Moriarty & Dee, Attorneys at Law, in Buffalo, New York.

Deposition Testimony:

The Deposition (EXAMINATION BEFORE TRIAL)

Your deposition and/or your spouse's may be taken during your divorce action. The deposition (sometimes also referred to as an "examination before trial" or "EBT") is an important procedure, for which you and your lawyer will prepare. This section will help you understand what a deposition is, how it works, how you should conduct yourself, and potential problems.

1. Definition:
* A deposition is the testimony of a witness taken under oath before trial. Opposing counsel will ask the questions, and a court reporter will record the lawyer's questions and your answers. Your lawyer will be present, but the judge will not. In all likelihood, the deposition will take place in one of the lawyer's offices. The testimony you give at your deposition will be similar to what you will later testify in court.

2. Purpose: The purpose of a deposition. Opposing counsel will take your deposition for three reasons:

* To learn your personal knowledge of the facts and issues in the case; in other words, to know your story and what you will say in court, and what facts you agree to dispute for the purpose of narrowing the issues.
* To pin you down to a specific story so that you will have to tell that same version of your story in court.
* To perhaps catch you in a falsehood so as to persuade the court that you are not a truthful person and therefore your testimony should not be believed on any of the points, particularly the crucial ones.
These are legitimate purposes, and opposing counsel has every right to take your deposition. Likewise, you have the same right to take the deposition of the opposing party and all witnesses.

3. Potential Problems:

Remember that as a litigant or a witness your only goal is to give facts as you know them, and tell the truth as you know it. Therefore:

* Unlike at time of trial, you lawyer has a limited capacity to object on your behalf. Usually, he is restricted to objecting to the form of the question. Do not answer a question to which he has objected, unless he permits you to do so.

* Do not give opinions. Generally speaking, if you are asked a question that calls for an opinion, your attorney will object to the question. However, if your lawyer advises you to go ahead and answer after the objection, then answer.

* Listen to the question. Do not answer until you have heard the entire question.

* Never state facts that you do not know. Even if saying you don't know makes you appear ignorant or evasive, do not guess or estimate an answer. If your answer is wrong, your opponent can use it to show that you do not know what you are talking about or to imply that you are deliberately not telling the truth.

* Never try to explain to justify your answer. Doing so might make it appear that you doubt the accuracy or authenticity of your testimony.

* Only give readily available information. Do not ask your lawyer for information or ask another witness. Do not volunteer to look up anything or supplement your answer unless your lawyer tells you to.

* Do not reach in your pocketbook, wallet, or briefcase for any documents or information, unless your lawyer tells you to. Likewise, do not ask your lawyer for any documents in his or her file.

* Do not get angry. This destroys the effect of your testimony and may cause you to say things that can be used against you later.

* Do not argue with opposing counsel. Give the information you have--that is all opposing counsel is entitled to. Answer questions in an ordinary tone of voice. An emotional response to certain matters could give your opponent an advantage.

Back to Top

* Do not fence or match wits with opposing counsel. Opposing counsel has a right to question you, and if you respond with wise cracks or are evasive, you will irritate him or her and, worse, expose a personal weakness he or she will remember to work on at time of trial.

* Treat your testimony at deposition as if you were on trial. Answer questions in a cool, calm, collected manner, as you would hope to do at time of trial. Remember that your responses and your general demeanor are being closely watched by opposing counsel, whose attitudes about you will affect settlement negotiations and trial preparations.

* If asked whether you have talked to your lawyer or anyone else in preparation for your deposition, admit to it freely. You are expected to have talked with your lawyer. A good lawyer would not let you testify without first discussing the matter with you. If asked whether your lawyer told you what to say, say "certainly he did. He told me to tell the truth!"

* Do not be afraid to answer under oath. Do not let opposing counsel unsettle you by asking whether you are willing to swear to what do you know. If you were there, and you know what happened or did not happen, there is no reason why you should not swear to it.

* Do not guess. If you know the answer, say so. If you do not know the answer, let the other side know that as well. If you respond to any question with an estimate, make it clear that it is an estimate.

* Be polite. Answer questions in an open, attentive, polite manner.

* Dress. Dress conservatively. Do not wear tank tops, tee shirts, cut-offs, short-shorts to a deposition.

* If you need a break, feel free to request a cup of coffee, a glass of water, the opportunity to use a rest room, or chance to make an important telephone call.

* Do not chew gum. Chewing gum will make it more difficult for the court reporter to understand you and also create an impression that you do not take the proceeding seriously.

* Correct any answer you may have answered improperly. If your answer is wrong, correct it immediately or as soon as you realized you made a mistake.

* Do not exaggerate. Do not embellish, or state or relate anything that did not happen.

* Do not box yourself in. Do not say "that was it," "that was all of it," "nothing else happened," "that's all I said," "that's all I remember," or any other kind of comment that limits your testimony. You may well at some later point in time and date remember something that you omitted to say.

* Documents. If you are shown documents, take the time to read them carefully and thoroughly. Look at the date, the author, the signature, the addressee and to whom copies were sent. Make sure you understand the substance of the document before responding to any question about it.

* If your lawyer starts to speak up, stop answering immediately and allow him or her to talk. If your lawyer is objecting to the question, do not speak until he or she advises you to answer or opposing counsel asks the next question.

* Take your time. The transcript of your deposition does not show how long it takes you to answer. Think about each question and answer it in a straightforward manner.

* Tell the truth. The truth will never hurt you. Your lawyer may explain away the truth, but cannot
explain away your lie or your concealment of the truth.

* Never joke in a deposition. Humor will not be apparent on the transcript and will make you look crude or cavalier about the truth.

* Do not volunteer facts. Simply answer yes or no. Do not elaborate unless asked to do so. Such information can only hinder your case.

* Speak slowly and clearly. Do not nod or shake your head. The court reporter must hear your answer before recording it.

* After the deposition, do not chat with your opponent or your opponent's lawyer. Remember, they are legal enemies. Do not let good manners cause you to drop your guard.

* If you do not understand a question, ask that it be repeated or clarified.

After reading these suggestions, write down any questions you have and ask your lawyer about them before your deposition.

Back to Top