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Tag: testimony

Doing What’s Best for Children by Refusing to Hear From Them on the Subject (And Other Nonsense).

Recently an attorney posed a question on a forum for fellow Utah family law attorneys. The question involved how to find out what the children’s experiences have been with one of their parents (this parent was dealing with some personal demons) and what kind of contact they should have with that parent.

I responded on the forum that if this isn’t a scenario in which both the commissioner and the judge should be interviewing the children themselves, so that those who hold the fates of these children in their hands have the best possible idea what is going through these children’s minds at this time, what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, then there is never an appropriate time for the court to interview children.

Who could gainsay that?

Many tried (and failed).

One attorney who responded to my suggestion commented that this would be the worst time for a judge or commissioner to interview the children but did not explain why. This attorney claimed that a private guardian ad litem (PGAL) should be appointed for, and to interview the children, instead. I asked for an explanation, and further commented by asking what ostensibly makes judges and commissioners so innately bad at interviewing children, and what makes PGALs innately so good at it? I don’t know where the myth of the angelic, “child whisperer” PGAL and the demonic, “couldn’t interview a child effectively if his/her life depended on it” judge dichotomy came from, but it’s nonsense.

Another attorney (like many who comment on this subject) commented that children should never be interviewed or even “exposed to the legal system unless absolutely necessary” without identifying a scenario in which it would be “absolutely necessary”. This attorney claimed that because minor children’s brains are developing that being interviewed by a judge or commissioner  “is incredibly damaging to the child.” In response to that comment I asked, “Where’s the evidence?”

The response I got was similar to what everyone says to me in response to that same question:

  • “every single child development book ever created, academic case studies, nonprofits that specialize in it, etc.” advises against judges or lawyers interviewing children.

o   This is false (which should come as no surprise when any speaks in those kinds of absolute terms), but it’s widely believed (or asserted as believed) in the family law profession.

  • “Commissioners and judges are not specifically educated in this area of law as those who practice it day are.”

o   But that argument erroneously presumes

  • that unless a judge, commissioner, or lawyer is “specifically educated” in how to talk to children about what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, that judge, commissioner, or lawyer will inexorably make a mess of interviewing the child; and
  • that those who are (or are “certified” as) “specifically educated” in how to talk to children are incapable of being incompetent child interviewers.
  • When I responded with, “Well, if it’s so obvious and the research so voluminous and overwhelming, please cite it,” I got this in response: “You can do the research yourself.”

The legal system needs to stop believing that which is untested in the name of “protecting children.” It was widely accepted as fact in America that tomatoes were poisonous to humans. It was not until Robert Gibbon Johnson (no relation to me) ate a tomato on the courthouse steps of Salem, New Jersey in 1820 that he proved otherwise. Dispelling that myth has been a culinary and economical boon to the entire world.

I recently deposed a 14-year-old child in a parent time dispute case. She was not only willing to testify but was grateful for the opportunity to have her voice heard and her viewpoint considered. She was a particularly compelling and credible witness. The evidence she provided could not have come from any other source. After her deposition the case was resolved in a week.

The notion that any child testifying in any child custody or parent-time dispute case does terrible damage to any and every child is simply not true. I know this because I have deposed children to the benefit of child and truth seeking alike.

Blanket prohibitions on child testimony (on the grounds that they are nothing but harmful to all children) are not only false, they are also contrary to fundamental concepts of fact finding and subserving the best interest of the child.

I know that eliciting child testimony is not harmful to all children because I have real world data to the contrary. And not just someone else’s claims, but my own experience.

It has, unfortunately, become an article of faith in Utah family law practice that child testimony does more harm than good. That has not been my experience. I am one of the few attorneys in Utah who has that experience. It is therefore hard for me to give unverified claims the same weight as my own experience. I would be lying if I asserted that child testimony inexorably and/or irreparably harms most (let alone all) children. Blanket prohibitions on child testimony are antithetical to fundamental principles of our legal system, i.e., diligent investigation, careful, impartial analysis, real respect for children’s rights and best interests, and honest judgment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How Could I Use Transcripts of a Victim Impact Statement to Show the Other Party Has Told Lies in Court and Cannot Be Trusted to Be Honest?

