Specialty tag(s): Litigated Divorce, Contested Divorce, Divorce, Pre-Divorce Guidance
Thomas A. Greenwald | May 30, 2024
When you are about to give sworn testimony, either by deposition in an attorney’s office or in a courtroom, it’s crucial to make your testimony as effective as possible. Your deposition testimony may be used at trial, so similar rules apply to deposition and courtroom testimony. Keep in mind that some of these pointers should be strictly observed, even though they may not fit with your personal style or inclination. Occasionally, your case will be an exception to the general rule, so it’s important to consult with an experienced attorney before giving your testimony.
It won’t be a surprise. You are entitled to reasonable notice of the deposition or trial appearance. Case law has interpreted “reasonable notice” to mean three to five days, depending on the circumstances.
Your appearance matters. Dress conservatively for your deposition or court appearance. You will be notified in advance if the deposition may be videotaped; however, approach each deposition in a divorce or other family law case as though it is going to be videotaped. Choose business attire over casual clothing, dark shades over bright colors, solids over prints, conservative shoes, and modest jewelry.
Keep a professional demeanor. Whenever you are scheduled for a divorce deposition, consider yourself to be under observation from the time you leave your motor vehicle until you return to it. Do not laugh or make clever remarks during a deposition or any other type of legal matter. Do not be drawn into pleasantries by the opposing party, opposing attorney, or staff. If you see someone you know, keep your greeting brief.
Check your posture. As you’re providing divorce testimony, your posture conveys your attitude about the case. Do not lean back in the chair. Keep your feet on the floor. Never swing your leg or jiggle your foot. Sit erect and slightly forward. Whether you are giving a deposition or court testimony, this case is serious business to you, so your demeanor should convey that mindset. Avoid mannerisms that tend to indicate anxiety or lack of confidence.
Speak carefully. Your speech during a divorce deposition should show your strength as a witness. Try to be conscious of distracting speech patterns, such as the use of crutch phrases like “You know,” “Don’t you see,” or “To be honest with you.” Do not use words like “never” or “always.” If there is a court reporter present, the court reporter will take down every word, and only one person may speak at a time. Do not interrupt a speaker, and if someone interrupts you, stop. It is difficult for the reporter to record nods of the head, so always speak your responses. Also, words like “yeah” sound rougher in writing than they do orally, so say “yes” and “no.” Do not be concerned about errors in grammar or the mispronunciation of words. The truth and accuracy of your recollection are more significant during depositions in divorce cases than your language agility.
Tell the truth. Even if you think the truth will be to your disadvantage, always tell the truth during a deposition in a divorce or other family law matter. When telling the truth is your principle guideline, you can relax. You will not get flustered when the opposing attorney tries to make you sound like you have been lying, because you have not been. You will not have to figure out whether a truthful answer will help or hurt the case. And you will not have to worry about what you said three questions back or three months ago. If your answers are inconsistent, there is undoubtedly a reasonable and honest explanation. Your demeanor and voice will communicate that you are being truthful.
Know the facts of your case. Create and review a timeline of events before your deposition or testimony. Review all important documents and other significant tangible information (e.g., photographs and recordings) before your deposition or testimony. If available, review the transcripts from previous hearings or depositions as well. If your deposition in a divorce case has already been taken, it is important that you review your deposition before you testify in court. There is no substitute for preparation.
Be brief. If the opposing attorney is questioning you, do not make their job easier by speculating, explaining your answers, or anticipating their questions. For example, do not think about what they intended to ask and answer that question as well as the question asked. If you do not know an answer or if you do not remember something, say so. Do not speculate on what might have happened or what normally would happen. Sometimes, it may be appropriate to begin your answer by saying, “To the best of my recollection….” Do not guess or estimate. Allow the attorneys ample time to object when you are asked a question. Then, make your answers brief, and only answer the question asked. When you have finished answering the question, stop talking. Do not try to explain or justify your answer. Do not volunteer information. Sometimes, an attorney will ask a confusing or compound question: If this happens, ask that the question be repeated. If it remains unintelligible, ask that it be rephrased because you do not understand the question. Do not ask, “Do you mean…?”
