Friday, September 24, 2010

Some Free Resources on Preparing for Your Divorce or Other Family Law Matter Deposition

Here are some links to video clips one can you review in preparing for a deposition in a family law case. Most of these clips deal with personal injury cases (because these are among the most common cases involving depositions), but knowing this in advance, you should find yourself able to differentiate between injury-specific advice and advice that pertains to the deposition of one being deposed in a family law case, particularly given that you’ve already been deposed once before in this case and by the same attorney. – cheesy, but a good summary

Here are my personal notes on preparing for a deposition:

How to Testify Successfully at Your Deposition


1. Follow the Golden Rule(s)

2. Always Tell the Truth.

3. Simply Telling the Truth Is Not Enough Sometimes. It is essential for you to understand the purpose of a deposition and the relevance of your responses to the ongoing litigation.

4. Your Deposition Can Only Hurt You. Repeat: Your Deposition Can Only Hurt You, so don’t try to make your deposition your personal soapbox. Don’t even think about it.

5. Be Prepared

6. Understand the Question

7. Think Before You Speak

8. Do Not Put Words in Your Own Mouth. Do Not Let Opposing Counsel Put Words in Your Mouth.

9. Mistakes Happen; don’t let them send you into a tailspin

10. “I Don’t Know” And “I Do Not Recall” Are Acceptable Answers

11. Do Not Guess, Speculate, or Surmise in responding to a question.

12. Remember The Golden Rule—Tell The Truth

13. Only the Facts

14. Do Not Volunteer Information

15. Conduct Yourself Professionally and Maturely

16. You Are Never “Off The Record”

17. Know Your Role

Follow the Golden Rule(s)

Always tell the truth. This is imperative. While telling the truth may not necessarily limit your exposure or benefit your case, lying or playing fast and loose with the truth will undoubtedly increase your potential exposure and almost certainly damage your credibility.

Simply Telling the Truth Is Not Enough Sometimes. It is essential for you to understand the purpose of a deposition and the relevance of your responses to the ongoing litigation. The reasons for your taking deposition may be numerous. Understanding the reason for your deposition, as well as an in-depth understanding of the deposition process, will enable you to testify truthfully and intelligently.


Consider what that previous sentence means: your deposition can only hurt you. A deposition is taken for several reasons; it is therefore important to realize what a deposition is and is not. A deposition is not taken to exonerate the person or corporation being deposed. It is not your opportunity to “tell your side of the story,” “to get your licks in,” or “to set the record straight.” Simply put, your deposition can only hurt you. So do your best to minimize the damage.

1. One reason you are deposed is to learn your version of the facts—that is, to learn what you will testify to at the trial if called as a witness. This will enable the deposing attorney to prepare his or her case for trial.

2. Another reason is to develop impeachment[1] evidence and admissions against your interest. The attorney will attempt to elicit testimony favorable to his or her client, which is thus damaging to you. If your answers to the same questions you are asked in your deposition are materially different to those questions when asked at the trial, the attorney will read back portions of your deposition testimony and try to impeach you (that is to say, make you out to be a liar).

3. Most important, a deposition is not your chance to explain your side of the story. All too often, as a participant in a lawsuit, you will attempt to convince the opposing party that its case has no merit. You may be eager to explain your actions or explain why the opposing party is in the wrong. !!Stop!! You will have an opportunity to explain your story at the trial: a deposition is not the time or the place to tell your side of the story or set the record straight as you see it. Repeat that to yourself orally: A deposition is not the time or the place to tell your side of the story or set the record straight as you see it. Ignore this advice at your peril.

At the trial, your attorney will ask you questions to bring out your testimony in a favorable light. While it may be frustrating to restrain yourself from “telling your side of the story” or “setting the record straight as you see it” at the deposition stage of litigation, it is essential for a successful deposition and favorable resolution of your involvement in the lawsuit.

Understanding the Deposition Process

You can expect a deposition to proceed as follows:

A deposition is taken in an informal setting. It is usually in an attorney’s conference room. There is no judge. There is plenty of water to drink. If you need to get up to use the restroom, you may. The attorneys may even be very friendly. Do not be fooled. The opposing attorney is looking for chinks in your armor to stab you in the soft underbelly, no matter how charmingly he may slip in the knife.

Power Struggle. At the outset of a deposition, the examining attorney will attempt to establish control.

This can be done in several ways.

An attorney will often try to befriend you through small talk or humor, before and during the deposition. But remember, this is an adversarial system. The opposing attorney is never your friend.