If the statement:

  • is a sworn affidavit or in a form accepted by the court as equivalent to a sworn affidavit; and
  • the content of the affidavit/statement is relevant to the issues before the court in your particular proceeding (“relevant” means the evidence “tends to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence”),

then you likely can submit the statement to the court and have the court admit it as evidence, with the content of the affidavit/statement treated like any other admissible testimony.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-could-I-use-transcripts-of-a-victim-impact-statement-to-show-the-other-party-has-told-lies-in-court-and-cannot-be-trusted-to-be-honest/answer/Eric-Johnson-311

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311  

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Examples of how to not appear judgmental as a lay witness.

What are some examples of how to not appear judgmental (or worse) as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
  3. Listen to the questions posed to you, so that you know what information is being elicited from you.
  4. Simply answer questions, and answer questions simply.
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
    • Do not, do not, do not try to answer yes/no questions with rambling stories.
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-are-some-examples-of-how-to-not-appear-judgmental-as-a-lay-witness-in-court/answer/Eric-Johnson-311?prompt_topic_bio=1

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Does saying after an answer “I truly believe that”, “it truly is”, damage your credibility as a lay witness in court or is it better to don’t add this type of qualifiers?

First, whether you “truly believe” something or “find it hard to believe,” testifying to something you believe or don’t believe, as opposed to testifying as to something you know, is the first and biggest problem. 

Testifying about something you believe (but do not know) is inadmissible testimony. Testifying based upon belief (as opposed to personal knowledge)—whether you testify that you “believe” or “don’t believe” a thing to be true, is known in legal parlance as “speculative” and speculative testimony is objectionable and inadmissible. Speculation is no different than guessing, and it would be frightening unfair to decide a case based upon beliefs, instead of based upon facts. 

Second, and somewhat ironically, trying to qualify or bolster your statement to make it more believable may have the opposite effect. Adding qualifiers to your testimony may raise the question as to why you would add them. For example, if you were to answer a question with “To be honest, I do(n’t) know,” use of the phrase “to be honest” is unnecessary. So, one could (could, not must, but could) infer that someone who starts a statement with “to be honest” may often answer questions dishonestly as a general matter, which is why the person distinguishes between when he/she speaks honestly and when he/she does not. So why introduce the doubt as to your credibility at all when there is no need to do so? Better to say merely “I don’t know” and “yes” and “no” than to say, “To be honest, I do(n’t) know” or “To tell the truth, I do(n’t) know”. 

Many people have the linguistic tic or affectation of responding to questions with the phrase “I believe” when in fact such people are not guessing or speculating but know. Imagine a situation where when the witness left the office on a particular day is a crucial fact to be established. Imagine that the witness knows precisely when he/she left the office that day, i.e., 5:15 p.m. When such a person is testifying and says, in response to the question as to what time he/she left the office at the end of the day, “I believe I left the office at 5:15 p.m.,” then the witness is needlessly confusing the judge and/or jury. Saying, “I believe” before making a statement of fact changes that statement of fact into a statement of speculation, a guess. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Does-saying-after-an-answer-I-truly-believe-that-it-truly-is-damage-your-credibility-as-a-lay-witness-in-court-or-is-it-better-to-dont-add-this-type-of-qualifiers/answer/Eric-Johnson-311  

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Am I held to what I said first as a witness, even if I immediately corrected my mistake once I realized it?

It is not merely a question of how quickly the witness corrects his or her answer.

Sometimes a lawyer will ask a witness for precise details simply not because those details crucial to resolving a particular issue but simply because the more details a witness recalls the more the judge or jury may believe the witness has a particularly good memory and can thus be trusted that much more.

