CHAPTER 8: Litigation
YOUR DEPOSITION TESTIMONY
What Is a Deposition?
A “deposition” is part of the larger process known as discovery. The idea behind discovery is to encourage settlement by requiring parties to disclose all of the information they have concerning the issues pending in the divorce. You will be required to provide documents, such as tax returns, paystubs, bank records, etc., during the discovery process. You may also have to answer written questions known as interrogatories. The deposition is the culmination of that process of disclosure.
A deposition is a sworn statement, taken in the office of one of the lawyers, before a court reporter who takes a transcript of everything that is said. Your spouse’s lawyer will ask you questions, and you will be required to answer those questions. In a discovery deposition, very few questions can be objected to, although often, questions that you must answer at your deposition cannot be asked of you should your case proceed to trial before the judge.
Depositions are not taken in every case. You and your lawyer will discuss whether it is necessary for your lawyer to take the deposition of your spouse, because there are expenses involved that might not be warranted given the facts of your case. Generally, if your spouse’s lawyer wishes to take your deposition, your lawyer will take the deposition of your spouse.
Why Is Your Deposition Being Taken?
Your spouse’s lawyer will have three separate and distinct goals in taking your deposition:
- To discover information.
- To commit you to a particular answer, so that it will be difficult for you to change your position later.
- To see what it takes to rile you and cause you to make a mistake or look bad. The lawyer can then try those tactics on you if you later have to testify in court.
You can expect your spouse’s lawyer to do whatever he or she can to throw you off guard such as, change topics and jump around to different issues, and be argumentative and obnoxious or repetitious. It is a test run for trial.
Preparing for your Deposition
A deposition is like a play, an artificial environment for which there are set rules and regulations. Your spouse’s lawyer will likely begin by using a friendly conversational tone to get you to relax and let your guard down. But make no mistake, a deposition is not a conversation and your spouse’s lawyer is not your friend. Expect some distractions, both intentional and unintentional, such as your spouse feverishly writing or making noises or grimacing. You’ll need to ignore them.
Being a good witness is a learned skill. Before your deposition, your lawyer will meet with you to go over the rules and explain what you should expect. Your lawyer will also advise you on what questions you are likely to be asked and will take you on a dry run. Your lawyer will probably try on you some of the tactics you can expect from your spouse’s lawyer so you can practice staying calm under stress.
Here are the most important rules for you to remember when testifying at your deposition:
- Listen carefully to the question and wait a moment before answering in case your lawyer objects to the question.
- Answer the question truthfully, but only if you understand it. If you don’t, ask for the question to be repeated, or rephrased. You don’t have to answer a question that you don’t understand.
- Answer only the question asked and do not volunteer more information than the question requires.
- Before answering, think of which of the three purposes of depositions the question is seeking. If you recognize that the purpose of a question is to antagonize you, you are more likely to maintain your composure.
If you feel like you can handle more advice, read through §§8:13- 8:18. These sections provide advice for testifying at trial, which is also useful for deposition testimony.
Your case won’t necessarily need a trial just because you and your spouse both give depositions. In fact, parties often settle after seeing how they each perform on their deposition. The better you do at your deposition, the more likely you are to receive a favorable settlement offer.
DECIDING WHETHER TO TAKE YOUR CASE TO TRIAL
Avoid a Trial if Possible
The outcome of a divorce trial is very rarely satisfying to either side. Divorce litigation generates very few clear-cut winners and losers. It tends to be bitter and very personal. Before taking your case to trial, you should have in mind a specific goal that you hope to achieve. And you should understand that total victories, i.e., getting everything you want, are rare. A settlement agreement, even when it doesn’t give you everything you want or think you deserve, is almost always better than taking a case to trial. At least you had some input into the bad agreement and you know what you are getting. If you go to trial, you will be letting the judge, a complete stranger, decide what is going to happen to your children and everything you own. The judge will make this momentous decision after seeing you and your spouse sporadically, if at all, during the worst time of your lives, and after hearing a just few hours of testimony and some arguments.
