Depositions in Mississippi Divorce Law
In our Ultimate Guide to the Process of Divorce, we discussed written discovery, consisting of interrogatories, requests for production, and requests for admissions. By contrast, depositions are conducted in-person, face to face. Anyone who might be called as a witness is subject to being deposed. But in many divorce cases, the only witnesses actually deposed are the husband and wife. Moreover, it is not unusual for no depositions to ever be taken.
Usually, depositions will be taken at the office of one of the lawyers. You will attend with your lawyer; your opponent will attend with her lawyer. In divorce cases, it’s customary for the husband’s and wife’s depositions to be taken back-to-back (not necessarily in that order) on the same day or on consecutive days, although the rules do not require this.
The lawyer asks the witness questions, and the witness answers them. A court reporter will be present to transcribe these questions and answers and generally anything else that is said during the deposition. Later, this transcription will be printed in a booklet. The deposition can also be videotaped, and the video (or snippets from it) shown to the chancellor at trial.
Purpose of a Deposition
There are several purposes of a deposition. First, to learn what the witness knows about the case. Lawyers get to inquire into a greater range of subjects than they are allowed at trial. Remember that one of the purposes of discovery is to prevent trial by ambush. If the witness claims to know something that is going to hurt you at trial, you and your lawyer want to know this as early as possible.
Second, to preserve the witness’ testimony. As we’ve mentioned, the court reporter will type up a transcript of what was said at the deposition. During the trial, a lawyer can confront a witness with the transcript when the witness gives testimony at trial that differs from the testimony that he gave at the deposition. E.g., “Today you’re saying that the light was green, but at the deposition didn’t you say that the light was red?” [lawyer reads out loud from the witness’s deposition testimony].
In most depositions, the idea is not to cross-examine the witness or to back him into a corner until he admits that he’s lying. Quite the opposite. Usually, the lawyer doesn’t care if the witness says that the light was red, yellow, or green. What matters is that the witness is “pinned down” to one story. If the witness said at the deposition that the light was red, definitely was red, he has no doubt that it was red, he’s sure about it, no question in his mind whatsoever, it was red — then it’s going to be very awkward at trial for the witness to say that the light was green.
A third purpose of a deposition is to have the witness admit key facts. Lawyers sometimes call this locking the door. Suppose that a wife sues her husband for divorce solely on the ground of adultery. The lawyer will want to lock the door against any other accusations that the wife might make at trial. Thus,
Q. You’re saying that my client committed adultery.
A. Yes.
Q. OK. We’ll talk about the adultery in a minute. First, let me ask you this. Did my client have a drinking problem during the marriage?
A. No.
Q. Did my client abuse drugs or prescription pills during the marriage?
A. No.
Q. Was my client violent during the marriage?
A. No.
Q. Did he ever punch, poke, hit, slap, pinch, or beat you in any manner whatsoever?
A. Never.
Q. Did he ever threaten you with any violence or seek to harm you in any way?
A. No.
Q. Other than the adultery, did my client do anything in the marriage that was so bad that in your mind it justifies getting a divorce?
A. No.
Q. So the only thing that my client ever did during the marriage that justifies getting a divorce is his adultery, is that right?
A. Right.
With this deposition testimony, it will be awkward for the wife to make claims at trial other than for a divorce based on adultery. Without this testimony, the husband doesn’t know what she will say at trial. To be clear, a witness can give testimony at trial that contradicts her deposition testimony. But when that happens, unless the witness has a good reason for changing her testimony, her credibility will be strained.
A fourth purpose for taking a deposition is to allow the lawyer to evaluate how the witness behaves when testifying. Some people make better witnesses than others. It helps when evaluating the case for trial and settlement to know from personal experience whether the witness will come across at trial as smug, evasive, absent-minded, discourteous, boastful, hostile, etc. Then again, if the witness is “cool, calm, and collected” when testifying, it helps to know that, too.
Deposition Pointers
There is standard advice for witnesses giving a deposition:
Dress comfortably but professionally
Plan on the deposition taking all day. They’re usually shorter, but the more complicated the case, the longer the deposition.
Take it seriously. Your deposition is your sworn testimony, so it’s not a good idea to make jokes.
Your primary job is to tell the truth about what happened.
Listen carefully to the question. If you start answering before the question has been asked, you might find yourself answering the wrong question.
If you understand the question, answer it. Don’t be evasive or cute.
If you don’t understand the question, say that you don’t understand the question.
Once you’ve answered the question, stop. You don’t need to tell everything that you know.
Take your time answering questions, especially those with built-in assumptions.
If you’re given something to look at, such as a contract or a photograph, take the time you need to look at it before you answer questions about it. The lawyer is not allowed to rush you.
Always keep your cool/Never get upset. Remember that one of the lawyer’s purposes in taking your deposition is to see what kind of witness you will make at trial. Some lawyers will try to make you mad on purpose by asking questions that you find insulting. Keep your cool.
