Edward R. Weinstein, Esq.

When Getting Divorced, What Should I Expect During My Deposition?

A deposition is the testimony of a party or witness under oath. This is an essential aspect of discovery during a complicated divorce here in the State of New Jersey. Often a deposition is taken in an attorney’s office. At this time, your divorce lawyer will be with you along with your spouse and his attorney. A court reporter will administer the oath and record the questions and answers. A judge will not be present but may read or hear your answers later. During your deposition, the opposing attorney will ask the questions. Your lawyer has the right to ask questions, but may elect not to.

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After the deposition, the court reporter will type the questions and answers and counsel for both parties will receive copies of the transcript; your attorney will, of course, send you a copy for your review. If your divorce leads to a trial, you will review this transcript numerous times beforehand.

New Jersey’s Rules of Court require the court reporter to submit a typed copy of your testimony for your review so that you can make corrections. You will be asked at the end of the deposition whether you waive that right. If you waive that right, then the transcript will remain as typed. Usually your lawyer will announce whether or not you will be waiving your right to review, and sign the deposition. If, however, you are in doubt, do not waive that right.

When the court reporter makes the transcript available to you, you may make changes in form or substance and must provide your reasons for making changes.

For example, from your deposition, your spouse’s attorney may get the names of witnesses who may assist in the investigation and preparation for the final hearing. If the facts to which you testify at the final hearing differ from the facts you give at the deposition, your spouse’s attorney can use that difference to undermine or impeach the believability of your testimony at the final hearing.

Do not be surprised if your lawyer does not object to questions that seem to be out of line. If you are questioned on any subject that is not proper, your counsel will object to the question. If your attorney objects to the question and instruct you not to answer it, then you should refuse to answer the question. Please do not refuse to answer any question unless your lawyer instructs you to do so.

Rarely will your own attorney ask you questions during your deposition.   The reason for this is that your lawyer will want an opportunity to discuss your testimony with you, so they will save questions for the final hearing. If, however, it is advantageous to ask some leading questions, your answers should be very brief. Don’t be disappointed you are not asked any questions.

Your spouse’s lawyer is taking your deposition for at least three reasons:

  1. To find out what facts you have in your actual knowledge and possession regarding the issues in the case. In other words, to determine what your story is now, not what it is going to be at trial.
  1. To pin you down to a specific story so that you will have to tell the same story at trial.
  1. To catch you in a lie to show at trial that you are not a truthful person and, therefore, that your testimony should not be believed, particularly on crucial points.

Your deposition also will assist the other side in evaluating this case for settlement purposes. You should answer the questions in an honest and straightforward manner so that adversary counsel will be impressed with the potential impact your honest and sincere testimony will have on a judge at trial.

If your case goes to final hearing and your testimony at trial differs from your deposition testimony, this deposition can be used by your spouse’s attorney to cross-examine you. Any part of your deposition or your spouse’s deposition can be read by opposing counsel at the final hearing. So be careful about everything you say and only answer the question that you were specifically asked.

Your attorney will review your case before your deposition, but it is helpful for you to refresh your recollection before you meet with me. It is extremely important that you have everything in mind about the case at the time of your deposition. Prior to the deposition, refresh your recollection by reading any notes you have made about the case and all the pleadings and correspondence provided by your lawyer. Do not bring any of these items or other documents to the deposition unless you have been advised to. Don’t try to memorize any statements you have given or answers to any questions. Focus on telling the truth and providing information you have readily available. You are not required to remember everything; if you do not remember, just say so.

During your deposition, adversary counsel can ask you questions that are admissible in Court under the Rules of Evidence. In addition, she can ask questions that may seem to be none of her business and would not be admissible in a New Jersey Family Court. The Courts allow “discovery” in these depositions, and you may be asked for “hearsay” (something you heard another person say).

We know that you would not deliberately lie, but it is important that you not be trapped into something that is not true. For this reason, listen to each question carefully and be sure that you understand it before answering. If you do not understand the question, ask adversary counsel to repeat the question or rephrase it so that you understand it. When you understand the question, answer it honestly and in a straightforward manner. If you don’t know the answer, say that you don’t know or don’t recall. Do not let adversary counsel trap you into answering question after question with “I don’t know”. No one can remember every minute detail; however, you will remember the important things and must give honest and complete answers to questions on these points.

