Understanding Discovery: Preparing for Depositions

Under the law, your opposition in a divorce or modification proceeding is entitled to question you under oath prior to trial. The testimony is taken by an authorized court reporter and then typed up for use at trial. This process is called a deposition. 

Sometime after your deposition, you will receive copies of the typed deposition called a transcript.

Depositions are important discovery tools for two reasons. First, your deposition testimony enables the opposing counsel to find out your version of the suit. Second, by taking your deposition the opposing party may hope to catch you in errors or falsehoods which can be shown at trial to raise an inference that you are not a truthful person and thereby discrediting your testimony. Your deposition, properly given, can greatly assist your case through settlement or at the trial. What you do at the deposition can help or hurt you, depending on your attitude, truthfulness and appearance. The following suggestions are offered to assist you in being an effective witness at your deposition.

  1. Dress and act as if you were going to court. Be clean, neat and businesslike.
  2. Treat all people at the deposition with respect.
  3. Avoid being overly friendly, losing your temper, joking or arguing.
  4. Take your time before answering a question. Give yourself ample time to understand the question so that you can give a proper and truthful answer.
  5. Instead of shaking your head or shrugging your shoulders, make sure you answer all questions out loud and clearly so the court reporter can record your answers.
  6. Answer a question directly and as concisely as possible. There is no need to volunteer any more information than requested.
  7. If you do not understand a question, please say so. Never guess what a questions means or where the opposing counsel is “trying to go” with a question.
  8. When answering a question, stick to the facts and testify only as to that which you personally know. Never guess what you think the answer is or should be.
  9. If you do not know the answer to a question, say so. You are not expected to have an answer for every question or to know all the facts yourself.
  10. Always tell the truth, even if you feel the answer is embarrassing or will harm your case.

Just as the opposing counsel is entitled to question you, you are entitled to take the deposition of the opposing party. You may depose the opposing party even if he/she chooses not to depose you. A transcript of the deposition testimony of the opposing party should be made available to you for your review. Although written discovery is useful, depositions provide a different kind of information. Does the opposing party appear as a sympathetic witness? Does the opposing counsel know how to get you to respond to his questions angrily? Are there weaknesses in the theory of your case that need to be bolstered before trial? These are just a few of the important questions that depositions can help you answer before the judge hears your case. Avoid surprises. Depose the opposing party.

Jill Rauk Daugherty is the Managing Attorney in the Overland Park, Kansas office of Cordell & Cordell, PC.

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