On the other hand, control may be established through intimidation. If you are prepared for your deposition and are familiar with the ins and outs of the deposition process, you will not be intimidated. If you are unsure about any aspect of your deposition, then please, for your own sake, talk to your attorney! Don’t worry about looking foolish or unsophisticated—your attorney is there to educate you and polish you up. No question is too silly to ask. Questions unasked are questions unanswered; that is to say they are unanswered until the opposing lawyer asks them and you look like a deer in the headlights. Ask in advance your stupid and embarrassing questions of someone who’s looking out for you, please.

Admonitions. Your deposition will typically begin with the deposing attorney explaining the ground rules of a deposition to you. These are called admonitions. If you are unfamiliar with these, you will be relying on the opposing attorney for an explanation—the attorney is therefore in control. To avoid this, it is important for you to understand the rules before the deposition begins.

The following is a typical list of admonitions that are given by the deposing attorney at the beginning of a deposition. After each explanation is given, the attorney will likely ask if you understand:

• “The oath you have been given is the same oath that would be given in a court of law and comes with the same penalties of perjury.”

• “The court reporter is taking down every word that is spoken—the reporter cannot transcribe nods or headshakes. Also, a court reporter can only take down what is being said by one person at a time. I therefore ask that you wait until I finish my question before you give your answer, and I will provide you with the same courtesy.”

• “Your attorney may make objections to my questions in the course of your deposition, but as you can see, we have no judge here to sustain or overrule objections, so, except in rare situations, you will need to answer each of my questions, regardless of whether your attorney objects to them or not.”

• “If you do not understand a question, please let me know. If you do answer my question, I will assume you understood and answered the question I asked.”

• “Please do not guess in response to my questions. I am, however, entitled to your best estimate. Do you understand the difference between a guess and an estimate?”

• “Your testimony will be transcribed into a booklet form. You will have the opportunity to review your testimony and make any changes you deem appropriate. You will then sign your deposition transcript under the penalty of perjury. If you make any substantive changes to your testimony, however, either your attorney or other counsel may comment on your changes at trial and it may adversely affect your credibility.”

• “I therefore request you give me your best testimony today. Is there any reason you cannot go forward with providing your best testimony today?”

• “Are you under the influence of any drugs, alcohol or medications that may affect your ability to understand and respond to my questions?”

• “Do you have any questions regarding the deposition process before we start?”

Listen to the particular admonitions that are explained to you by the deposing attorney. Be confident, however, that you already have an understanding of the deposition process and are ready for the challenges that lie ahead.

Be Prepared

A deposition will often be about an incident or incidents that happened a long time ago. It is critical to review all relevant records before your deposition.

You will want to have an understanding of the factual background giving rise to the lawsuit. In addition to being familiar with specific incidents, you will also want to understand the issues in the lawsuit.

Understand the Question

It is the questioning attorney’s responsibility to articulate intelligible questions. If you do not understand the question, say so. It is not your responsibility, however, to help the attorney formulate an understandable question.

It is the questioning attorney’s responsibility to learn the facts. You are not required to volunteer this information without being asked to educate him in this endeavor.

Furthermore, be wary of compound questions (two questions asked in the same sentence, such as “Did you or your partner steal the money?”; or “Tell me, Mr. Smith, how your wife managed to place the house up for sale without your knowledgeand how she closed on the sale without you being present.”).

If a question is too complex for you to easily understand and consider in your mind, it is too complex and ambiguous to answer. Remember, you are in control. If the question contains conjunctions (“and,” “or,” “because”), ask the attorney to rephrase or break down the question.

Alternatively, do not overanalyze every question or be too eager to anticipate questions from the attorney deposing you. Repeat this orally to yourself: Do not overanalyze every question or be too eager to anticipate questions from the attorney deposing you.

Give the attorney’s words their literal, plain English meaning. Having the attorney define words that are clearly understandable to the average person will make you seem obstructive when the testimony is read to a jury.

Think Before You Speak, Think Before You Speak, and Think Before You Speak.

Take your time when responding to questions. Pause for about two to three seconds (i.e., “one thousand one, one thousand two, one thousand three”) after each question. Seriously. This has many benefits:

1) I allows your attorney to formulate objections.
2) It provides you with an opportunity to decide whether you know the answer and to determine how you will respond.
Remember, you are in control of answering questions. Don’t let the opposing attorney bully you into making snap responses (and he’ll try).

Also, do not allow the attorney to interrupt you. If you are not finished answering a question, immediately advise the attorney that you have not finished. Likewise, pacing yourself will ensure that you do not interrupt the attorney’s questions.

Do not try to talk over the attorney questioning you.

Do not argue with the attorney questioning you.