Please review all of the following points, in addition to all of your own Certifications in this case:

  1. Listen to the question. Do not answer or interrupt the questioner until you hear the entire question.
  1. Be sure to hear the question. If the lawyer lowers her voice or a noise in the room prevents you from hearing every word, ask to have that particular question repeated.
  1. Understand the question. Before you attempt to give an answer, make sure that you understand the question. You can’t possibly give a truthful and accurate answer unless you know what is being asked. If you don’t understand, ask adversary counsel to repeat the question. Adversary counsel will probably ask the court reporter to read the question aloud. Keep a sharp lookout for questions with a double meaning and questions that assume you have testified to a fact when you have not. Make sure the question is exact. If adversary Counsel asks “What about the “hours?” ask her to explain what he/she means. If you are not certain abut the meaning of a word, do not be embarrassed. Ask adversary counsel to explain it. Do not attempt to ask the adversary counsel about the question nor help adversary counsel by saying “if you mean this, then my answer would be…”

If your case goes to final hearing and your testimony at trial differs from your deposition testimony, this deposition can be used by adversary counsel to cross-examine you. Any part of your deposition or your spouse’s deposition can be read by adversary counsel at the final hearing. So be careful about everything you say.

  1. Take your time. Do not hurry. Give each question the thought it requires and formulate your answers carefully. Do not give a snap answer without thinking. Answer clearly and directly.
  1. Do not volunteer information or facts not requested. Listen carefully to each question and answer only what is asked. Do not ramble, elaborate, or speculate. If adversary counsel wants an explanation, she will ask for one. If a further explanation is required, we will ask when it comes time for cross-examination.
  1. Don’t worry about silence. The other lawyer may be thinking of the next questions. Do not be tempted to fill the silence with words. Keep quiet and wait.
  1. Repetitious questions. You may hear the same question more than once. If your original answer was accurate, stick to it-even if you are challenged. Do not let adversary counsel shake your confidence.
  1. Speak slowly and clearly. Do not nod or shake your head in response to a question. Answer audibly. The court reporter must hear your answer in order to record it. If you point or motion, try to describe what you are pointing to or indicating. It is up to counsel to describe for the record what you are pointing to or indicating.
  1. Beware of compound questions. Answer only one question at a time. If you are confused by complicated or multi-part questions, ask to have it repeated and clarified.
  1. Beware of questions that assume the facts. Do not assume facts unless directed to make assumptions. Make sure that your assumptions are stated clearly, for example, “At your direction, I am assuming. . .”
  1. Beware of questions involving distance and time. If you estimate something, make sure that everyone understands that it is your best effort to answer the question accurately. Think clearly about distances and intervals of time. Be sure your estimates are reasonable.
  1. If counsel insists on an estimate. If you respond to a question with an estimate, make it clear that you will attempt to make a more accurate and factual response at a later time.
  1. Never attempt to explain or justify your answer. Give the facts, as you know them, from personal knowledge. Do not apologize or attempt to justify those facts, especially those answers you believe you should have known but cannot recall. Any attempt to do so would make it appear that you doubt the accuracy or authenticity of your own testimony.
  1. Give only the information that is readily available to you. If you know an answer to a question, answer it. If you do not know certain information, do not try to answer. Do not promise to get information that you do not have at hand unless advised by your counsel to do so.
  1. Do not search for documents. Do not reach into your pocket for a social security card or other document unless I request it. The purpose of a discovery deposition is to elicit the facts that you know, not to produce documents. If Adversary Counsel is interested in obtaining documents from you, there are other legal procedures through which to obtain them.
  1. Never joke or make wisecracks in a deposition. Be serious. Humor is not apparent on a transcript and may make you look crude or cavalier about the truth.
  1. After the deposition, do not chat with your spouse or Adversary Counsel. Sometimes adversary counsel will be friendly in an effort to get you to put your “foot in your mouth”. In a lawsuit, as in all other matters, honesty is the best policy. A lie may lose the case. Telling the truth means more than refraining from telling a deliberate falsehood. It requires that a witness testify accurately about what he or she knows. If you tell the truth and tell it accurately, nobody can cross you up.
  1. Do not try to anticipate whether your response will help or hinder your case. Answer each question truthfully. As Mark Twain once said, If you tell the truth, you don’t have to remember anything.”
  1. Do not fence or argue with Adversary Counsel. Adversary counsel has a right to question you. Do not respond with smart talk or give evasive answers. Don’t answer a question with a question unless the question you are asked is not clear.
  1. Do not lose your temper. Remain calm and controlled. No matter how hard you are pressed, maintain your composure. Lose your temper and you may lose the case. Your explosiveness may play right into the hands of the other side.
  1. If asked… Adversary counsel may ask if you have talked to your lawyer. Admit to it freely. I may object in such a scenario because of attorney-client privilege. You are expected to have talked with your lawyer. If asked whether your lawyer told you what to say, respond, “Certainly. My lawyer told me to tell the truth!”
  1. Don’t be afraid to answer under oath. Don’t let adversary counsel unnerve you by asking whether you are willing to swear to what you know. If you were there and know what happened or didn’t happen, don’t hesitate to “swear” to it. You were “sworn” to tell the truth when you began the deposition.
  1. Do not guess. If you know the answer, say so and answer completely.
  1. Do not attempt to outwit counsel. If adversary counsel is asking improper questions or harassing you, it may be to provoke you. Don’t take the bait.
  1. If your counsel makes an objection. Do not answer any question until advised that you may now do so. After an objection, your attorney will instruct you on how to answer the question. Think before you answer. Do not object to questions yourself, I will object if necessary.
  1. Limit your testimony. Testify only to facts within your knowledge and do not speculate about anything unless specifically asked to do so.
  1. Be straightforward in your answers. Respond to adversary counsel’s questions in an attentive and polite manner. Don’t go off on tangents or give wishy-washy answers, like “possibly, probably, or maybe.” Be assertive, confident and precise.

