I’ve learned over the years that therapists dread the thought of having to testify.
That makes sense. No one likes to testify. Attorneys would hate it if they ever had to testify, but they get to ask the questions instead of answering them, so they think testifying is great.
Testimony happens at two different times during a case. First, during the information gathering phase (i.e., discovery). Second, at trial.
Let’s talk about depositions.
As a part of discovery, attorneys are able to take depositions. During a deposition, the person testifying will be put under oath and the lawyer will ask questions relating to the case. A court reporter will record the questions and answers and create a transcript of the testimony.
There is no judge or jury present during depositions. Those present are usually (1) the person testifying, (2) the attorneys, and (3) the court reporter.
If a case goes to trial, a deposition may be used in Court, particularly during cross-examination to show answers during the deposition are different than given previously during the deposition. In other words, it’s used to catch people when they lie.
The Lawyer may ask questions that may seem as if they are none of his or her business, that are embarrassing, and that would not be admitted in court. They may not be admitted, but the Court allows this sort of questioning because it may lead to information that can be used at trial.
Since you are a therapist, neither attorney represents you during the deposition. This means you will not have an attorney on your side unless you bring one with you to give you guidance.
I suggest you do exactly that: bring an attorney who is familiar with your ethics rules, as well as divorce and family law, with you to the deposition.
If you do bring an attorney, your attorney may tell you not to answer a question. If this happens, don’t answer the question. Unless specifically instructed to not answer, however, assume that you need to answer all questions asked.
You should answer all questions in an honest and straightforward manner.
You would not deliberately lie, but it is important that you do not testify to something that is inaccurate or exaggerated. For this reason, please listen to each question carefully and be sure you understand the question before answering.
If you do not understand the question, ask the other lawyer to rephrase it so you do understand the question, then answer. If you do not know the answer, say “I don’t know.” Don’t guess at the answer. If you don’t remember, say, “I don’t remember.” No one can remember every detail. However, you will remember the important things and should give an honest and full answer to questions on these points.
The lawyers will probably be friendly and will not bully you. This is because lawyers know the friendlier they are the more they can get people to say. And the more people say, the likelier they are to put their foot in their mouth.
To keep that from happening, do the following:
- Listen to the question, understand the question, and take a second to think before beginning your answer.
- Answer the question truthfully and with as few words as possible.
- Stop talking.
Do not volunteer anything. Give a full and complete answer to the question asked, but do not anticipate any other question or attempt to answer a question not asked.
If you are asked a yes or no question, answer yes or no. Do not elaborate. If a question requires more than a yes or no answer, then answer with more than a yes or no. If the attorney tells you to limit your answer to yes or no, and you feel you cannot provide a fully accurate answer by saying yes or no, say: “I cannot accurately answer your question with a simple yes or no.”
Both attorneys will ask you questions during the deposition. Remember, neither attorney is your attorney. You need to bring your own.
If either lawyer is rough or disrespectful in any way, do not lose your temper. Losing your temper will make it harder for you to answer questions accurately and succinctly.
Lastly, speak loudly and clearly enough that everyone can hear and understand you. You must answer out loud, saying “yes” or “no,” because a nod of your head cannot be recorded by the court reporter transcribing your testimony.
BULLET-POINT SUGGESTIONS FOR EFFECTIVE DEPOSITION TESTIMONY
- Tell the truth.
- Dress professionally.
- Treat all persons in the deposition room with respect.
- Never lose your temper.
- Don’t be afraid of the lawyers.
- Don’t trust the lawyers. Bring your own attorney who is familiar with your ethics rules to help you.
- Speak slowly and clearly.
- Answer all questions directly, giving concise answers to the questions, and then stop talking.
- Never volunteer any information. Wait until the question is asked, answer it, and stop talking.
- If you can answer a question with a yes or no, do so and stop talking.
- If you feel you cannot provide a fully accurate answer by saying yes or no, say: “I cannot accurately answer your question with a simple yes or no.”
- If you don’t know, say, “I don’t know.”
- If you can’t remember, say, “I don’t remember.” Don’t guess.
- Don’t answer a question unless you have heard it and clearly understand it. If you have to, ask that it be explained or repeated.
- Don’t interrupt the other attorney when he or she is asking a question.
- If an attorney objects to a question, stop talking. After the attorneys talk about the objection, you will be informed whether you need to answer the question.
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