I am an attorney that practices law in Middle Tennessee. www.jamesphillipslaw.com.
In a divorce, one of the tools for discovery is the use of depositions. When a lawyer deposes a witness, he or she is calling the witness to testify in the presence of a court reporter. The witness is sworn in and is required to answer truthfully under oath. The testimony given under oath can later be transcribed by the court reporter and turned into a written, word for word, document that can be used to later impeach the witness or for entry as evidence. If the case goes to trial and your testimony at trial differs from your deposition testimony, the deposition can be used by opposing counsel to cross-examine you. Any part of your deposition or your spouse’s deposition can be read by opposing counsel at the final hearing. Careful what you say. The court reporter is generally pretty pricey and can be a major expense depending on how long the deposition runs.
Many lawyers feel that in a simple divorce a deposition is too costly for its effectiveness. Many times the lawyer can get most of the same information from the use of interrogatories or by calling other witnesses to impeach the opposing party. When the client does not have a lot of money for attorney fees or for the court reporter, the lawyer may want to forego deposing the opposing party.
Generally, the deposition will be fairly anti-climactic. For the most part, the lawyer will be trying to get the opposing party to lock in their answer. This prevents some lying on the stand later at trial. This is one of the main reasons that I personally like to do depositions in most of my cases. The deposition allows me to get a good look at the others sides position for trial. Although, obviously, my own deposition questions will key the other side to my defenses, themes and strategies. For me, the benefits will outweigh most of the negatives.
The more issues in a divorce, the more likely that you will need to have a deposition.
The deposition will start with the questioning lawyer running through a set of questions to determining the deposed parties ability to answer questions. These will be standard questions related to truthfulness and ability to answer truthfully.
Then, the meat of the deposition will begin. Here are some helpful hints to remember prior to the deposition.
1. Review your case with your attorney prior to the deposition. Review any case notes you have.
2. While being deposed, don’t worry if your attorney doesn’t object very much. This is discovery and most of what is asked will be relevant and you will have to answer the questions.
3. After the deposition, review the transcript and make corrections.
4. Don’t be disappointed if your attorney does not ask questions. The deposition is for the other side. Remember, they want to catch you in a lie, nail down the facts and stick you to your statements.
5. Your deposition will also help both sides for settlement purposes.
6. Remember if your facts or story changes later at trial, the other side is going to use the deposition against you.
7. Tell the truth
8. Give straightforward answers.
9. Don’t evaluate your answers for trial.
10. Listen carefully and answer carefully.
11. Take your time, remember you can tell your attorney you need a break or you can stop the deposition to talk to your attorney
12. Speak deliberately and clearly for the record
13. Don’t guess and keep your testimony limited
14. Do not joke with the other attorney, lose your temper or spar with the other attorney
15. Dress appropriately in casual business dress.
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