If the case depends upon whether an event did or did not take place on a Monday (or a Thursday), and the witness knows that, then a witness can damage his/her credibility by giving contradictory responses to the question. Unfortunately, even if it’s an honest oversight or slip of the tongue, the higher the stakes, the less tolerance there is for errors.

Still, it is better to correct what you stated in error than to stick to a false story to—ironically—avoid looking like a liar. to borrow from Mark Twain, better to tell the truth and risk being branded a liar than to bear false witness knowingly and thus remove all doubt.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Is-it-true-or-not-that-when-you-say-as-a-witness-in-court-for-example-it-was-Monday-and-after-1-second-Thusday-it-was-Thusday-that-was-not-an-incongruent-statement-because-it-has-passed-1-second-and-not-more-time/answer/Eric-Johnson-311?prompt_topic_bio=1

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In court cases, how does taking an oath make any difference?

In court cases, how does taking an oath make any difference?

From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.

Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.

Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.

If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.

I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/In-court-cases-how-does-taking-an-oath-make-any-difference/answer/Eric-Johnson-311?prompt_topic_bio=1

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My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

Your experience may be different, but welcome to what may be an experience that causes you to lose faith in the legal system. You are significantly at your parents’ and the system’s mercy.

The likely first strike against you: given your age, you can be treated much like an adult when it comes to penalties yet denied the freedom to present your case as you wish because of your status as a minor child.

The second strike against you: courts generally do not like hearing from children in almost any law suit and go out of there way to curtail their participation. Now in fairness, in may instances this is intended to protect children and in many instances it does have that effect. In other instances, however, it serves to do nothing but muzzle a child, denying him/her the full capacity to defend himself/herself or express his/her concerns, fears, and desires. The testimony and/or arguments of children, merely on the basis of their being children, are often dismissed as not competent or credible witnesses.

The third strike is that you’re a wild, scary 17-year-old child, boiling with hormones and irresponsibility, which makes it very easy 1) not to be taken seriously; and 2) to be on the receiving end of prejudice, especially when your parents accuse you of being a danger to them.

Bottom line: to say, “Trying to go it alone as a child in court is difficult” is a ridiculously glaring understatement. The unquestionably best thing you can do for yourself is to get a skilled lawyer of your choice, if you can, to defend you within the legal system and to protect you from the vagaries of the legal system. Nothing else will 1) do you and your case more good and 2) better improve your odds of being treated fairly.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/My-parents-filed-an-order-of-protection-against-me-Is-there-any-way-I-can-fight-this-at-age-17-knowing-that-I-ve-done-no-wrong/answer/Eric-Johnson-311

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In re J.R.H. – 2020 UT App 155 – witness credibility, sufficiency of evidence

THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.R.H.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
J.R.H., Appellant,
vs.
STATE OF UTAH, Appellee.

Opinion
No. 20190419-CA
Filed November 13, 2020

Fourth District Juvenile Court, Spanish Fork Department
The Honorable F. Richards Smith
No. 455453

Bryson King and Douglas J. Thompson, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1        After a bench trial, the juvenile court found that J.R.H.—a juvenile—had committed assault, and therefore the court adjudicated J.R.H. delinquent. J.R.H. appeals, challenging the sufficiency of the evidence supporting the court’s adjudication. We affirm.

BACKGROUND[1]

¶2        One afternoon, a teenage boy (Victim) made plans, via the online messaging app Snapchat,[2] to meet another boy he knew (Buyer) on a public street after school to sell a “vape pen.” Victim was dropped off by a friend’s mother near the arranged meeting spot; there is no evidence that either the friend’s mother or Victim’s own parents knew that Victim either possessed or intended to sell a vape pen. As Victim walked toward the meeting spot, he was approached not by Buyer but by two other juveniles, who—according to Victim’s testimony at trial—both proceeded to beat him up and take the vape pen. In a police interview immediately following the incident, as well as at trial, Victim identified J.R.H. and J.R.H.’s cousin (Cousin) as the two juveniles who assaulted him. It is undisputed that Victim was assaulted; indeed, Cousin later admitted to administering the beating. But J.R.H. has consistently denied any involvement, and the main contested issue at trial was whether J.R.H. had participated in the assault along with Cousin.