You owe it to yourself and your children to make every effort to avoid a trial, and explore every opportunity for settlement. To be sure, some cases need to be tried because of factual disputes or legal issues that simply cannot be negotiated. These are few and far between, and almost always involve significant amounts of money.
Especially in Custody Cases
Custody cases should rarely be tried. Good parents, caring parents, understand that they brought children into this world, and that they have a responsibility to get them through their minority years as physically and mentally healthy as possible. They sit down with the help of a therapist, mediator, attorney, or whatever other professional they need and work out arrangements for custody that truly serve the best interests of their children, not just pay lip service to it. The trauma of divorce on a child is unimaginable by an adult because adults no longer remember what it was like to think like a child.
The adversarial legal system is the worst way to determine what is going to happen to your children; it is only one step above Solomon’s suggestion of cutting the baby in half. There are no “successes” in custody cases, only survivors. Unless your case involves unusual circumstances that genuinely jeopardize the safety and well-being of your children, reach a parenting agreement with your spouse. See Ch. 2.
Do a Cost-Benefit Analysis
When considering whether to go to trial, make sure to discuss the following questions with your lawyer:
- What particular goal or goals do you think are attainable at trial that settlement cannot achieve?
- Why do you believe that trial will succeed where negotiations have failed?
- How do you plan on convincing the court that the judge’s recommendations for settlement should not be implemented in a final judgment?
Unless you and your lawyer can come up with satisfactory answers, you are better off settling.
The decision to go to trial should be based on objective criteria and a cost-benefit analysis. You may feel that your spouse’s last settlement offer cheats you or that the judge is being stingy in his or her pretrial recommendations. While both may be true, you have to factor in the costs of trying the case, the likelihood of getting a better result, and the risk that you won’t. The costs of trial could easily outweigh any gain you achieve.
For example, if your spouse offered a 55/45 split of the marital estate in your favor, and you think you should get a 60/40 division, determine what the 5% difference means in dollars and cents. Is it worth spending
$10,000 to try the case to recover an extra 5% when the entire marital estate is only valued at $100,000.00? How will you feel if you get even less than your spouse offered?
Similarly, if the judge recommends support of $1,000 per month for your 15-year-old, and you think the correct amount should be $1,200 per month, how much time and money do you want to spend convincing the court to order the extra $7,200 to be paid over the next three years until your child reaches 18 and is no longer entitled to support?
On the other hand, when significant money is at stake, cases should go to trial because the risk-benefit analysis indicates that the potential reward outweighs the costs.
Focus on the Economics in Making Your Decision
Do your best to focus on the economic, not emotional, aspects of taking the case to trial. Going to trial based on emotional considerations, such as a desire to punish your spouse or prove a point, is a bad, and usually dangerous, thing to do. Taking the case to trial for emotional reasons is bad because it damages your post-divorce relationship with your ex-spouse, which generally means ongoing bitterness, post-divorce litigation, and continuing harm to the children.
Taking the case to trial for emotional reasons can be dangerous because judges often recognize the spouse’s motivation. In an area of the law like divorce, where there are few black and white rules and the judge has large gray areas of discretion, the emotionally motivated litigant tends to fare poorly.
No litigant is going to be completely satisfied by the judge’s decision, regardless of outcome. No decision goes precisely the way either litigant wishes. It is far better for two people to come to an agreement of their own than to have a stranger tell them what is going to happen to them and their children for the rest of their lives.
The decision of whether to go to trial is yours alone to make. Make sure it is an informed decision. By the time you are considering trial, your lawyer should have a good handle on the facts, issues, and applicable law, as well as the judge’s inclinations. Although your lawyer cannot ever state with dollars and cents the certainty of the outcome, he or she ought to be able to give you an idea of the range of outcomes to expect from at trial. Your lawyer should also be able to give you a good idea of how much a trial will cost including attorney’s fee, expert witness fess, deposition fees, and transcript fees.
Make sure you have all this information before you make your decision. Don’t become one of the tens of thousands of people who embark on expensive divorce litigation every year without the faintest notion of what that litigation is going to cost them or a realistic idea of what they can expect to achieve.
