It is natural to feel anxious about having your deposition taken in your divorce case. You may feel like your spouse’s lawyer is going to attempt to trap you into saying something that will hurt your case, or word things in a way that you answer the question incorrectly. However, understanding the deposition process can help ease some of the anxiety.

A deposition is when you are asked a series of questions before a court reporter by the opposing attorney. The questions and your answers will be typed by the court reporter into a transcript that you will later be asked to read and sign. The purpose of the deposition is to gather information, assess you as a witness, and to commit you to certain positions in advance of trial. However, it is also an opportunity for you to assess the questioning techniques of your spouse’s lawyer, determine the questions that you will likely be asked at trial, and a chance for you to practice what it will be like at the time of trial.

The following suggestions will help you to give a successful deposition:

  • Prepare for your deposition by reviewing and providing necessary documents and talking with your lawyer.
  • Get a good night’s sleep the night before.
  • Eat something before you arrive since depositions can go for several hours.
  • Arrive early for your deposition so that you have time to get comfortable with your surroundings.
  • Relax. You are going to be asked questions about matters you know about. Your deposition is likely to begin with routine matters such as your education and work history.

At the deposition, your lawyer will be there to protect you from answering unfair questions, or questions that may call for information protected by the attorney-client privilege. In answering questions, keep the following items in mind.

  • Tell the truth. The first thing the court reporter will do is to swear you in, just like the bailiff will do at the time of trial or an evidentiary hearing. Your testimony is going to have the same force and effect that it does in a court of law. Remember the best answer is not one that you guess at, or infer from the question. The best answer is just the truth.
  • Stay calm. Your spouse’s lawyer will be judging your credibility and demeanor. Do not argue with the attorneys.
  • Take your time. There is no need to rush your answer. Wait until the question has been asked and then answer the question asked. This serves several purposes. First, it insures that you have heard the complete question and understand what is being asked. Second, it allows the court reporter to take down the testimony without having to stop and ask the question and answer to be repeated.
  • Listen carefully to the entire question. Do not try to anticipate questions or start thinking about your answer before the attorney has finished asking the question. You may not be answering the question that is being asked. In addition, the court reporter can only take down one person speaking at a time.
  • Enunciate clearly and avoid words such as “un-huh” since it is difficult to determine what that means. “Uh-huh” is difficult for the court reporter to distinguish from “unh-unh” and may result in inaccuracies in the transcript.
  • Avoid shaking or nodding your head in response to the question because the court reporter can only take down audible responses, not gestures.
  • Answer the question directly. If the question calls only for “yes” or “no,” provide such an answer.
  • Do not volunteer information. Answer only what the question specifically requests. If the lawyer wants to elicit more information, he or she will do so in following questions.
  • Don’t guess, exaggerate or speculate. Give the best short, truthful answer possible. If your answer is an estimate or approximation, say so. Do not let an attorney pin you down to anything you are not sure about. For example, if you cannot remember the number of times an event occurred, say that. If the attorney asks you if it was more than ten times, answer only if you can. If you can provide a range (more than ten but less than twenty) with reasonable certainty, you may do so.
  • Answer questions only with what you personally know, saw, heard, or did unless the question asks you otherwise.
  • If you do not know or cannot remember the answer, say so. That is an adequate answer.
  • If an attorney mischaracterizes something you said earlier, say so.
  • Answer all questions with words, rather than gestures or sounds.
  • If an objection is made, stop answering the question and wait for further instructions. There are only a limited number of objections that can stop you from answering a question. The most important one is if the question calls for information that can only be answered by divulging something your attorney told you. Most objections will just be questions your lawyer is making as to the form of the question. Your lawyer is making the objection to preserve the right to object at the time of trial. However, you will still be instructed to answer the question. If you need a break at any point in the deposition, you have the right to request one. You can talk to your attorney during such a break.

Remember that the purpose of your deposition is to support a good outcome in your case. Completing it will help your case to move forward.

About the Author:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.