will stay between the two of you. And most attorneys will offer you a consultation for free or a reduced rate.

PLEASE see a lawyer as early in the process as possible. Tomorrow, I’ll give you some tips on how to find a good lawyer.