You know who has a very limited sense of humor? Attorneys and judges, that’s who. When you are embroiled in, say, a custody case, fighting for physical custody of your children, your fabled wit and insightful sarcasm should be conspicuously absent. The law, in Virginia and elsewhere, is a treasured, serious and honored idea. Judges especially do not enjoy courtroom antics, videotaped depositions rife with jokes and attitude, or aggrieved fathers who have watched too many episodes of Better Call Saul. Your family law attorney will also provide you with more excellent ideas to get you through your deposition.

What is a Deposition?

During the course of family law proceedings (child custody, visitation, separation agreements, divorce, and so on), attorneys for both sides gather information. Usually, because of schedules and distances, much of this is gathered through out-of-court interviews, or depositions. These are gathered during discovery, and may or may not be used in court. Depositions can be in-person interviews or written questions; they can be videotaped or recorded by a stenographer.

When is a Deposition Testimony Used?

Exceptions to hearsay can put you in an awkward spot. Usually, Virginia courts recognize three ways deposition testimony can be admitted:

  1. You admit to something that is against your own interest
  2. Your trial testimony contradicts your deposition testimony
  3. You are unavailable at trial

People are understandably nervous to be deposed. As the deponent, you have to ensure what you say answers the question, does not give away additional information, and cannot be contradicted later.

Do You Really Have to Tell The Whole Truth?

In any legal proceeding, the truth really is on your side. Promising to tell the truth, the whole truth, and nothing but the truth is more than just a scripted line. It sets your mind on a clear course: you have to tell the truth. This way, you cannot be caught up in trying to fabricate a lie and bolster it with more lies.

Getting Prepared for Your Deposition

Knowing you will be nervous, you can use some controlled breathing techniques before giving your deposition, to help clear your head. You also can admit to yourself that you are nervous, and take an extra second or two to answer any question.

If you have in your head that you will outwit your ex-wife’s attorney, kindly dig up a copy of the movie A Cry in the Dark1, 1988, and watch the courtroom scenes in which Meryl Streep is being hammered by the Crown’s attorney2.

Attorneys are adept at confusing witnesses, rattling them, and peppering them with questions one after another. The movie is based on a real-life case, a case that continued more than 24 years after the trial, with Chamberlain giving a deposition to compel reopening the case.

Your family law proceeding may not have the consequences of a murder trial, but do not count on your ex-wife’s attorney to tread lightly. Think carefully before answering every question. Take all the time you need to compose yourself, and be certain you understand the question. If you feel rattled, angry, frustrated or confused, ask for a break. Consider the subject matter of the questions: you are talking about your kids, your marriage, the intimate details of two people’s lives. Expect to react emotionally, but work to control your emotions.

Learn the Power of Silence

Active listening is a real skill. Hearing exactly what the attorney asks you is vital to your success in deposition. Answer that specific question, offer nothing else, and stop talking. Lawyers, despite a reputation for fine, flowery words, love silence. They love the uncomfortable silence in which the deponent, wishing to fill the awkward gap, keeps talking. And talking. And conjecturing, speculating, spilling your guts … and revealing far too much.

Do nothing to help the other side’s attorney. Once the question is answered, be quiet. A trick to this is to keep your hands folded in your lap, and when you answer the question, squeeze your hands to remind yourself to silence your tongue.

Beware of the False Dichotomy

A common type of question in depositions is the false dilemma, or false dichotomy. It may appear as, “So did you love your wife or did you two constantly fight?” Those are not mutually exclusive, yes/no sides. They are not even two sides of the same argument. How do you answer such a question? Avoid answering questions with a Yes or No if the question is not simple.

Say as much: “That cannot be answered yes or no, either or. Can you restate the question?”

Don’t be a Dummy

The wooden dummy sitting on a ventriloquist’s knee has words put in its mouth all the time. Do not become the opposing counsel’s dummy. Avoid rapid-fire questioning:

“You said earlier you drank occasionally. You agree with that, right? You remember saying you drank once in a while? Would it be fair to say that you got drunk and squandered the rent money at least 13 months out of the year? That sounds about right, doesn’t it?”

Humans by nature naturally want to assent; you could talk yourself into a trap by answering that nonsense using the attorney’s words, by agreeing with that ridiculous assessment. Do not let the attorney answer for you. Compare these answers:

  • “Yeah, I guess.”
  • “I did say I drank on occasion, but a year has only 12 months, so your question is factually wrong. I never spent our rent money on drinking. I seldom drank to excess. I would say your statement was not fair or correct.” 

Think of which answer came after careful, deliberate thought, and which answer was better. Before giving deposition in a family law matter, please call the experienced Virginia Beach family lawyers at The Firm for Men by dialing 757-383-9184. We can help prepare you for the pressure and tough questioning that come with depositions.


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