¶3        At trial, the court heard testimony from four witnesses: Victim, J.R.H., J.R.H.’s mother (Mother), and Cousin. Other than a photograph of Victim’s injuries, there was no documentary evidence. Victim testified that, earlier on the day of the assault, he received harassing Snapchat messages from both J.R.H. and Cousin. Prior to that day, Victim had never met Cousin in person, and had had only one brief in-person interaction with J.R.H., at a high school basketball game a few months prior. After receiving the threatening Snapchat messages, Victim stopped communicating with J.R.H. and Cousin, but testified that, using a feature of the Snapchat app, his Snapchat “friends” could still ascertain his exact location. As Victim approached the spot where he was supposed to meet Buyer, two kids on bikes— whom Victim later identified as J.R.H. and Cousin—rode over to him and began shouting at him and asking if he was “J,” which is his Snapchat username. After Victim responded in the affirmative, both J.R.H. and Cousin began assaulting him. According to Victim, J.R.H. tackled Victim and repeatedly punched him and Cousin kicked him in the face, causing Victim to start “blacking out.” Victim testified that J.R.H. and Cousin ceased their assault when some passersby noticed the altercation and yelled, at which point J.R.H. and Cousin took the vape pen out of Victim’s backpack and left the scene. Victim testified that, later that day, some of his other friends sent him pictures that J.R.H. and Cousin posted on social media, indicating that they had beat up Victim. According to Victim, one of the photos posted by J.R.H. was captioned, “I love you [Cousin]. Thanks for jumping . . . some guy with me to get this.”

¶4        That same day, Victim contacted police to report what happened, and told an officer that both J.R.H. and Cousin had assaulted him. However, Victim did not tell the officer anything about the vape pen, and even at trial he initially dissembled about his reasons for meeting Buyer, not wanting to admit that he had been there to sell a vape pen. Victim explained that he held that part back because he didn’t want either the officer or his parents to know that he was trying to sell a vape pen.

¶5        J.R.H. testified that he took no part in the assault. According to him, it was Cousin (and not Buyer) who had made arrangements to buy a vape pen from Victim, and J.R.H. testified that he and some other friends went to the meeting spot with Cousin to wait for Victim. But J.R.H. testified that he and the other friends left the scene before Victim arrived, while Cousin stayed behind alone. He testified that any assault was committed by Cousin alone, and that he played no part in it. This was the same account he gave to an investigating police officer in an interview that took place a few months after the incident.

¶6        Mother provided some evidence supportive of J.R.H.’s account, testifying that on the day in question J.R.H. and the other friends returned home several minutes before Cousin did. Cousin also corroborated J.R.H.’s account, testifying that he was the one who arranged to buy the vape pen from Victim, and that he was the only one who assaulted Victim, noting that he had admitted to the offense in separate juvenile court proceedings. However, Cousin acknowledged that, when he had first been contacted by police about the incident, he had “basically lied” and stated that he “had nothing to do with” the assault.

¶7        During his cross-examination of Cousin, the prosecutor noted that Cousin had been “laughing” while he was testifying “about beating this guy up,” and offered his perception that  J.R.H. appeared to think “it was pretty funny” also.[3] Referencing this behavior, the court later stated that it was “really disgusted with the attitude that’s being exhibited in the courtroom today” and specifically addressed Cousin, stating that his attitude was “totally inappropriate.”

