Preparing for Deposition in Divorce: What the Client Needs to Know

Here are some tips, myths, useful information and actionable steps that a client should know when preparing for depositions in divorce.

By Kevin Karlson

Recent trends in family law—fewer trials, most cases settled in mediation, and even the advent of collaborative divorce—have paradoxically made depositions more, rather than less, important. After more than 25 years of preparing family law clients for depositions, and reviewing the depositions of hundreds of litigants and experts of various persuasions, some lessons have emerged based on the patterns of successes and failures that I have observed. Most of the important lessons are variations on the theme above—much of what clients think they know is wrong, and some of what we all learned in law school no longer applies. This article is focused primarily on helping clients to prepare for their own deposition and to manage their expectations as they watch the other depositions in their case.

Preparing for Deposition in Divorce

Good preparation of the client for depositions in family law cases includes these three components:

• Identifying and correcting mis-information
• Providing useful information in these areas:
  • The legal issues
  • Expected areas of inquiry
  • Expected and unexpected attacks
  • Effective communication skills
• Simulation and practice

Steven Covey was right. “Begin with the end in mind.” When preparing the client for depositions, the entire process should be driven by the strategic outcome that the client wants in their case—primary possession of the children, disproportionate division of the marital estate, lowest possible legal fees, or avoidance of trial at all costs. Until you know where the case is going, it’s not possible to prepare the client for depositions.

Many attorneys expect their clients to “score” during their depositions and consequently “feed” them responses designed to do just that. Unfortunately for the client, attempts to score almost NEVER work, usually backfire on the client. When clients attempt to articulate positions that are not their own thoughts or desires, it’s obvious to anyone listening, at the time or later at trial when the video is replayed, who is really testifying. The client looks like a mouthpiece for the lawyer, and this perception damages, rather than enhances, the credibility of the client.

Depositions are just like being short-handed in hockey because of a penalty—the goal is to play defense until the time runs out. In a deposition, that means teaching the client how to divulge the minimum amount of information in the maximum amount of time while following the rules. That means not only following the rules of evidence and procedure but also the rules for effective communication.

Identifying and Correcting Mis-Information is the First Task

What the clients “know” that ain’t so. Here is my list of top client myths:

1. This is my chance to “tell my story.” This myth is so prevalent I almost left it out of this summary. Too many hours of TV watching “Boston Legal” has apparently led clients to believe that some heartfelt explanation of their case during their deposition will somehow lead to a miraculous and rapid conclusion. Most of my consultation time is spent dispelling this myth and creating the open mind needed to receive the information that will actually help them perform well in their actual deposition.
2. I need to convince the other attorney (that I am right, credible, not crazy, etc.). Another widely held belief is that the opposing attorney is actually the audience/fact finder/decision maker, and that the deposition is a chance to persuade them/convince them/win them over. No doubt this myth is generated by watching the opposing attorney appear to be dis-believing of everything that comes out of the client’s mouth during a temporary hearing or some other interactions. Lacking the basic understanding of the attorney’s role as a zealous advocate, the client erroneously comes to believe that they must be failing as a witness since the opposing attorney acts so incredulous. This myth also needs to be eradicated so real training can be effective.
3. When the opposing counsel is nice, I can relax. This myth is a bit easier to correct through a discussion with the client about general interviewing and interrogation strategies. Opposing counsel is most dangerous when they’re nice, if the client believes this reflects some newfound appreciation for their position, rather than an attempt to get information.
4. I am required to tell everything I know. This myth is reinforced by the words of the oath “…the truth, the whole truth, and nothing but the truth…” and helps in making clients unnecessarily talkative and “helpful.” Explaining to clients that their obligation is to answer the question asked, period, helps to overcome this inclination to spill all the beans at once.
5. If I lie, I won’t get caught. For some reason, people lie in depositions on a regular basis, even if they wouldn’t necessarily do it anywhere else. Most of the lying is unintentional but some portion of it is an attempt to hide damaging information and try to “get away with it.” As we all know, the system is designed to detect lying and deception and expose it, and is very good at it. Only rarely is the “damaging” information that is unsuccessfully denied as damaging as the attempt to cover it up.
6. If I lie and get caught, I will go to jail (for perjury). This is the other extreme of the lying continuum—jail time for deceptions that are uncovered. As I tell my clients, “There is good news and there is bad news. I have yet to see or hear of a client going to jail for lying in a family law case. That means if you lie, you’re not likely to go to jail; it also means that if your spouse lies, they’re not going to jail either.”