Don’t let them put words in your mouth. Quite often, the opposing attorney during divorce depositions will attempt to paraphrase or summarize a series of questions and answers into a single question. Listen to the question very carefully. If the question ties a series of significant facts together, it should be asked in a series of questions, not in a single compound question. For instance, the attorney might say something like, “You met with Mr. Smith and the child six times, but you only met with my client and her husband three times: Isn’t that true?” The question is really asking about the number of appointments for four individuals. Furthermore, we cannot determine by the question whether the appointments were individual sessions or joint sessions. A “yes” answer could be interpreted in several different ways. Do not answer paraphrased, compound, or summary questions unless the question is only subject to a single interpretation.
Leave the door open. When the other attorney asks you, “Is that all?” say, “That is all I remember at this time,” or “At this time, that is all I can recall that I found.”
Be careful with presented documents. If a document is shown to you and you are asked if you can identify it, your answer will normally be “yes.” Stop there. Make the attorney ask you to describe the document. Then, identify the document by keywords that appear at the top of the page, such as the title, date, addressee, and writer. Note that the attorney questioning you is not asking if you have ever seen the document before by simply asking if you can identify it. If you have never seen the document before, identify it by using words such as, “This appears to be….”
Wait for objections. As you are giving testimony, an attorney might object to a question posed to you. When that happens, stop; do not proceed to answer until you are instructed to do so by your attorney or the judge.
Remain calm. The opposing attorney’s strategy may include getting you to become argumentative, defensive, or just plain angry. No matter how angry you become, do not let it show. Check your tone of voice so that it remains calm, pleasant, earnest, and reasonable. Prepare yourself to guard against irritating insinuations and the behavior of the opposing attorney. Your opponent’s case improves if you show hostility. Being reasonable under provocation may be important to the outcome of your case.
Your deposition notice may be accompanied by a document request. You are entitled to notice of a document request. It is important that you work with your attorney before the deposition to respond to the request and that you gather documents and tangible things responsive to the request.
You will usually receive the original deposition a week to two weeks after the completion of the deposition. Unless the attorneys have agreed otherwise, you have 20 days to review the deposition and sign it before a notary. You are allowed to correct the form of the deposition. If you do not return the deposition in the time allotted, an unsigned copy may be used at final trial or a hearing.
Do not argue or be defensive. Defensiveness clouds clarity. If you are engaged in a dispute about insignificant facts, it will detract from your message. No matter how well-prepared or knowledgeable you are, if you argue with the opposing attorney, you will appear difficult, uncooperative, or defensive. Refusing to acknowledge a point, even when the facts call for it, will hurt your credibility.
Do not over-explain. The truth may be stated in a few words. Do not be afraid to let a statement stand on its own merits. Sometimes, because of nervousness or a desire to appear helpful or completely truthful, you may feel the need to explain every detail. Resist the urge to over-explain. Some witnesses tend to answer the same question in several different ways in response to a single question. Over-explanation diminishes the message.
Stand your ground. Answer the question that is asked and stand firm. Resist the urge to change your answer so the attorney will move on to something else. Although agreeing may defuse tension in the short term, it could destroy your case in the long run.
Be prepared. There is no substitute for preparation. If the opposing attorney can establish that you do not have a grasp of the general underlying facts, your credibility will be called into question. You are not expected to know insignificant details. An honest mistake can typically be explained and dismissed in short order.
Engage the person speaking to you. During a deposition, speak directly to the attorney asking the questions. When you are in the courtroom, make eye contact with the person asking the question, whether it is the opposing attorney, your attorney, or the judge. Consistent and sustained eye contact conveys honesty, and it draws the listener into the testimony.
There are three keys to a successful deposition and court testimony:
Keep these in mind when you give testimony. When learning how to prepare for a divorce deposition or any other legal matter, think about what your testimony is likely to be. Talk about troublesome questions or circumstances with your attorney in the days leading up to your testimony. And tell your attorney about any areas that concern you or that you believe could harm your effectiveness as a witness.
Tom Greenwald is a seasoned trial attorney with three decades of experience in family law. He has been honored as the Best Lawyers Family Law “Lawyer of the Year” in the Dallas/Fort Worth area, he has been recognized as one of the “Best Lawyers in Dallas: Family Law” by D Magazine, and he has been selected as a “Top 100 Lawyer” by Texas Super Lawyers. Tom is board certified in family law and he possesses specialized knowledge of handling property division, complex compensation structures, child custody, separate property claims, private business interests, and business valuation. His objective is to assist clients in discovering efficient and constructive resolutions that facilitate cost savings and preserve positive professional relationships for the future.
For advice on preparing for a deposition in divorce or court testimony, please contact Thomas A. Greenwald at 214-473-9696.
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