¶8        During closing argument, the prosecutor framed the case

as a credibility contest, stating that it “boil[ed] down to a he-said-he-said sort of . . . situation.” J.R.H.’s counsel agreed that the main issue was credibility, spending significant energies during closing argument to assert that Victim was not a credible witness. After the conclusion of the arguments, the court found that the State had met its burden to “prove its case beyond a reasonable doubt,” and adjudicated J.R.H. as “responsible for the assault as charged.”[4]

ISSUES AND STANDARDS OF REVIEW

¶9        J.R.H. appeals, challenging the juvenile court’s conclusion

that he committed the assault. His appellate challenge contains two components. First, J.R.H. asserts that Victim’s testimony was “inherently improbable” and that the juvenile court should have “disregard[ed] it.” See State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.[5] Second, and relatedly, J.R.H. asserts that there was insufficient evidence to support a finding that he committed assault. “When reviewing a juvenile court’s decision for sufficiency of the evidence, [an appellate court] must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination,” and we reverse “only when it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (quotation simplified); see also State v. Carrell, 2018 UT App 21, ¶ 21, 414 P.3d 1030 (“We will reverse a guilty verdict for insufficient evidence only when the evidence is so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crimes of which he was convicted.”).

ANALYSIS

I

¶10      J.R.H. first asserts—citing State v. Robbins, 2009 UT 23, 210 P.3d 288—that Victim’s trial testimony was inherently improbable, and that the juvenile court should therefore not have considered it in making its delinquency determination. Usually, courts are not “in the business of reassessing or reweighing evidence” already considered by a factfinder, and “conflicts in the evidence” are almost always resolved “in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (quotation simplified). But our supreme court has carved out a narrow exception to this general rule, under which a court may choose to disregard a particular witness’s testimony as “inherently improbable,” a condition that is present where testimony is “incredibly dubious and . . . apparently false.” See Robbins, 2009 UT 23, ¶¶ 13, 18. However, a trial court may do so “only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt.” Id. ¶ 19. Indeed, “[t]he existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” Id.; see also Prater, 2017 UT 13, ¶ 38 (explaining that the Robbins court, in disregarding testimony, relied on “the inconsistencies in the [witness’s] testimony plus the patently false statements the [witness] made plus the lack of any corroboration”).

¶11 We have recently emphasized that the Robbins exception is “narrow” and that “[i]t is difficult to successfully establish such a claim on appeal.” See State v. Cady, 2018 UT App 8, ¶¶ 17– 18, 414 P.3d 974; see also State v. Rivera, 2019 UT App 188, ¶ 23 n.6, 455 P.3d 112 (stating that “[a] case which actually falls within the Robbins-Prater rubric is exceedingly rare,” and noting that “we have not found a single Utah decision examined under that rubric that has reversed a verdict since Robbins”). In particular, our supreme court has refused to apply Robbins to garden-variety credibility questions, such as which witness to believe, or which version of a witness’s conflicting account to believe. See Prater, 2017 UT 13, ¶ 39 (“The question of which version of their stories was more credible is the type of question we routinely require juries to answer.”); see also Robbins, 2009 UT 23, ¶ 19 (stating that the Robbins exception does “not allow defendants to challenge witness testimony for generalized concerns about a witness’s credibility” (quotation simplified)).

¶12 The situation presented here by the conflict between Victim’s version of events and J.R.H.’s version of events is a typical credibility contest that does not implicate the concerns that were present in Robbins. Victim’s testimony was neither “incredibly dubious” nor “apparently false,” as opposed to the testimony of the alleged victim in Robbins. See Robbins, 2009 UT 23, ¶¶ 17–18, 22–23. There is nothing incredibly dubious about one teenager beating up another one to obtain something of value, such as a vape pen. And the account Victim gave at trial, while perhaps not airtight in its detail, was nowhere close to “apparently false.” See id. ¶¶ 17–18.