Please follow our recommendations at the deposition. Do not watchvfor some “signal” as to how to answer. You may be asked to sign an authorization to allow Adversary Counsel an inspection of papers or to furnish other information. Respond by saying that you will follow your lawyer’s recommendation. Don’t worry about remembering these questions; if you attempt to respond on your own, we will interrupt your answer and ask if you will follow our recommendations. You may simply say “yes”.

  1. Do not confuse “I don’t remember” with “I don’t know.”
  1. If you need a break. Do not hesitate to request a recess of the proceedings if you are tired or you need to use the restroom or to make an important telephone call.
  1. Maintain your composure. Try not to become upset over the length or detail of the questions. Frequently such questions will provide insight into the approach Adversary Counsel plans to use at trial.
  1. Correct and clarify. If your answer was wrong, correct it immediately or as soon as you realize you made an error
  1. Beware of questions that use absolutes like “never” and “always”. Do not answer questions with “never” and “always” unless you are absolutely sure. Be careful when answering these questions. Answer the question first, then add explanations: “Yes, except that. . .” or “No, but . . .”
  1. Do not exaggerate.
  1. Don’t box yourself in. Don’t say, “that’s the whole conversation” or “nothing else happened”. Say instead, “that’s all I recall” or “that’s all I remember happening”. It may be that after more thought or another question, you will remember something important.
  1. Off-the-record statements. Frequently lawyers make an “off-the-record statement”. That means that the court reporter does not write down what is being said. Be careful, however. This can be disarming. When the deposition resumes “on the record”, the lawyer can question you about something that you said off the record.
  1. Documents. If you are shown documents, take your time to read them carefully and thoroughly. Look at the date, the author, the signature, the addressee, and to whom copies were sent.

Please review this letter several times before having your deposition taken. Make a list of anything that is unclear to you in these instructions and/or of any concerns you have about responding to certain lines of inquiry.

Be certain to refresh your recollection before our meeting by reading your notes about your case as well as all copies of documents, particularly your Certifications, previously provided by me to you.

If you or a loved one faces a hotly-contested divorce, please do not hesitate to contact my office to learn more about how we may help you. Thank you.