If your case is trial-bound, by now you should have heard of the term “deposition.” (If you have not, then, please, call your attorney immediately and ask why not.) A deposition is a formal question-and-answer session akin to a cross-examination at trial. It is a time for your opponent to learn what information you have about the case. It is a time to testy particular questions before trial. It is a time to determine how you will testify, what you will testify to, and how your wife’s attorney’s questions affect you. For example, if the attorney asks, “Have you had an affair?” and you lurch across the table screaming, “Why does that matter?!?!” you had better expect that attorney to ask that very question at trial, hoping to put your angry temper on display for judge and jury.
Depositions are important tools, and for many reasons. First, your deposition testimony enables the opposing attorney to find out your version of events. Second, by taking your deposition, the opposing attorney may hope to catch you in errors or falsehoods, which cam be shown at your trial to raise an inference that you are not a truthful person, thereby discrediting your testimony. Third, your deposition testimony, under oath, can lead to settlement discussions, if you are truthful in your answers and thereby show your wife, for example, that you really do not have that million dollar bank account in Switzerland or really do want to spend time with your children because they are your children, not to reduce your support amount. As a final example, your wife’s deposition testimony can help you narrow the issues or point you in the direction for additional research before trial.
Or, depositions can be your death knell. It may be, and usually is, tempting to lie. One little white lie over a loan to your brother a few years ago, for example, could barely be proven untrue. If only your brother knows about it, and he’s not talking, who’s the wiser? Probably no one. The problem is, the thrill of “getting away with” one lie will make you feel invincible. Lying becomes easy, and, before you know it, you’ve told a grand lie that someone can prove. And, once proven, that lie destroys your credibility and could send you to jail for perjury.
This it will not happen to you? Think again. Parties, and judges, are crafty. A lie about something as simple as a Facebook username cost one client $5,000 in attorney fees payable to his wife’s attorney immediately. He denied the name was his -- and when the judge searched Facebook from the courtroom, during the hearing, in a black robe and holding a gavel, his eyes grew wide with terror when the name corresponded to “someone” living in his city, with his birthdate, and using a profile picture of his truck. Your judge has broad discretion to punish either party for hiding information. That includes the power to order you to pay attorney fees. That includes the power to prohibit you from presenting evidence at trial that would have been disclosed, had you been truthful. That includes the power to jail you for perjury. And so forth.
So, what you do at the deposition can help or hurt you significantly, depending on your attitude, truthfulness and appearance. Consider the following tips as you prepare:
1. Dress and act as if you were going to court. Be clean, neat and businesslike.
2. Treat all people at the deposition with respect.
3. Avoid being overly friendly, losing your temper, joking or arguing.
4. Take your time before answering a question. Give yourself ample time to understand the question so that you can give a proper and truthful answer.
5. Instead of shaking your head or shrugging your shoulders, make sure you answer all questions aloud and clearly so the court reporter can record your answers.
6. Answer a question directly and as concisely as possible. There is no need to volunteer any more information than requested.
7. If you do not understand a question, say so. Never guess what a question means or where the opposing attorney is “trying to go” with a question.
8. When answering a question, stick to the facts and testify only to what you personally know. Never guess what you think the answer is or should be.
9. If you do not know the answer to a question, say so. You are not expected to have an answer to every question or to know all the facts yourself.
10. Always tell the truth, even if you feel the answer is embarrassing or will harm your case. If you anticipate such questions, tell your attorney beforehand.
Be sure to address any questions, comments or concerns about your deposition with your attorney. Your attorney works for you and, while he or she cannot “coach” you with canned answers, should be able to help you prepare mentally, if needed, and avoid needless worrying --
-- and the tempting little white lie that a search on Facebook can prove.