In the context of a divorce or family law case, the purpose of deposition is to uncover truthful answers to questions that may not have been fully or adequately addressed on paper during the discovery process. Depositions allow for an attorney and client to examine the opposing party in question to obtain inquisitive responses to questions pertinent to the case. In the state of Georgia the process of depositions and discovery generally must take place within a 6 month time period beginning from the filing of the answer, but can be modified at the courts discretion.
Under O.C.G.A. § 9-11-30(a)-(b)(1): “A party must give reasonable written notice to every other party to the action of the deposition. The notice must give the details concerning the circumstances of the deposition, including the time and place of the deposition and the name and addresses of each person being examined. Additional information may be required for certain types of depositions. And the attendance of witnesses may be compelled by subpoena.”
In a deposition the examination of the party or witness would occur exactly how it would during trial with an examination and a cross-examination of each party. During the examination the witness is placed under oath and the testimony is recorded via court reporter and or may be recorded electronically or videotaped. During the deposition an attorney may also make objections or conduct other legal procedures as they would be permitted to do in court – in response to evidence, conduct, or manner of the deposition process. If at any time a party or counsel believes that the deposition is overly broad or burdensome then it is necessary for the party or witness to petition the court to limit the scope of the deposition, limit the time permitted for deposition, or terminate the deposition.
Under O.C.G.A. § 9-11-30(c)(d) – “A court may terminate a deposition if the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, of oppress the deponent or party.” On the other hand, a deposition may also be extended beyond the general allocation of time permitted if a judge grants the request to extend deposition upon request. Following depositions a witness or party may request a copy of the examination transcript for accuracy and may changes to the testimony if necessary. In the event that changes are necessary O.C.G.A. § 9-11-30(e) mandates that the witness sign a statement including the correction and the reason as to why the transcript was incorrect – either by mistaken testimony or by miss-recording.
Depositions are often not pursued due to the monetary cost associated with the attorney’s fees, court reporting, and time. Court reporting fees also known as a transcription of stenographic fee are highly costly and are charged by hour. These fees are also separate from any fee required to obtain a copy of the transcription from the transcriber or reporting association. Under Georgia Law the testimony at a deposition must be recorded by stenographic means which may be accompanied by audio or audio visual recording. Furthermore, the party taking the deposition bears the cost of the recording fees for that session O.C.G.A. § 9-11-30(b)(4). The court may also find penalties associated with failure to attend and cost of deposition if they are not provided for in accordance to law. O O.C.G.A. § 9-11-30(g) finds that, “additional cist related to depositions include penalties associated with failure to attend or failure to secure the presence of a witness at a deposition. If a party fails to attend a deposition, that party may be sanctioned by the court.”
During any trial or hearing a deposition may be used against a party providing testimony, who was present during deposition, or had notice of the deposition so long as the deposition fits into the legal rules for presenting evidence. For the most part depositions are used to contradict, fix, or impeach the testimony of a party or witness at trial. Depositions may be extremely resourceful in complex cases, cases in which a party is likely to alter testimony, or in cases in which one party is likely perjure his or herself by blatantly altering previous accounts.
How to Prepare for Deposition:
Know your Facts
You should be prepared to answer any facts that may be associated with your case especially including facts that are a part of your personal information. You should prepare for questions that may be brought up about your personal information and be prepared to answer them in a professional manner. A good way to review which questions may be asked in deposition is to review questions and answers that were asked within interrogatories. Most of the time questions in divorce cases may circulate around finances and assets. In cases concerning child custody many of the questions may involve the parents knowledge about the child including birthdays, special events, when visitation occurred, favorite activities, friends names, grades in school, graduation dates etc.