De-bunking these prevalent and persistent myths is the first step in getting a client ready to learn information that will actually help in preparing for depositions.

What Family Lawyers Can Do: Provide Useful Information

Legal Issues
Clients need to know the issues. Most clients don’t really know what the legal issues in their case are because lawyers don’t take the time to explain it to them in plain English. Consequently, when clients get to their depositions, they don’t understand the implications of the questions they are being asked by opposing counsel as they relate to their case. This lack of knowledge can lead to damaging and unintended admissions against interest purely out of ignorance. The client should be able to explain their legal case to you in plain English so it’s clear they “get it” before they go face opposing counsel.

Family lawyers frequently instruct their clients to “read the pleadings before your deposition.” This is like instructing them to read the Old Testament in the original Hebrew. Unless you went to law school, pleadings are incomprehensible and meaningless at best, and terribly mis-leading at worst. If the pleadings or discovery documents contain important assertions about the client’s position, above and beyond the form book language, clients need to have each one explained to them and be able to summarize it to you in plain English.

Finally, once they understand the range of legal (not emotional) issues, clients need to take the time to prioritize the top 3 issues they care about most, so you know what they are, and they can articulate them if asked.

Clients Need to Understand the Rules (See earlier section for the detailed explanation)
Basic stuff—Procedure and Evidence

• Agreements
• Objections
  • Form
  • Responsiveness
• Hearsay

Other procedural stuff
In the era of video-taped depositions, the clients need to be trained to remember that the “camera never blinks.” Many a deposition highlight has come from the unguarded comment when the client forgot that the camera was still on them. The rule is “from the time you walk into my office until you leave, you’re on stage—act like it. Be civil; be polite always.”

Provide Useful Information—Expected Areas of Inquiry

Lacking a legal perspective, clients almost always are clueless about the areas that will be the focus of deposition questions, so they must be taught what to expect. Few clients can be expected to think well enough on their feet during a deposition to articulate their answers to the questions we all know they will be asked. In a simple divorce, that means questions about the grounds for the divorce, and if infidelity is alleged, the basis for that allegation. On the property side, women, especially the stay-at-home moms who have not been paying the bills, need to get smart about income, expenses, property, and their future income potential when they return to work.

In custody cases, areas of inquiry that are obvious to lawyers are not always obvious to clients. A good marriage and family history interview should be done now, if it hasn’t already. That interview should allow the client to talk about the history of the relationship, the marriage, the planning and birth of the children, the involvement of each parent in caring for the children, and the unique medical, emotional, educational, and any special needs of each child. The client should be able to articulate a reasonably objective list of strengths and challenges of each parent as a parent—”he’s a good provider” is NOT enough. This interview should provide the client the content for their answers in their own deposition, and give the attorney fodder to use in deposing the other parent as well.

Each case will also have areas of inquiry driven by the unique facts of the present case. Sometimes these issues are personal or relationship issues, like affairs or post separation dating relationships. In some cases, there are issues related to financial, tax, or hidden asset issues. In rare cases, there may be criminal histories to be explored. In most cases, family of origin issues influence the dynamics of the parties. In a few cases, unusual sexual preferences or practices become an issue in custody litigation.

