A deposition is a formal question and answer process in a setting less formal that a courtroom. Questions are answered under penalty of perjury, meaning that you must answer questions completely and truthfully. The big difference between deposition questions and questions in a courtroom is that in a deposition the attorney may ask you questions the answers to which are "likely to lead to the discovery of admissible evidence" even if the question, itself, doesn't yield an admissible answer. In a courtroom the attorney can only ask questions which lead to admissible answers.
A deposition is not a settlement negotiation. It's a discovery tool.
What are the Rules of a Deposition?
In a deposition you may be asked questions to allow the questioning attorney to discover what you know. You should discuss this with your own attorney but know that:
1. A deposition may be videotaped if you are informed in advance;
2. A deposition may go on for more than one day;
3. You may be asked to bring documents to the deposition or in advance of the deposition about which you will be asked questions;
4. The questioning attorney is entitled to your best estimate of information (e.g. "About how much money did you make last year?") even if you don't know the exact answer, but you aren't required to venture a complete guess (e.g. "How much money is in my wallet?");
5. A deposition isn't a marathon. You're allowed to take breaks;
6. You are allowed to speak with your attorney but the questioning attorney can comment about this;
7. You'll have a chance to review your answers in booklet form and make changes, but any changes can be commented on at trial.
How Should I Prepare for a Deposition?
If papers have been filed by you or on your behalf in the case you should review them before going to court. Likewise, if you've been asked to bring documents to the deposition (or produce documents before the deposition) you should be familiar enough to discuss them at the deposition. You should definitely discuss the process with your attorney before you go to the deposition.
What Should I Avoid Doing?
You may be asked about conversations you've had with other people about your case. Unless the conversations are with your attorney or somebody who has a privileged relationship with you (e.g. your therapist), you will have to answer questions about those conversations, so avoid having them.
At your deposition you should answer questions clearly and completely...then stop. You should only answer the question asked, not the one you think should have been asked. You should never volunteer information.
You should always answer questions with words. Nods and shakes of the head don't work. Likewise, don't use "uh-uh," or "uh-huh."
You should make sure the question has been completed before you start to answer (sounds simple but watch how people constantly anticipate each other's sentences in normal conversation).
You should always be polite to the attorney asking questions no matter how the attorney treats you. NEVER be sarcastic. It doesn't work when you read it later.
Dress comfortably but respectfully. This is especially true if the deposition is being videotaped.
When you're answering questions always take a breath before giving the answer. This gives your attorney time to object if there's a legal basis for doing so. If you've already answered before your attorney has time to object, it's too late. The answer's in.
Finally, don't worry if an answer makes you sound bad. If you're concerned about an answer let your attorney know. Your attorney can ask clarifying questions (I call it "batting clean up") at the end, if necessary. Don't be surprised if your attorney chooses not to do so. Remember, every word you say is helping the other side. You're not there to try to convince the other attorney of anything. Your job is to answer the questions, completely and truthfully, and stop.
Sometimes questions in family law cases can be personal or even embarrassing. That doesn't mean you can refuse to answer. Your attorney will object, if appropriate.
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