Do not antagonize or insult the attorney questioning you, and do not look to be insulted by every word that issues from the mouth of the attorney questioning you. I know the pressure is on you, but losing your cool only makes you look bad, not like the martyr you feel you are.

This all relates back to the issue of control. Do not allow the attorney to take control of the rhythm of the deposition. There is no time clock or deadline for your answers. Pace yourself and remain in control.

Do Not Put Words in Your Own Mouth

When responding to questions, pay attention and be careful not to adopt “facts” just because the attorney questioning you mentions them. Do not allow the attorney to put words in your mouth. Do not accept his characterizations of people, events, and other facts.

Also, do not accept the attorney’s allegedly logical inferences and deductions. Whenever a deposing attorney is characterizing, summarizing or deducing information in his or her questions, he or she is doing so in a light favorable to his case, not yours. You must rephrase the question in your own words or fully answer the question without adopting the attorney’s words. Again, if you do not point out the errors contained within the question, it will be assumed you adopted these purported facts and the deposition will go forward.

You watch enough TV to know that opposing attorneys questioning you are trying to make you look foolish, ignorant, to be a liar or a loose cannon. Don’t give the bastards the satisfaction—keep your cool.

Every word you say is being recorded. If you’re on camera, every expression you make, the spit flying from your mouth, your shifty eyes, and the veins popping in your forehead will be recorded for all to see. If you find yourself reaching the breaking point, ask for a break. You’re entitled to them.

Mistakes Happen

Keep in mind that every witness makes mistakes in a deposition. Some are bigger than others. If you make a mistake or overlook something, all is not lost. If you realize you have made a mistake during your deposition, the mistake should be corrected and explained as soon as you realize it. If the mistake only comes to your attention after the deposition, you may correct the mistake when you sign the transcript. However, remember the admonition that any written changes to your deposition may affect your credibility at the trial.

If you know you made a mistake in your deposition and then wait until trial to try to fix that mistake, it will almost surely be too late.

“I Don’t Know” and “I Do Not Recall” Are Acceptable Answers

All your life you have been coming up with the right answers, be it answering questions on exams or accurately answering questions at work. Knowing the answers to critical questions in your work life can greatly affect your success. In a deposition, however, sometimes you simply don’t have all the answers, and you do not need to have all the answers.

It’s human nature to want to avoid looking foolish or ignorant, but the opposing attorney is playing upon your vanity and pride to make you speculate and appear to be a fool and/or a liar. Do not succumb.

It is the attorney’s intent to exhaust your knowledge. The attorney will ask: “Is there anything else?” or “Is there any other reason?” or “Do you have any other opinions?” Do not try to come up with the “right” answer. A deposition is not a test you have to ace. You simply want to tell the truth in response to the questions, to the extent that you know the truth.

When the opposing attorney asks:

“Is there anything else?”

“Is there any other reason?” or

“Do you have any other opinions?”,

do not answer “no” to the above questions. “No” is an unequivocal denial. Rather, state: “That is all I can recall at this time,” “I don’t presently know,” or a similar response. Leave the door open for any later recollection that may occur prior to or at the trial.

“I don’t know” will often be a more truthful response than attempting to guess or speculate at a “correct” answer to the question. For example, “Have you ever spoken with the plaintiff’s wife?” This is an extremely broad question. It refers to your entire life, not just regarding this lawsuit. Without spending the time to review your entire life, simply answering “no” may be inaccurate. A response such as, “I do not recall meeting the plaintiff’s wife,” or “I am not sure,” is certainly more accurate. While your answers should be brief and to the point, be wary of unequivocal “yes” or “no” responses to some questions.

Do Not Guess

Remember the golden rule—tell the truth. You are not telling the truth if you guess.

You are to testify based upon your own personal knowledge. This necessarily requires that you distinguish between the information you have heard from others and what constitutes your own knowledge.

For instance, assume that you are accused of not knowing your child’s special health needs. You are asked if you know how to apply some prescription ointment.

Q: “Do you know how to apply the ointment?”
A: “Yes.”
Q: “What is your understanding?”
A: “I squirt about half an inch of it onto my finger and gently rub it in a circular motion on the scab until it is evenly distributed.”
Q: “Is this consistent with what the doctor directs?”
A: “I have no personal knowledge; this is how my wife told me the doctor instructed it be done.”
Each of the above answers is accurate and responsive to the attorney’s questions. You did not, however, volunteer any information or guess. Speculating and guessing are not truthful.

Only the Facts

You may have the tendency to characterize your statements and embellish them. In a deposition, such is extremely detrimental. Avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly” or “to tell the truth.”

