I don't even know where to start...deposition looming

[openskyblue]

I've already had to submit everything for discovery. So they know all I have to use against him (less than 30 pages). I think this is why he's submitted mountains of paperwork - so every aspect of my life is fair game.

It's the volume of information -- it's the quality and content of it. Frankly, from what you have described about your stbx -- bipolar diagnosis (?), keeps unlocked guns in the house, history of instability -- I think you would have to be caught stealing a car before you'd look "worse" than he does to a judge.

The lawyer will very likely ask you personal information, so you should be ready for that. I'd recommend that you practice with someone answering personal questions that you think may hang you up. Ideally, your lawyer should be practicing with you.

My heart goes out to you. I was married to my exhusband  (NPD, bipoloar, sociopath) for 20 years, and i know how "they" can get in your head and make you feel afraid, well, just all the time. You can do this! It just takes growing a thick shell. The litmus test will be this: The more your ex's lawyer gets angry, frustrated, and flustered with your short answers, the more you will know you are winning.

[Poised]

Hi, WH

I second the comment that a deposition is not a trial.  Focus on answering the questions that are asked in a truthful manner, and try not to tie yourself in knots about how your answers will play  into your ex's grand legal strategy. (Hint: if he's producing photos of what's in the refrigerator, his strategy isn't all that.)

Let me offer some practical (not legal!) advice:

I'm not sure. I don't know. I don't remember. Maybe. Perhaps.

These are all acceptable responses to questions at a deposition. Witnesses are often all too eager to be agreeable, or worried that they will come across as stupid or incompetent, but the answers above (if truthful) are the among the best and safest answers to give.

Quick example:

Q. Are any condiments in your refrigerator expired?

WH #1: Yes. (But this question is in the present tense. Do you know this for a fact? Did you recently review the contents of your frig and deliberately leave expired products? Probably not.)

WH #2: No. (The question broadly asked about "any" condiments, though. Are you 100% certain? Why are you so certain? Those follow-up questions will be asked, so unless you cleaned out the frig the weekend before, no need to lock yourself in with a definite answer.)

WH #3: I'm not sure. (If truthful, this is a great answer and very plausible. Because really, how many people know what's lurking in their refrigerator?)

A few practice strategies:

Ask your lawyer if she has a transcript of a previous deposition taken by your ex's lawyer, and if her assistant can copy and paste the questions asked for you to review.

Write down the questions you are really worried about being asked. Write your responses to each and then run them by your lawyer.

Sit down with your lawyer, a friend who is a lawyer, or (in a pinch) your most obnoxious friend and request that she spend and hour asking you questions.

At the deposition:
1) Take breaks every hour to refocus. Take at least an hour for lunch. Bring a protein bar or other nutritious snack to eat late afternoon if it goes that long.
2) Always wait a second or two before answering, to make sure the question is finished and your lawyer isn't going to object.
3) Listen to your lawyer's objections, because she is telling you there is a problem with the question. Sit down with her beforehand to understand what her objections mean.
4) If you don't understand a question, or didn't quite catch it, ask the court reporter to read it back.
5) If you don't like a question, or the other lawyer's tone is getting you upset, ask the court reporter to read it back. That buys you time, takes the emotion out of the equation, and throws off opposing counsel's rhythm.

You are going to be fine.  Understandably, you are stressed. But if  you are an honest person acting in good faith (which is how you come across in your posts), you will do just fine in a deposition.

Good luck!  We're all here for you if you need a little more encouragement as you get ready.

[hhaw]

IME psych evaluations, and welfare checks in the home aren't concerned with expired condiments in the fridge.

All they're looking for is...

FOOD IN THE FRIDGE....
   
NO FECES ON THE FLOOR, home is safe for children, etc.

If you want to go above and beyond, take pictures of fire extinguishers in your home, that the kids can operate too, and include them in your evidence. There are some that are like spray cans, and they're not that expensive.   At deposition, ask if the father has fire extinguishers in place,  has he stopped keeping loaded weapons out in the open at his residence, etc.... is he still on his medications for whatever it is he's suffering with..... just touch base on everything he's struggled with, and is likely still struggling with. 

No one is going to come down on your fore expired condiments, for heaven's sake.  This isn't about that.  This is about the PD driving you over the edge, and robbing you of your ability to think straight. 

HE's way behind the 8 ball in this.  No Judge, in their right mind, will look at the evidence, and give this guy shared custody, IME.  Judges like to keep the status quo in place.  They like the parent with control to support the child having relationships with all family members, and you seem to be doing a great job of that.

[openskyblue]

It's the volume of information -- it's the quality and content of it. Frankly, from what you have described about your stbx -- bipolar diagnosis (?), keeps unlocked guns in the house, history of instability -- I think you would have to be caught stealing a car before you'd look "worse" than he does to a judge.

Sheesh! I meant to write "It's NOT the volume of information, it's the quality and content of it." If my head weren't attached...

[aybabtu]

I thoroughly got under opposing councils skin a few times in my deposition. He asked me why I "abandoned my wife and child to go to work and work late some nights" (mind you I worked from home) I turned it right back on him and said well I suppose since you are an attorney and have to work long hours, you "abandoned your wife many times."

