In a divorce or family law matter, a deposition often becomes necessary as a trial date approaches. Attorneys like to take depositions, and in most cases need to take depositions, where a case has not settled.
Attorneys like to ask the opposing party questions about the case. They want to know about the assets in terms of marital and separate property in a divorce. They want to know about child custody in terms of why the other party is seeking the parenting arrangement they have requested. As it relates to income, the opposing attorney will want to ask questions relative to base salary, commissions, over-time pay and other matters related to benefits. In terms of spousal maintenance, if that issue is still unresolved, an attorney will want to ask questions about it. Of course, as it relates to marital misconduct and facts that led to the divorce itself, this is all fair game in a deposition.
Lots of parties come into a deposition aware of the process. The understand clearly that opposing counsel represents the ex-spouse, soon-to-be-ex spouse or other adverse party. As a result, they understand that their job is to answer the questions asked of them truthfully and honestly. At the same time, they understand that they are really only to answer questions asked of them. They are not to volunteer information, guess or speculate.
However, in certain cases, a party after a deposition begins can actually forget these variables. With a pleasant opposing counsel who is assuming the role of good cop, a party can often left their guard down. Versus simply answering questions truthfully, honestly and simply, they begin to fall into the trap of thinking that they can convince the opposing counsel that they are the noble party in the litigation, that their version of the facts are more believable and/or that they goals are more reasonable than that of the attorney’s own client. This results in information being volunteered that was not asked. Or, a party may begin making broad, uninvited statements about why their are right and their ex or soon-to-be ex is wrong.
Of course, opposing counsel is a paid advocate for the opposing party. Even if on some level the opposing counsel is being internally swayed (which is unlikely), a party being deposed needs to remember that the opposing counsel is not their friend in this proceeding. It is their job to simply get as much information as they can to protect their client at trial.
As a result, a party being deposed should not let their guard down. They cannot forget the seriousness of the situation or deviate from the simple principles that it is their duty to only answer the questions asked of them truthfully, honestly and simply as possible. If a party begins volunteering information, they may be risking opening doors to matters that may have been left shut. They might also give opposing counsel a greater opportunity to try and develop a game-plan for trial to refute or contradict what a party said in their deposition.