We also have a tendency to give our state of mind when speaking in normal conversation. For instance, when asked if you buckled the child’s seat belt, the answer is “yes,” not “yes, and everything seemed to be in order.” Your thoughts are to be given only when they are specifically asked for.

Also, avoid the use of “never” or “always.” Such language can come back to haunt you.

Do Not Volunteer Information

Answer only the question you are asked. If you are asked whether you spanked your son, do not explain when you spank children, why you spank, or what behavior is deserving of a spanking. None of these things were asked for and your answer would therefore be unsolicited.

If the attorney wants more information, he or she will ask the follow-up question. Remember, this is not your opportunity to defend yourself or explain your side of the story. Volunteering information will only lead to additional questions and prolong your deposition.

Act Professionally and Maturely

While this may seem to be common sense, it is imperative that you behave professionally and maturely at all times. You must dress professionally and maturely (e.g., wear a suit). You obviously should not chew gum or eat during your deposition. You should also refrain from any off-color humor (as tempting as a good attorney joke may be).

While hopefully you will be cautious when responding to deposition questions, never become combative or argumentative in your deposition. Lawyers argue. Witnesses testify. Answer the questions truthfully, without arguing or being difficult.

Behaving professionally and maturely will enable you to concentrate on providing truthful testimony and present a good face to the court.

You Are Never Off the Record

If you are tired or not feeling well, you may, at any time, request a recess. Asking for a break is not a sign of weakness. Be aware, however, that whatever you say in a conversation off the record may very well be the subject of questioning on the record.

Counsel may joke with you off the record. Do not be tempted to engage in such behavior. Even more important, never use obscenities or make slurs while testifying. This can be extremely embarrassing and damaging.

Remember the written transcript does not communicate sarcasm. The court reporter also does not note laughter. Therefore, although the entire room may be laughing at your comment, it may seem extremely rude when printed in black and white and read to a jury several months later.

Expert Opinions

If you are not represented by counsel, and are not being paid as an expert, be wary of giving any opinion testimony. Questions regarding standard safety procedures or other normal company practices are of particular concern. For example, you may be asked “How do you think your smoking may affect your children’s health?” Or, “In your opinion, what could have been done to avoid the accident?” Each of these questions calls for your opinion. Responding to such questions can be damaging to you and your company. At the very least, never offer any unsolicited opinions.

Being Questioned About Documents and Pictures

At your deposition you will likely be shown and asked to identify and/or comment on letters, financial documents, photographs, and other documents pertaining to the law suit. These documents are typically those that the opposing side feels support its case and/or weaken yours.

Your records do not speak for themselves. If they did, there would be no need to take your deposition.

The opposing attorney has already reviewed your records prior to the deposition, and has questions about them. You want to re-familiarize yourself with these records so you can confidently respond to—and possibly anticipate—the attorney’s questions. Furthermore, because the attorney will be questioning you about your records, not reviewing them will only lengthen and/or weaken your deposition.

Handling of Documents

You will be shown several documents during your deposition. The attorney has certain objectives when showing you these documents:

• To authenticate the document, i.e., the document is what it purports to be

• To determine that you have personal knowledge regarding the document or the information in the document

• To learn all you know regarding the preparation, transmittal and receipt of the document

• To learn all you know regarding the information in the document

If a document is important enough for an attorney to use in questioning, you should treat it with equal importance, scrutinizing it carefully before providing any answers. Take your time reviewing, even if you believe you have seen it before. Before answering any questions:

• Look at the document to see who wrote it, who it was sent to and who else received copies.

• If you are not included in this group of people, scan the document for handwritten notes to determine whether they are in your handwriting or whether the notes were directed to you.

• Look at major subheadings on the document to assist you in deciding whether or not you have ever seen it.

• Lastly, determine whether you have, in fact, ever seen the document before.

If you have never seen the document, when the attorney asks if you have seen it before, tell him that you do not recall having seen it. Only read the document in detail if the attorney then asks you to read it. Do not be rushed to finish reading the document. You will not be able to tell the truth by only glancing through it.

Additionally, if your subpoena does not request you to bring any documents, do not bring any. If counsel becomes aware of additional documents you may have during your deposition, do not immediately agree to produce them. If the attorney is seeking documents that were not previously subpoenaed, ask him or her to send you a subpoena for them. This will give you and your attorney an opportunity to review the request and make an appropriate response.

Videotaped Depositions

The above-mentioned guidelines are even more critical in a videotaped deposition, which may be shown at the trial. While being videotaped, you must be aware that you are speaking to the judge, not just the attorneys present at the deposition. You should turn and face the camera when responding to questions. Do not look across the table at the questioning attorney.