Like the saying goes, “practice makes perfect.” The more you rehearse answering questions the better your response may be. Most witnesses are nervous when providing testimony in depositions and practicing may make it easier to deliver more effective testimony and for the witness to make the precise statements that they intend to without forgetting to mention a fact due to nerves. Your attorney may assist you in your practice for deposition by anticipating questions they believe that the opposing party will ask during depositions. Your attorney may also assist you be running through a practice question and answer session to give you the feel of a deposition. During your deposition you will need to tell the truth as you will be held under oath. Your attorney during deposition should not be trying to alter your testimony or leading you on specifically what to say. Your attorney may elicit you to rephrase your answer to make your statements more clear and affluent but should not alter the context of your statements.
Be Conscious of your Tone
Hesitations in responding to questions will be recorded in your transcript and will make it appear that you are either unsure in your answer or may be intentionally falsifying your answers. Filler words for pauses in sentences; such as, ummm and uhhh will be recorded within the transcription for the court and will make it appear that there is a lack of confidence in the statement or an intentional tact of deception. Statements made on court record appear better without filler words as complete pauses in the middle of statements are not recorded and make the text appear more fluent. You should also refrain from trying to be “cute” or comical in your responses to questions as your taunting or joking manner may not be carried over into text and can be taken out of context in future court proceedings. Also if your deposition is audio recorded or audio visually recorded you should be careful about your facial and vocal tone expressions. Outburst of anger, agitation, aggression, etc. can be displayed on such recordings to the court and may negatively impact your case or be used to demonstrate your temperament or character to the courts — especially on videotape be conscious of your facial expression, nonverbal communications, and facial flushing. During your practice of answering questions you may record yourself to try and manage your tone and expression during questioning.
I Do not Know v. I Do not Remember
During your deposition there may be questions that you may not be able to offer an answer for an in which cases you will need to discern whether to answer the question with a response of:
- I do not know, or
- I do not remember.
You should only answer “I do not know” to questions in which you do not nor have you ever had any experience with or knowledge of at any time. However, if you have had knowledge of a fact at any time, but simply cannot recall that information then the proper response is “I do not remember.” Although the difference is slight your response is crucial and can impact your testimony and your ability to gain legal assistance in answering the question properly. In cases where you do not remember your attorney may interject in the questioning and provide you evidence to assist you in remembering the information and then allow for you to re address the question. Answering the question with I do not know will prevent your attorney with assisting you in answering the question. Furthermore stating that you do not remember may allow for you to clarify answers at a later date or during trial if you are suddenly able to recall which events, facts, etc. took place. You should refrain from answering all questions with I do not remember answers as it will appear deceptive at trial if you suddenly recall all the answers to questions that were unanswered during deposition.
Take your Time
In some instances attorneys will ask patterned questions in an attempt to illicit a programmed response. For example sometimes they will intentionally ask questions with the same response repeatedly and then throw in a question that involves a more complex or opposite answer. This is also known as throwing a deposition curve ball. It is important to try and avoid being caught up in falsely answering a question because of the pattern of questioning or because your attention drifts. After many hours of deposition you may find it difficult to focus on the current questions being asked. The best advice is to take your time, slow down if necessary, pause when you need to, and pay close attention to the short questions. If you feel that you missed an essential part of a question or feel that the question needs to be rephrased before asking due to complexity you may ask for the opposing counsel to rephrase the question or re ask the question. To reset you and prevent you from falling victim to a rhythm of blindly answering questions it is important to practice controlled breathing before answering each question.
Obtaining Legal Help
Sometimes, one of the best ways to handle a deposition is to avoid it in the first place, or to have a professional help you prepare and attend the deposition with you. This is what divorce and family law attorneys do. An experienced Georgia divorce and mail law attorney can help you negotiate a settlement in your case, which frequently makes a deposition unnecessary. However, if you did need to schedule or attend a deposition, an Georgia experienced divorce and family law attorney can prevent the other side from using improper discovery methods, prevent harassment and berating by the other attorney, and in general help you prepare the documents and testimony that will be relevant during the deposition. Call us today at 770-609-1247 if you need help with a pending Georgia divorce or family law case.