IF YOU DECIDE TO GO TO TRIAL
Understand the Judge’s Role
Divorcing couples often want to go to court because they misunderstand the role of the judge in family law proceedings. They believe that the role of the court is to mete out justice. That is, they believe, once the court hears all of the awful, despicable, horrid things his or her spouse has done, the court will decide everything in his or her favor. They also can believe that the judge will punish misdeeds that occurred during the marriage or the divorce. Actually, in this age of no-fault divorces, this is rarely the case.
The role of the court in a family law case is to end the dispute between the parties. The ideal situation arises when equity and justice are realized in ending a dispute. However, the main goal and design of the court is to simply end the hostilities. This usually means granting a divorce to the couple. Therefore, the judge only wants to hear those items that are necessary for him or her to grant the divorce. The judge is not going to care who did what to whom. As long as it wasn’t a criminal act, it probably is not relevant. The judge is also normally under severe time and resource constraints. Arguing about who gets the food processor and who get the espresso machine, for example, will normally be considered a waste of the court’s resources.
Issues That Might be Decided by the Judge
Even if you decide to go to trial, you don’t necessarily have to leave everything up to the judge. If you and your spouse can reach an agreement on some issues, these will not be part of your trial. Even a partial agreement is better than no agreement and will reduce the costs of your trial and possibly the animosity between you.
Depending on what you have been able to agree on, you can ask the judge to decide one or more of the following issues.
- Is legal custody (i.e., decision-making authority) to be joint or sole?
- If sole, which parent will have it?
- Is physical custody (i.e., where the children live) to be joint or sole?
- If sole, which parent will have it?
- What visitation/timesharing schedule will the parents have with their children?
- What is a parent’s correct income available for child support?
- What amount of child support should be ordered?
- Should child support deviate from the state guidelines?
- Is a specific asset or liability part of the marital estate to be divided or is it the separate property of one spouse?
- As of what date is marital property to be valued?
- What is the value of one or more assets in the marital estate?
- How are the assets and liabilities to be divided?
- Is one spouse in need of/entitled to alimony?
- Does the other souse have the ability to pay?
- What amount of alimony is appropriate?
- How long should alimony continue for?
Deciding What Witnesses You Need
You and your spouse will probably have to testify at your trial. Most of the time you will need additional witnesses to testify about facts beyond your personal knowledge or to provide some expertise to sway the court in your direction. To figure out what witneses you need, your attorney will identify the facts you need to prove your case. Then, with your help, your attorney will determine who can establish these facts in court within the parameters of the rules of evidence.
When expert witnesses, such as a real estate appraiser or forensic custody evaluator, are needed, it is sometimes possible for both parties and their attorneys to agree on one expert. This saves time and money. If you agree on one expert, you can reserve the right to secure a “second opinion” if the agreed on expert’s opinion is far different from what you expected. Some common issues and witnesses who can address them are listed below. You won’t necessarily need all of these witnesses for each issue. You and your attorney will need to decide which witnesses can best present your position and fit within your budget. Every witness should have a purpose for testifying, and the witness should know what purpose his or her testimony serves.
Choosing the Best Lay Witnesses
Your lawyer will rely on you to suggest lay witnesses. These are witnesses that are not being paid to conduct an investigation or evaluation and offer an opinion. Your lawyer will interview people you suggest and prepare them to provide testimony. Your lawyer may decide not to call all of them.
Your lawyer will decide what is important to establish the themes you have selected, and put on the best witnesses. Some people are better at testifying than others, and you want the best.
Your Children as Witnesses
Calling children as witnesses in a divorce is a bad idea. Children are inherently unreliable witnesses. Their testimony can change from night to day depending upon the way a question is asked. A child will tell you exactly what he or she thinks you want to hear. For example, if you ask a child in the presence of her mother who she wants to live with, she will respond, “Mom.” She will respond, “Dad,” in the presence of her father. Finally, and most significantly, forcing a child to provide testimony, even in the best of circumstances, will be a traumatic experience. The child will be pitted against one parent or the other. The enduring bonds between parent and child will be damaged and, consequently, the child will be damaged.
