In a lawsuit like a divorce or a child custody case, parties have a right to conduct discovery before the case goes to trial. This allows both sides to gather the facts each wants to present to the court. Think of discovery as an investigation, which occurs primarily in three ways:
- Requests for documentation, see: Divorce Planning: What Documents Should You Have Ready ;
- Interrogatories, which are written questions posed by the other party.
- Depositions, which are oral responses to questions asked by the other party.
What is a Deposition?
A deposition is a Q&A session between a witness and an attorney. The deposition happens outside of court, usually in the office of the attorney conducting it. All statements are made under oath, recorded and transcribed by a court reporter, and the party’s statements may be entered into the record at the trial as testimony.
If the other side’s attorney wants to depose you, you will receive a Notice of Deposition stating the date, time, and place. Your attorney will be present to represent you and to make objections. By law, a deposition can last a maximum of seven hours unless the court approves a request for more time.
The most important thing to remember is that information gathered in a deposition “locks you in” to your answer. The other side will be looking for inconsistencies and other ways to discredit your testimony.
Conducting Yourself at a Deposition
A family law attorney can prepare you before your deposition. Your lawyer will have sense of the issues pertinent to your case, and will instruct you about how to respond in a deposition.
In any case, there are a few broad rules attorneys instill into their clients before they give a deposition.
- Tell the truth – You never want to mislead a court. If that happens, any testimony you give will be discredited and the court usually will decide against you as a result.
- Listen to the call of the question – Listen carefully to the other attorney and focus on what he or she is asking you. This can only be one of eight things—who, what, where, why, when, and how, or yes or no. Speak only to what you are asked.
- Don’t try to make your case in the deposition – Emotions can run hot in family law matters, and sometimes the deponent wrongfully believes this is their opportunity to convince everyone in the room that they are the one taking the high road.
Remember: Less is More at a Deposition
The bottom line is, the less you give the other side, the less they can use against you. Remember, the other side is trying to take money from you. Don't volunteer information that is going to help the other side.
There’s an old saying: When somebody asks you for the time, don’t tell them how the watch is made. Keep this in mind when you’re thinking about how to prepare for a deposition in a divorce or custody case.
About the Author
Jim Parke has 41 years of experience practicing law in California. He is an esteemed expert in all areas of family law and is recognized as among the elite attorneys practicing in the state.
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