Morales Law is a Santa Barbara Divorce Law Firm that believes in the power of discovery and depositions. A good deposition can be the critical component to winning your case or losing your case. This article is intended to help you prepare for when the opposing attorney requests to take your deposition in a Santa Barbara Family Law case.
What Is A Deposition
A deposition is where the opposing attorney will ask you questions under oath. The oath has the same force and effect, to tell the truth, as if you were testifying at trial. It is typically conducted at an attorney’s office or via zoom. The opposing attorney will ask you questions for up to seven hours. Your attorney will be present with you at the deposition to object to improper questions and ensure your protection at the deposition. There will be a court reporter who records everything that is said. The court reporter will prepare a deposition transcript, with everything said at the deposition, that will be used at trial to show the judge if you change any of your testimony.
What Is The Purpose of A Deposition?
A deposition is a discovery tool used to “lock in” testimony by asking similar questions that will be asked at the time of trial. The purpose of the deposition is for the opposing attorney/party to know what you are going to tell the judge about your case, so they can adequately strategize for trial. If you answer a question differently at your deposition than at the time of trial, the opposing attorney will say you are being untruthful in your responses. That is why it is important to give your best testimony at the deposition. To the extent possible, the testimony given during the deposition should match the testimony given at the time of trial to avoid the appearance of changing testimony.
How Do I Prepare For My Deposition?
You can prepare for your deposition by doing the following:
- Review any documents that you have submitted to the court or the opposing party before your deposition. That includes financial records such as your tax returns, income and expense declarations, schedules of assets and debts and any business records that you have provided to the opposing party or the court. It is smart to carefully go through your documents and review what you have listed to ensure your testimony is consistent. You may also want to review your bank statements and business records and flag large transfers to ensure that you have an explanation for the transactions. You will be asked questions directly from certain documents, so the better you know your documents, the better you will perform at your deposition.
- Discuss With Your Lawyer Strategy. You will want a consultation with your lawyer regarding your deposition. Your lawyer will advise you what topics will be discussed, how to respond to certain questions, and how to ensure your answers are adequately confirmed by the evidence. A strategy session with your lawyer is critical.
Tips On How To Conduct Yourself At A Deposition
At your deposition, expect the following:
- The lawyer will ask you if you have ever had your deposition taken before. If you say no, get ready for about 15 minutes’ worth of mindless talking about depositions work.
- The lawyer will tell you to not guess at any questions you do not know the answers to. The lawyer will tell you that he is entitled to a reasonable estimate. 9 out of 10 times, the lawyer will give us this example, “If I ask you how long the desk is that your sitting in front of right now, you could look at it and based on your current perceptions you could estimate that it is 9 or 10 feet long. That is an estimate. If I asked you how long the deposition is in my office, well you have never been to my office, so if you were tell me how long my desk is, that would be a guess. Do you understand the difference between a guess and an estimate?”
- Note- It is true that you should not guess. It is perfectly fine to say I don’t know. If you are unsure about a question, i.e. a date, time, amount, you should say I am not sure, I do not know, or if you showed me the document (i.e. bank statement) I could confirm the date and amount of the transaction. Guessing when you do not know the answer is bad for your case. The attorney can then comment at trial about how you changed your testimony.
- If you are estimating, tell the lawyer you are estimating and that you don’t know for sure.
- The lawyer will tell you that if you don’t answer a question, let the lawyer know. If you don’t tell the lawyer you don’t understand the question, then the lawyer, and the deposition transcript and possibly the judge, will assume you understood the question.
- It is important to tell the lawyer if you don’t understand a question, or if the lawyer has asked multiple questions as one question. Don’t feel like you can’t tell the lawyer he has asked a bad question. It happens, unfortunately, frequently.
- Only answer the question asked and generally keep your answers brief. By this, I mean keep your answers extremely focused on answering the lawyers question. For example, if the lawyer asked you, “Was it sunny today?” that is a “Yes” or “No” answer. That is the answer you should give. You should not give a long, drawn out explanation, stating that in the morning it was sunny, then the fog rolled in, then it was cloudy in the afternoon, and then the sun came back at 4:00 p.m. The reason for only answering the question asked, and keeping your response brief, is if you answer in a long narrative, the highly trained legal professional taking the deposition may learn a new fact that they didn’t know prior, and may lead them to fact that may hurt your case. Thus, it is best to keep your answers short and to the point. There may be cases and situations where longer explanations are needed. If so, that will be discussed in the strategy session with your lawyer.
- Pause before answering your question. In a normal conversation, people frequently talk over one another and can anticipate what the other party is going to say. You cannot do that at a deposition because: (1) the court reporter can only make a clear transcript if one person speaks at a time; (2) you want to pause before answering to give you lawyer the opportunity to object before answering a question (once you answer the question, the answer is generally on the record and cannot be taken back); (3) slowing down the pace of answers allows you to think through the question and response, which generally leads to a more accurate response; and (4) you will frustrate the other attorney by talking slowly (a win).
Your deposition is an important part of your case. Other witnesses can be deposed to. If you have a question about your deposition, call our office as soon as possible.
Although these are common circumstances involving a deposition, be advised that this list is not exhaustive. Depositions can cover several different factual circumstances. THIS IS NOT LEGAL ADVICE. If you need Family Law advice regarding a deposition, contact Morales Law for a free consultation. Factual circumstances will vary and require specific procedures. We can be reached at (805) 845-5405 or at www.mysantabarbaralawyer.com. This is for informational purposes only and should not be relied prior to, or in place of, consulting with legal counsel.