Preparing to Testify
Avoid Showing Hostility
Nearly every lay witness in a divorce trial, yourself included, is rooting for a particular outcome. As a result, you and your witnesses may bring a zeal to your testimony that can be counterproductive to your case. For example, you, or one of your witnesses, may exhibit enmity for the other side, or opposing counsel. Notwithstanding your personal feelings, allowing anger or dislike of the other side or opposing counsel to bubble over in the courtroom is going to hurt your case and damage your credibility with the court.
Avoiding open hostility is a tall order for some witnesses, particularly those closest to you, such as parents and siblings. Sometimes your lawyer may decide to limit their testimony or keep them off the stand because, as much as they want to help, their testimony is more likely to hurt your case.
Follow These Three Cross-Examination Rules
Your spouse’s lawyer is entitled to question (cross-examine) you and each of your witnesses. The three key rules to follow during cross-examination are:
- Don’t debate opposing counsel.
- Remain calm. Do not lose your temper.
- Keep your answers short and focused on the question asked.
Avoid Debate with Your Spouse’s Lawyer
Being combative with opposing counsel will get you eaten alive. No matter how smart or clever you might be, entering into a verbal battle with even the worst of lawyers is not going to end pleasantly. Acombative lay witness will lose credibility with the court, and most likely will not be able to weather the storm unscarred.
You and your witnesses should keep it simple and maintain a calm demeanor. This will do the most good for your case and will have the added benefit of keeping cross-examination short, thereby minimizing the time spent in an uncomfortable situation.
Keep Your Answers Short and Focused
Keep your answers to cross-examination questions short and crisp and avoid long-winded narratives.
All too often, witnesses think too much. When asked a question, they start a mental process that usually leads to disaster. “Why is he asking me this? If I say this, then he might ask me that next. Then he’s going to ask about that, which I really don’t want to talk about. I’d better try to explain this, so that he will understand/like me/ believe me/be convinced I am or my friend is a good guy, and his client is very bad. But what happens if he doesn’t ask me that later? I’d better say it now just to be sure he gets it. All right, what was the question again?” Don’t let your mind run away with you like this. Focus on the question being asked, and answer the question asked, in as few words as possible.
Anticipate These Trick Questions
You and your witnesses can expect to be asked certain “trick” questions by your spouse’s attorney. For example, a party’s mother (or other relative or friend) will probably be asked, “Mom, you’re here today to help your son, correct?” The correct answer to that question is, “I’m here to tell the truth.”
Also, you and your witnesses will likely be asked if they talked to your lawyer about their testimony, and if your lawyer told them what to say. There is nothing wrong with talking to your lawyer about your testimony. Answer “yes,” to that question. Tell the judge what your lawyer told you to say, which should be: “The truth.”
20 Tips for Good Testimony
By following these suggestions when you testify, you can contribute to the success of your case. These tips will work, both for you, and your witnesses.
- Tell the truth. You can do no greater damage to your case than not telling the truth. No matter how damaging you might think the truth to be, it is never as damaging as a lie.
- Be yourself. Do not attempt to portray yourself as someone you are not. A lack of sincerity is almost as devastating to your case as not telling the truth.
- Look the judge in the eye when you are testifying.
- Watch your body language as sometimes people who are not telling the truth look away, look up, or take a protective stance. The judge will notice.
- Pauses are okay. If you are nervous, it is okay to say out loud that you are nervous, once.
- If you realize you have made a mistake, correct it. No one has immediate and perfect recall of every fact or conversation. If you are confronted with a document or some prior statement that conflicts with your testimony, do not be afraid to say “I made a mistake.”
- When answering a question from the opposing counsel, take a brief pause to give yourself a moment to think. This thinking time will also give your lawyer a chance to object to the question before you answer it.
- If your lawyer objects to a question, wait for the court to rule on the objection. Don’t answer the question unless the court overrules the objection and tells you to answer.
- Listen to the question. Let the questioner complete the question before answering. The court reporter can only take down what one person is saying at a time. If you are talking over the question, the reporter will have a more difficult time. Also, you might think you know the question being asked, but find out it is not what you thought.
- Be sure you understand the question. Never be afraid to say, “Could you repeat that? I don’t understand your question.” Never answer a question you don’t understand.