You should also avoid engaging in any distracting mannerisms, such as shifting in your seat, gazing helplessly at your attorney, tapping your pen, shuffling papers or moving a coffee cup. Whether you feel happy and relaxed or not, look that way on camera. No one likes a tense grump. The deposition is being audio taped as well. Unlike a written transcript, a jury will be able to hear the tone of your responses in a video recorded deposition.

Know Your Role

A deposition can be an intimidating process and should never be taken lightly. Following these guidelines will help ensure that you have testified truthfully and with confidence. You can also be confident that your deposition testimony has effectively limited your potential exposure.
A question that often comes up as to how your attorney prepares you for your deposition without suggesting what your testimony should be. Obviously, your attorney will not tell what to say. It is unethical and unlikely to help you (and could even backfire). But what you can, and should do, is have your attorney explain to you what the case is about, how your testimony fits into the case, and what your testimony will likely cover. If your attorney has identified the key themes that support your case (and odds are you have, or should have, done so) then you can weave those themes into your explanation of the case.

Thursday, September 23, 2010

Legislator, Father's Rights Group Claim Police Don't Enforce Custodial Interference Law

A Utah lawmaker and a fathers' rights group claim police are not enforcing a new state law, on parents' court-ordered visits with their own children. House Bill 197, "Custodial Interference Amendments," passed during the last legislative session. 

Click here for the link to the Channel 2 news story:

Wednesday, August 25, 2010

Calculating Alimony in Utah

Many people ask me how alimony is calculated in Utah divorce actions.  Unlike child support, which is principally calculated on a statutory arithmetical formula, calculating alimony does not follow a single or even a set method.  Notwithstanding, the most commonly utilized starting point when calculating alimony is an “income equalization” formula, which I will demonstrate  below:

In this very simple hypothetical setting, the husband, John, and his wife, Jane, are getting divorced.  John and Jane have two children, with primary physical custody awarded to Jane.
While men can, in theory, receive an alimony award, husbands in Utah typically out-earn their wives in the majority of divorce cases, which makes the award of alimony to men a rarity.  So we will calculate alimony based upon John earning more than Jane.

Saturday, August 21, 2010

For Utah Divorce Practitioners - Help from the Separate Maintenance Provisions of the Utah Code

Here's useful drafting language when moving for temporary orders in a divorce action where the movant seeks to restrain the disposal or encumbrance of property (the sections of the Utah Code pertaining to divorce don't have this, but the benefit of adapting it's application to a divorce action is apparent):

30-4-4.   Restraining disposal of property.

     At the time of filing the complaint mentioned in Section 30-4-1, or at any time subsequent thereto, the plaintiff may procure from the court, and file with the county recorder of any county in the state in which the defendant may own real estate, an order enjoining and restraining the defendant from disposing of or encumbering the same or any portion thereof, describing such real estate with reasonable certainty, and from the time of filing such order the property described therein shall be charged with a lien in favor of the plaintiff to the extent of any judgment which may be rendered in the action.

Friday, August 20, 2010

Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency

I have been wanting to prepare a posting entitled "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency" for years, but have been too busy to organize for this purpose until now.

Because political correctness has all but surely killed any appreciation for satire and thus also scared witless anyone who might wish to write satirically, before I go any further I must make the following disclaimer:  

With my blog posting(s) under the title of "Successful Strategies for Divorce, If You Have No Conscience or Sense of Decency," I am not encouraging anyone to engage in dishonest, illegal or other wrongful behavior in divorce.  My purpose of such a blog posting or postings on the subject is quite the contrary, i.e., to utilize irony, sarcasm, ridicule, or the like to expose, denounce, and deride inequitable behavior in divorce and those who engage in it.  By exposing such misconduct I hope to help in its eradication.

To continue reading, please visit

      Wednesday, August 11, 2010

      Memorable quotation from The Rainmaker

      Memorable quotation from The Rainmaker (1997), the movie made from John Grisham's novel of the same name:
      "Every lawyer, at least once in every case, feels himself crossing a line that he doesn't really mean to cross... it just happens... And if you cross it enough times it disappears forever. And then you're nothing but another lawyer joke, just another shark in the dirty water."

      Child Support and Conventional Wisdom

      Here's a topic for debate:

      Resolved: That the expenditure of child support payments made by one parent to the parent with primary custody of the couple's children are subject to the discretion of the support recipient.

      This is clearly not the case. Utah Code Section 78B-12-218 plainly provides:

      To continue reading, please visit