Remember your audience in a deposition is the court/judge, not opposing counsel. I chose not to look at the OC and focused on directing my voice to the reporter. That also is a play there.

Be brutally honest, don't sugar coat things. For instance, opposing counsel asked about a small hole in the wall. I turned it around and started to talk about all the physical abuse that was perpetrated on me in front of my child, including unlawful detainment to the extent I could not walk or call the police. (OC decided to move on...)

OC will try to intimidate you over some cherry-picked small items, I forgot to claim a small "bonus" that was listed on one of my paystubs (it was under $10)... OC spent 30 minutes talking about it.

They will also try to fluster you, like cherry-picking some number on a tax form. Again, spent 30 minutes on this.... I'm not a tax professional so I said so. I was able to find how the number was calculated and it was done properly.

[Whiteheron]

So, does the judge look over the deposition transcript, or is the outcome of the deposition (assuming they "find" something juicy  ) used at trial by opposing counsel? So in a way, is the deposition a way for opposing counsel to grill me about every microspeck of my life without the judge present so as not to waste the judge's/court's time?

[aybabtu]

So, does the judge look over the deposition transcript, or is the outcome of the deposition (assuming they "find" something juicy  ) used at trial by opposing counsel? So in a way, is the deposition a way for opposing counsel to grill me about every microspeck of my life without the judge present so as not to waste the judge's/court's time?

In my particular case, the judge did read the transcripts. What tends to happen is OC will take snippets of your testimony and use it in various ways at hearings either to question your credibility or to impeach you (catch you in a lie). I would highly advise you go into a deposition with your own attorney, s/he can object to questions, keep in mind there is no one there to rule on the objection, it's there so if that part is used later the judge can hear the objection and rule on it.

It's also used as another component of discovery, depending on where you live, rules of discovery may vary substantially. Where I am from, the rules are pretty open, meaning they can ask about pretty much anything and request pretty much anything.

Your attorney does have the opportunity to cross-examine you. Some attorneys choose not to do a cross of their own as it can open Pandora's box. The less you talk the better, keep it short, and truthful.
 

[Poised]

Hi, WH

To answer your question, the judge almost certainly will not read the entire deposition transcript. A good judge will read the pretrial briefs (which are about 10-20 pages), but a depositition transcript will run 100+ pages. There simply is not time for a judge or his or her staff to read it, plus a lot of it will be irrelevant and a waste of time.

Check with your lawyer, but in most places deposition transcripts will not be exhibits at trial and can't be used at trial for any purpose other than impeachment.

What that means is that if you say one thing in your deposition and then say the opposite at trial, you will be confronted with the differing testimony to call your credibility into question. (The same goes for your ex or any other witness who has been deposed.)

So here's a silly example.

OC at deposition: "Ms. WH, have you ever failed to discard any condiments by their expiration date?"

WH: "Yes, the ketchup had expired."

OC: "What about the mustard?"

WH: "Yes, that too."

At trial, questions are not so open-ended and are designed to force the witness into a specific answer.

OC at trial: "Ms. WH, is it true that you failed to discard ketchup and mustard by their expiration date?"

If you say yes, the deposition Q&A doesn't get used in the courtroom, because there is no contradiction.  If you say no, OC will hand you the deposition transcript, direct you to the Q&A about condiments, and ask if you were asked those questions and gave those answers. That's it.

The deposition is a way for lawyers to find those few nuggets of information that they deem useful enough to present at trial.

[openskyblue]

 

Fine example! 

And also shows, why sticking to simple "yes" or "no" answers are valuable. In this case, WH could have left off the added info as to what had expired, mustard or ketchup. That was added information beyond what was required -- and an avenue where you could be tripped up later.

We all tend to want to be helpful and complete in our answers, which is fine in the regular course of life. But in a deposition, it's not.

[pushit]

I'll add my $.02 here.  I haven't been deposed in a family law case, but I have been deposed and been an expert witness on the stand in a trial.  I learned a lot from that experience, and what the others are saying above is accurate. 

If I had it to do over again, I would have kept my answers shorter and more vague in the deposition.  Don't commit to anything you don't have to (you do have to be honest and answer the questions that are asked though), and play your cards close to the vest.  There were a number of things that I proved the opposing counsel wrong on in the deposition, and not surprisingly those were never mentioned while we were in court.  On the other hand, some of the other items where the OC saw a weakness in my statements during the deposition got brought up numerous times and were highly focused on in trial.  Knowing what I know now I should have kept more quiet in the deposition, easily shared more information on some things once we got to trial, and put some bigger holes in the case the OC was trying to build.

Unfortunately I wasn't well prepared by our own attorneys when I went through it, but it was a work situation where I had nothing at stake so I'm thankful for the experience now.

[hhaw]

One thing to watch for is opposing counsel buddying up to you in an overtly friendly manner.... to get you to smile, and laugh and enter into easy banter.... then they'll use that easy banter against you, or say you must not be too upset about A, B, and C, bc of your demeanor.