The lawyer gets to ask what will appear to be different versions of the same question and to return to subjects that you’ve already covered earlier in the deposition.
Similarly, expect the lawyer to ask the same question over and over.
The lawyer also gets to ask a lot of background questions.
Do not be surprised when the lawyer asks unpleasant and/or personal questions.
If your lawyer objects to a question, let him make his objection, and then go ahead and answer the question. Deposition objections are just a “legal thing” that you can ignore. But if your lawyer instructs you to not answer a question, don’t answer the question.
Think twice before saying “always” and “never.” Few things in life always happen or never happen.
If the lawyer lists several facts in one question, and then asks you to agree, you can ask him to list each fact individually.
Two more tips: We said that once you’ve answered a question, stop. Understand that the lawyer knows a lot more about the case than he’s letting on. You are not going to convince him that you’re right and his client is wrong. So don’t try. Also, if he catches you in a lie, he is not going to confront you with it at the deposition. He’s going to save that for trial. During the deposition, he’s hoping that you will embellish your lies, and he will encourage this — which will just make it harder and harder for you to explain away at trial that you just “made a mistake” when you said something untrue at the deposition.
Also, don’t fall into the habit of answering questions with, “I don’t know.” If you really don’t know, that’s fine. But sometimes witnesses lapse into saying I don’t know over and over in response to every question. They apparently think it’s a clever way to outfox the questioner.
Think again. If you said “I don’t know” in the deposition, it’s going to be difficult to testify about that subject at trial because you’ve already said that you don’t know. And that makes it unpleasantly easy for your opponent to say any old thing he wants to — and you can’t contradict him because you don’t know. It’s better to admit that you know about some uncomfortable truths than it is to pretend that you don’t.
Deposition Costs
Depositions aren’t cheap. Not only do you have to pay your lawyer to prepare for and attend the deposition, somebody has to pay the court reporter, too. It adds up quickly. Your lawyer can tell you what to budget for depositions. As a rule of thumb, expect to pay your lawyer for a full day’s work in attending/taking the deposition (at whatever his hourly rate is) and paying the court reporter about $150/hour. That’s for the day of the deposition.
But a lot of preparation goes into taking or defending a deposition well. If you are being deposed on anything but a straightforward, uncomplicated case, you should begin working with your lawyer early, well before the date of the deposition. The same is true for helping your lawyer prepare to take your opponent’s deposition. In a moment, we’ll discuss the preparation that should go into the deposition. For now, we’ll just say that all of the time spent adds up, and your lawyer’s time costs money.
In an ideal world, where money is no object and you can spend all you want to prepare for trial, depositions are a very effective information-gathering tool. But most divorce cases go to trial with zero depositions having been taken because of the cost.
Deposition Preparation
(What do you think they are going to ask me?)
The one question that we hear more than any other on this subject is, What do you think they’re going to ask me? The short answer is Everything. But that doesn’t help much.
If you and your attorney think carefully about the case, there probably won’t be too many surprises at your deposition. Here’s the Big Picture look at the process:
What goals am I trying to achieve in this litigation? (Winning custody, getting alimony, being awarded the house, etc.)
For each of these goals, what is the testimony that I would give in order to convince the chancellor that I should get what I want? (For example, you could probably talk for hours about why you should be awarded custody. Or if you’re seeking alimony, there is a considerable amount of financial analysis that must be performed to justify the award that you’re seeking.)
What other evidence would I want the chancellor to consider? (Who are the witnesses that I would want to testify? What documents, photographs, recordings, etc. would I want the chancellor to consider?)
Now, put yourself in your opponent’s shoes, and answer the same three questions as you think he would. Be honest. Give him credit for the strengths in his case, which are the weaknesses in yours.
What are the bad facts that he’s going to want me to admit/talk about?
How am I going to counter my opponent’s answers in 4., above?
If you follow this exercise rigorously, you’ll have the beginnings of a pretty good outline of the subjects, if not the questions, that the lawyer is going to inquire into.
Here’s the last thing that we’ll say about depositions. Depositions are the time to get real with the bad facts in your case (if you haven’t already). If you haven’t told your lawyer the whole truth about the bad facts, you are only hurting yourself. You must level with him well in advance of the deposition.
Chances are, the bad facts aren’t the disaster that you think they are. Divorce lawyers have several “playbooks” that they can run, all the way from My Client Is Completely Blameless to My Client is a Complete Degenerate, and everything in between. Even if you feel that you have a lot of explaining to do, your lawyer can put together a game plan to get the most from even a terrible situation.
But if you’re not honest with your lawyer, he’s going to reach for the wrong playbook, call the wrong plays, and manage your case the wrong way. That’s on you, not him. Be honest with your lawyer from the very beginning. And if you haven’t, you absolutely must come clean before you give your deposition.