- Focus on answering the question that you are asked. Do not attempt to analyze why you are being asked this question, or what the next question will be, or what you will be asked in 10 minutes. Answer the question asked, as if it were the first, last, and only question you will be asked.
- Don’t guess or estimate unless you are asked to do so. If you know the answer in approximate terms, i.e., “How much is in your checking account today?” be sure to say “I’m guessing” or “approximately” in your answer.
- Answer the questions asked in as few words as possible to give a truthful answer. The more you talk, the more you will be asked. Keep it short; less, in this case, is more. The best answers are: “Yes,” “No,” “I don’t know,” “I don’t remember.”
- Do not volunteer anything! The more you volunteer, the more trouble you will find yourself in, particularly if you offer answers that you aren’t really sure of in your desire to appear “helpful” to opposing counsel. Similarly, avoid offering excuses or explanations, which only lead to more questions.
- Take your time; talk loud enough for everyone to hear you.
- Be courteous. Do not argue with the other lawyer and DO NOT LOSE YOUR TEMPER. The opposing lawyer may try to upset you. If you feel yourself getting upset, ask your lawyer to ask for a break. You may feel a natural inclination to convince your spouse’s lawyer of why you are right and he or she is wrong. These attempts will always be unsuccessful and will only generate more questions.
- Do not be afraid, look at the person who asks you the questions, and be as positive as you can. Just tell your story in your own words and to the best of your ability.
- Be sincere, straight forward, and direct on all your answers to the point as much as is possible.
- Do not be ashamed to tell the whole relevant story. This is your one day in court. The outcome of the case may well depend upon the facts you and your witnesses reveal to the court.
- If the judge asks you a question directly, know that the answer is very important to the judge. If you have any concerns about how to answer, ask the judge if you can first consult with your lawyer.
YOUR DAY IN COURT
What to Expect
When your case is called for trial:
- You will take a seat beside your lawyer at the counsel table and this will be your place during the trial.
- Your lawyer will give a brief opening statement of the facts and basis of your claims to inform the court about your case. The judge is most interested in what you want, what you need, and why.
- The Petitioner (person initiated the divorce and filed the first papers with the court) puts on his or her witnesses first and then the other party, the Respondent, does the same. Witnesses will be called, sworn, and testify. The attorney for each side will have the opportunity to question each witness as well as both parties, the Petitioner and the Respondent.
- If you are the Respondent, you may be called for cross-examination (this means you can be required by the opposing attorney to testify under oath) and you may be called as the first witness.
- After the witnesses testify, your lawyer and your spouse’s lawyer will make an argument to the judge. Sometimes briefs or memoranda are submitted by each lawyer.
- The judge may decide the case immediately or may take it under advisement (study) or may wait to decide the case (enter a judgment) after the memoranda or briefs are submitted.
How to Behave in the Courtroom
Your demeanor and conduct, even in the waiting area and especially in court, is most important. How you act in court can have more impact on your case than what you say. Communication is 7% the words you say and 93% your tone, facial expressions, and body language. Be in control at all times. If you are having difficulty, let your lawyer know you need a break.
Turn off all electronic equipment and get rid of any gum you were chewing before you enter court.
Sit up tall in your seat. Do not fidget. Set up your space with a pad and pen to write notes. Do not cross your arms or legs as protective stances can make it look like you are trying to hide something. Keep your posture open.
Do not make faces or gestures while you are giving testimony or listening to testimony from others. Do not wink at the judge, mouth “no,” “yes” or “he or she is lying” or say this out loud. Again remember your behavior is more important than what is said.
From time to time during the course of the trial your lawyer will consult with you and you should inform him or her by a whisper or a note of anything you feel he or she should know about. Ask your lawyer to ask the court for a break if you have a lot to talk about.
Court is formal. There are rules of decorum. You may speak only in response to questions. Do not speak out. Do not speak directly to the judge without permission, and then ask your lawyer, not the judge, for permission first.
As a party to a divorce trial, you will be under an emotional strain. Your lawyer will attempt to minimize it whenever possible. However, since your lawyer does not have control over all the factors that make up a case and since human nature is unpredictable, your emotional strain may increase before it begins to subside.