This is business.  The mission is to get through the deposition without tripping yourself up, or giving away too much of the game.  Keep your cool, and answers short.

Eye on the prize.  Get through it.  No friendly banter.  Only the burger, no bun.

[sevenyears]

  You can - and will - do it.

And, try not to talk about condiments if you can! In my trial, I explained stbxh upd's rules and gave his insistence that food be consumed in order of expiration date as an example of how he forced me to do things his way. The judge disregarded my testimony about his rules and how he forced me to comply and said that his insistence about food consumption is sound and logical  Lesson learned!

Be concise and focus on the end game. As Hhaw said: burgers. 

[Whiteheron]

*despair*
aaaah! I will take notes from all of these suggestions- that will help. I can do this. I have proven myself to be stronger than I ever imagined. For the kids.

Thank you all for your valuable suggestions and comments. I hate this so much. stbx knows I hate this - I like to fade into the background, and now I will be front and center, an open book, so to speak. He can probe and ask whatever he likes (through his L). Because he is in charge, not his L.

I've been through worse living with him. I know deep down, I can do this. It's the fear of the unknown - I have no freaking clue what his L will ask me about. His L already tries to be chummy with me, I try to BIFF it as much as I can. I'll have to sit down and brainstorm anything stbx may think he can use against me...of course I'll be blindsided by some nonsense I never would have dreamed of. I can only pray I handle it with grace and poise. Court is coming up soon, then I will really start to worry about the deposition. 

I will have the notes from this thread, I'll ask my L friend to practice with me, and I'll practice with my L. I'll also go through my journal ahead of time so it's all fresh- probably the part I'm dreading the most. I prefer to stick my head in the sand so I can take care of the kids.

[Penny Lane]

You CAN do this! I think your ex is doing this deposition in large part to bully you. But I think what he'll find is that you've already grown a lot stronger from being apart from him, and you're not going to cave just because he's trying to abuse the court system to go after you. The deposition is just one day of unpleasantness. But it can't be as unpleasant as the worst day of being married to him, right? And you survived that.

When I get really stressed about not knowing what BM will do next my therapist always tells me "well you know she's going to do something unexpected, right?" Can you think about it like that? You don't know exactly what he'll ask, but you know it'll be unexpected, irrelevant and probably embarrassing or insulting. You can plan for that even if you don't know what the question is. Plan to take a deep breath, wait a beat to give your lawyer a chance to object and you a chance to compose yourself and think of the most minimal way to answer the question. If you can't think of anything ask the lawyer to repeat the question. Take another deep breath and give your answer as emotionlessly as you can.

YOU CAN DO THIS!

[openskyblue]

Okay, my last little piece of advice:

PAUSE

As in, pause before every answer you make. Don't be in a hurry to answer. Instead, repeat the question you were just asked in your head (or ask the court reporter to read it back). Then, make sure you are answering THAT question -- and that question only.  It's okay to take your time. You are running this show, not the lawyer asking you the questions.

[Whiteheron]

Yes, Pannylane, I do feel like this is his chance to bully me, since he hasn't been able to really get to me since I left the house. I will be there, a sitting duck (but well prepared with my secret armor - poise and truth).

Opensky - that's going to be tricky for me. Pausing. I'm used to spilling whatever as fast as I can just to get the attention off of me. It will feel awkward, but I will start practicing at work. Maybe even have my boss (who is also a close friend and knows the story) practice with me.

[hhaw]

Pretend you're speaking to a young child you don't want to upset.  That should help naturally moderate tone, and cadence.

[openskyblue]

Yeah, practice your pause! It will serve you well.

[Liftedfog]

I am so angry for you.  The system is so f***in broken when a good, stable and loving mother has to spend a shitload of money to defend herself against her sole purpose in life to protect her kids.    The system takes advantage of families like this and will squeeze every cent until she has nothing left for her children.   It is obvious the ex is not sane and not fit to parent these children.      You will do fine.  Why?? Because you are not crazy.   Stay strong my cyberfriend.   Nobody can prove you are not fit no matter what tactic ex tries.   Let him look like an idiot.    I pray you get a sensible judge that sees right through his crap.   Yup.  Instead of you having fun times with the kids you are having to get stressed preparing for court.  Exactly what the ex wanted.  Karma is a bitch.  You will do great.  Big hug. 

[openskyblue]

 

I agree with LF — the system is woefully inadequate and domestic court and laws haven't advanced very far in terms of understanding mental illness. However, the law and courts do offer an chance for remedy. And to get it, you must take almost every bit of emotion out of yourself to get the best deal for yourself and your kids. Yup, it's infuriating that you have to go through deposition — but it's also an opportunity for you to win and advance a step towards your goals.

You win by being strategic and tactical about exactly how little information they can get from you that they can use against you later. That's really all you have to concentrate on now. And you can tee up other things you WANT to go into the record, like your mentally ill spouse having an unsecured gun in the house.

My recommendation is to spend time deciding exactly what you want out of the legal process and going for that. Don't let some bully of a lawyer get in your way. You are mighty — and smarter than he is. If he was so smart, how did he end up with your ex as a client. You got this!