Your Testimony in a Divorce: 10 Tips for Depositions and Trials
A divorce might be the first time — the only time — that you will be asked to testify in a deposition or court hearing. Your testimony will be recorded, and might be compared to the testimony of other witnesses, documentary evidence, or your own testimony at an earlier or later date. You want to give reliable testimony, which means that you must demonstrate honesty, good memory, and accurate perception of the facts that you will describe. These tips might help you to be a credible witness who will contribute to a successful outcome in your divorce case.
1. DON’T bring new evidence to the courtroom or deposition. DO provide all evidence to your lawyer in advance. If you plan to present documents or text messages or other evidence in court or during your deposition, give them to your lawyer in advance – at least a few days before your testimony. There must be no surprises during your testimony, especially when you are in court. In some cases, you may be barred from presenting evidence that was not described in a pretrial statement, which is filed at least a week before the hearing.
2. DO prepare for your testimony. DON’T take your notes to the witness stand when you testify. You might have trouble remembering the details of past events that you will be asked to testify about, such as dates, times, place, people and things. It is helpful to make a chronological list of all events that you might be asked about (education, career, property purchase and sale, separation, children’s milestones). The chronological list will help you to remember details when you testify. Share the list with your lawyer when you are preparing for your testimony. Don’t take your notes to the witness stand or deposition, however, if they contain private information. The other lawyer may be entitled to read them, including your legal strategy and your lawyer’s advice, if you take them to the witness stand.
3. DO protect your attorney-client privilege. DON’T start a sentence with “on the advice of my lawyer…” Conversations between you and your lawyer are protected by attorney-client privilege in most instances. If you testify about your lawyer’s advice, you may be waiving your attorney-client privilege.
4. DO show respect for everyone in the courtroom, including your spouse and spouse’s lawyer. DON’T argue with the other lawyer or the judge. In fact, don’t interrupt anyone else when they are talking. Some lawyers will try to bait you into an argument, just to poison your image in court. There is never any benefit in fighting with your spouse’s lawyer or the judge, who is responsible for deciding how to divide property, establish support, or allocate custody.
5. DON’T roll your eyes or make faces when someone else is talking. DO make notes to remind yourself or your lawyer when others are testifying. Remember the debates between Al Gore and George Bush when they were running for President? Many viewers were turned off by Al Gore when he made faces and muttered under his breath while Bush was speaking. A judge may be turned off if you can’t control yourself during the testimony of adverse witnesses. Instead of making faces or sighing, make detailed notes that you can review with your lawyer later. Your notes will help your lawyer to cross exam the adverse witness or present rebuttal evidence.
6. DON’T volunteer more information unless your lawyer invites you. DO answer the question you are asked. Don’t help your spouse’s lawyer by volunteering information that has not been asked of you. In most situations, your lawyer will have an opportunity to ask you for more information if your lawyer thinks it will help your case.
7. DO admit when you don’t know the answer. DON’T start your testimony by saying things like, “I don’t know for sure, but I think…” Most testimony that begins with “I’m not sure….” is wrong, which you may realize later. No one expects you to make a guess or speculate. Instead, you can say something like, “I don’t recall right now.” Your own lawyer may be able to follow up with a question that will jog your memory.
8. DON’T help the other lawyer to ask the right question. DO limit your testimony when answering cross examination. You might think you know what your spouse’s lawyer is trying to ask, but you generally gain no benefit by helping your spouse’s lawyer. Answer only the question you are asked, even if it’s not the right question. It is also important to be respectful of everyone’s time, and do not ramble or filibuster when you are testifying. An impatient judge might not be paying attention.
9. DON’T prove your point to a cross examining lawyer. DO wait for your own lawyer to follow up. Your spouse’s lawyer is not judging your case, so it is useless to prove anything to your spouse’s lawyer. Direct your testimony to the Judge instead. If the Judge follows your testimony and understands your point, then it doesn’t matter if your spouse or your spouse’s lawyer understands or agrees. Plus, you are never going to convince your spouse or your spouse’s lawyer that you are right so why bother trying?
10. DON’T offer to bring documents or information later. DO bring the documents and information that you expect to present during your testimony. When a deposition or hearing ends, the record is closed. In most instances, it cannot be reopened so there is no point in offering to produce documents or information later. If your case is in the discovery phase, you may be able to produce documents or information later but you do not have to commit during your deposition. Instead, make yourself a mental note to give the information to your own lawyer, who can decide whether to produce it in discovery.