Depositions: Tips and Tricks in a Chicago Family Law Case

While many people go into Chicago divorce, parentage, or post-decree proceedings hoping that things can be resolved quickly and amicably, often that is not the case and parties are forced to head toward trial to resolve their disputes. One of the key components in preparing for trial is sitting for and conducting depositions. If you, or someone you know, is getting ready to either be deposed or sit in on the deposition of an Opposing Party, here are a few tips and tricks to prepare you for what to expect:

A deposition is a form of questioning, much like what you would expect in a courtroom, that occurs outside of court and outside of the presence of the Judge. One of the many purposes of a deposition is for your attorney and Opposing Counsel to glean some insight into what your testimony would be in Court on the day of trial and better prepare for trial. During a deposition, Opposing Counsel will ask the deponent a series of questions in order to gain insight into every detail of a deponent’s story and argument so as to not be surprised at trial. The person being questioned in a deposition is often referred to as the “deponent,” and they are asked a series of questions by either Opposing Counsel or their own attorney. While this line of questioning does occur outside of the courtroom, there are many similarities between testimony given at trial and testimony given during a deposition. For example, like in court, your deposition testimony is:

–         Given under oath. You will be sworn in by the court reporter prior to the beginning of the questioning;

–         Your testimony can be questioned through cross-examination; and

–         Your testimony gets recorded in a written transcript by a court reporter.

A deposition can also be used as an information gathering tool. As you are likely aware, during the litigation process you underwent a period of discovery in which you were required to either provide documents or other written responses. Often, attorneys will use a deposition to gain clarity into any inconsistencies or ambiguities in your discovery responses. This will help aid the attorneys in better understanding whether certain discovery responses are helpful or harmful to their overall case.

As mentioned above, the goal of a deposition is for the Opposing party (through counsel) to get a deponent sharing information that they can use in trial to help their case. Therefore, it is highly recommended that when you are being deposed you are careful to only answer the question being asked of you as concisely as possible and to be careful not to volunteer any extra information. This can often be tricky for people who have never sat for a deposition and let their nerves get the best of them. If you are worried, ask your attorney for a prep call to go over any of your fears and concerns prior to the deposition.

At the start of each deposition, the attorney conducting the deposition (i.e., the attorney asking the deponent the questions) will usually begin the deposition by explaining what the deposition is, what the deponent can expect during the deposition, and laying some basic ground rules. The purpose of this brief introduction is to allow the attorney taking the deposition to try and put the deponent at ease (aka build a rapport with them) so they will more freely divulge information which can be useful against them at trial. This is one of the many reasons it is important to adequately prepare for your deposition so as not let the other attorney get the best of you.

Another reason it is important to prepare for your deposition is that the testimony at your deposition can and will be used to discredit you during trial. For example, if your testimony at trial differs from your testimony given during the deposition, the Opposing Party will use this to draw the court’s attention and try and label you as untruthful or not credible.

Another part of a deposition that you should be aware of is the introduction of exhibits. Often during a deposition, the questioning attorney will rely on and call your attention to different documents which they believe are relevant to the case. These documents will then be marked by the court reporter as exhibits and made part of the transcript. Once an Exhibit has been marked the questioning attorney may use the document to conduct a series of questions either about the document, the context of the document, or anything of this nature. It is important that when an Exhibit is introduced, and a document is pulled up that you are very clear with the questioning attorney as to whether you have ever seen or recognize the document as you do not want to testify to the contents of something unfamiliar to you.

You may ask yourself, can the questioning attorney asK anything they want? Are there any limits? Do I have to answer every question? The quickest answer is yes, yes, and most of the time. In a deposition, the questioning attorney is allowed to ask any question they want that is relevant to the case. However, your attorney may insert themselves into the questioning as they deem appropriate to either offer an objection or further instruct you. If your attorney offers an objection, the objection will be noted for the record but you will still be required to answer the question. However, if your attorney deems a line of questioning to be either inappropriate they may instruct you to not answer a question. In the event there is a dispute between counsel, the matter can be resolved in one of three ways:

–         Certifying the question. If a witness refuses or is instructed not to answer a question, the questioning attorney may continue the deposition and put that particular question on hold for a judge to later make a ruling on.

–         Calling the Judge. If a dispute arises at any point during a deposition, the attorneys may call the Judge directly to help resolve the dispute on the spot.

–         Terminate the deposition. Either attorney, at any time, may terminate a deposition until the dispute is resolved and the deposition is then rescheduled for a future date/time.

So, what happens when the attorney conducting the deposition is done? Well, this is the chance for your attorney to step in and ask any questions they deem appropriate to either rehabilitate or clarify any of your earlier responses. Unlike the questioning attorney, your attorneys’ questions are going to be limited to the topics covered by Opposing Counsel and is often used to help aide in clarifying any responses which could be deemed harmful to your case. After this line of questioning is done, the original attorney conducting the deposition will be given one final brief moment to ask any final follow-up questions related to your attorneys’ questions prior to wrapping up the deposition.

You may be asking yourself, well, how long do depositions usually take? All depositions are given three (3) hour time slots, however, depending on the facts of the case at hand and the topics to be covered, a deposition could be shorter. While the deposition is given a three (3) hour time slot, this time is for questioning and does not take into account time for breaks, of which there can often be two or three 5 minute breaks. When a break is asked for the clock on those three (3) hours is stopped and then resumed once questioning resumes. The time is kept track of by the court reporter to ensure everyone is given the fair amount of time.

A few other little tips and tricks to help you in the deposition process:

1.       Pause before answering a question. Never rush to give an answer as, like mentioned above, you want to ensure your answer is as concise and accurate as possible.

2.      Only answer questions you fully understand. If you do not understand a question, do not answer it. Instead, ask for clarification until you do understand the question.

3.      Never guess. If you do not know with 100% certainty say you do not know. It is up to the questioning attorney to determine what to do next.

4.      Never speak in absolutes (i.e., “never”, “always”).

5.      Stay calm.

6.      If you need a break, ask for it.

7.      All conversations with your attorney whether during the deposition during a break or prior will remain confidential. Don’t be afraid to speak to your attorney on the day of your deposition as needed. They are there to help you through this.

The most important thing to remember during your deposition is to be polite and not confrontational, answer the questions as concisely and accurately as possible and above all do not guess.

If you have been subpoenaed to give your deposition testimony or you are being asked by the court if you would like to conduct a deposition, the experienced divorce attorneys at Ward Family Law are here to help you get through it. Please do not hesitate to contact us.