Provide Useful Information—Expected and Unexpected Attacks

Expected Attacks
The apparent dis-belief of opposing counsel as an indirect (and sometimes direct) attack on the credibility of the client is routine, as are the challenges to the credibility of the client as a witness. Both education and rehearsal are antidotes to these kinds of attacks. Equally expected are attempts to get the client to admit to bias in their observations or reporting incidents of concern, along with parallel attempts to elicit damaging admissions of deception of the spouse or the children when they have occurred (like almost always).

Unexpected Attacks
Because clients are not completely open and because attorneys don’t take the time to listen to their clients, things will always arise that are unanticipated areas of inquiry. The smart attorney prepares his client for these surprises by giving the client a “toolbox” for dealing with any question.

Here’s the list of tools and rules:

• Yes, NO, and I don’t know are the best answers
• Answer ONLY the question asked, then stop.
• Do NOT explain, no matter what.
• Be calm and matter of fact
• Maintain good eye contact with the opposing attorney
• “This is a test, this is only a test”

Provide Useful Information—About Effective Communication

I have condensed the principles of effective courtroom communication into this list of “The 7 Secrets of Winning Testimony (and Effective Communication)”

1. Be Dressed—Dress like you belong there. “There” is the courtroom in your jurisdiction—it’s better to be too formal than too casual.
2. Be Confident—Look ‘em in the eye. People judge credibility by a witness’s ability to maintain good eye contact with the questioner.
3. Be Seated—lean forward. Leaning forward in the chair is the antidote to the body language of the defensive witness who leans back, so lean forward and stay there.
4. Be Sincere—tell the truth. Especially when it’s unfavorable, the truth is always better. Bad facts are manageable—bad lying is almost always fatal to a case.
5. Be Brief—The less you say the more credible you are. The other common index of truth-telling is long answers—only used car dealers won’t shut up.
6. Be “in the moment”—Listen, relax, think, answer. Be thoughtful and avoid the quick and thoughtless responses that will get you into trouble.
7. Be Strategic—When winning isn’t an option (like in a deposition), the goal is to avoid losing. Be smart, not self-defeating.

Simulation/Practice—Action Learning

Regardless of the level of intelligence or experience of the client (especially if the client is a lawyer), there is NO substitute for a simulation. No professional in any sport spends less than 100 hours practicing for any single event AFTER they have achieved a high level of skill in their sport (which means thousands of hours of practice and training), yet we send our clients into a deposition to face a skilled, and usually very experienced opponent with just an hour of chat and a pep talk!! I have NEVER had a client say they were sorry for all the time I insisted they put into practicing for their deposition. Opposition to practicing for depositions comes from attorneys who think it’s a waste of time.

Watching a deposition video, or a training video about how to do a deposition, or talking about how to perform can all be helpful (or not) but NOTHING is as good as a simulated deposition using video for feedback. When video feedback is not doable, do a practice run without it and take good notes—and stop immediately when there’s a problem. Discuss the performance challenge, instruct the client in how to fix it, and then do it again. Avoid giving the client answers to questions—they inevitably look deceptive when they repeat YOUR answers. Take the time to find out what they think, and then help them practice saying it their way till they are confident.

The more realistic the simulation, the greater the transfer of learning to the “real deal.” So make the rehearsal just like the real thing—in intensity, in length, in content, and if the real deposition will be on video, use video. It’s better if some other attorney does the questioning who can approximate the style of the opposing counsel, so you can play the role you will play in real life (and you can take notes about issues to be tuned up). Since fatigue is the greatest factor in poor performance late in a deposition, make sure one practice session goes at least as long as the real depo, and focus on mistakes late in the session when fatigue begins to set in.

As Jack Nicklaus says, “practice doesn’t make perfect—perfect practice makes perfect.”

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Kevin Karlson J.D., Ph.D. was trained as a professional in both law and psychology, and has worked as a divorce litigation consultant for the last 25 years. He is the co-author of two books and a child custody assessment system.