¶13      Moreover, there was other evidence to corroborate at least portions of Victim’s account. See Prater, 2017 UT 13, ¶ 38 (stating that a “lack of any corroboration” is required to implicate a Robbins-level inconsistency (emphasis added)); see also Robbins, 2009 UT 23, ¶ 19 (“The existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” (emphasis added)). Victim, Cousin, and J.R.H. all testified to being in the same area, on the same day, and at the same time, and all described knowledge of a transaction in which Victim was to sell a vape pen. And it is undisputed that Victim was in fact assaulted; not only do photographs support Victim’s testimony on that point, but Cousin admitted to committing the assault. Certainly, not all points of Victim’s testimony are corroborated by other evidence; in particular, there is no corroboration for his account of the most contested piece of evidence at trial: that J.R.H. participated in the assault along with Cousin. But “[c]orroborating evidence sufficient to defeat a Robbins claim does not have to corroborate the witness’s account across the board, in every particular. It just has to provide a second source of evidence for at least some of the details of the witness’s story.” State v. Skinner, 2020 UT App 3, ¶ 34, 457 P.3d 421 (quotation simplified); see id. ¶¶ 33–35 (holding Robbins inapplicable due to corroborating evidence, even though the corroborating evidence did not go to the chief contested issue in the case); see also State v. Crippen, 2016 UT App 152, ¶¶ 15–16, 380 P.3d 18 (stating that, “although [the defendant]’s statements during the jailhouse phone call” that he had engaged in sexual activity with the witness “were not evidence of a lack of consent, those statements do tend to corroborate [the witness]’s overall account,” and holding that the witness’s testimony was therefore “not inherently improbable”).

¶14 J.R.H. asserts that Victim’s testimony was inherently improbable because the State failed to present additional corroborating evidence—like text or Snapchat messages, or testimony from other potential eyewitnesses such as the passersby that, according to Victim, broke up the fight—and because Victim’s testimony contained other inaccuracies and inconsistencies, most notably his admission that neither his statements to police nor his initial trial testimony was completely truthful because he neglected to mention—apparently out of fear of punishment for possessing or selling an illegal item—the fact that he was attempting to sell a vape pen. But while these items certainly provide excellent fodder for cross-examination, and might even lead to a rational conclusion by another factfinder that Victim was less credible than the other witnesses, they do not add up to the sort of inherent improbability that the Robbins exception is designed to capture.

¶15      Accordingly, we reject J.R.H.’s argument that the juvenile court should have completely disregarded Victim’s testimony as inherently improbable under Robbins. The juvenile court did not err by implicitly determining that Victim’s testimony cleared the Robbins threshold, and by considering it in making its ultimate adjudication of delinquency at trial.

II

¶16 Next, J.R.H. challenges the sufficiency of the evidence supporting the juvenile court’s conclusion that J.R.H., along with Cousin, participated in the assault upon Victim. This challenge fails because Victim’s testimony alone—which does not fall under the Robbins exception and which the court properly considered—is sufficient to support the court’s conclusion.

¶17      Trial courts, including juvenile courts, have wide latitude to make credibility determinations, and we defer to such determinations, in part because trial courts have the opportunity to observe witnesses in a more fulsome manner than we do when we read their testimony only from a cold record. See, e.g., Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204 (stating that appellate courts “give great deference to a trial court’s determinations of credibility based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record” (quotation simplified)); In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680 (stating that juvenile courts have “wide latitude of discretion” in making determinations after hearing evidence, not only because they have the “opportunity to judge credibility firsthand” but also because they are specially trained in juvenile matters (quotation simplified)). In this case, there are certain aspects of the witnesses’ bearing that do not come through, at least not in the same way, to this court through the written trial transcript. In particular, the juvenile court expressed displeasure with the demeanor and outward expressions of at least Cousin, and perhaps also J.R.H., during the testimony, and appeared to take this into account when making its determination.

¶18 We recognize, as J.R.H. points out, that three witnesses testified on J.R.H.’s behalf, while only one witness—Victim— testified for the State. Even so, it is the factfinder’s prerogative to “believe one witness against many, and to decide in conformity with declarations which produce conviction in its mind, rather than follow the many, if it so desire[s].” See State v. Minousis, 228 P. 574, 577 (Utah 1924); see also Model Utah Jury Instructions 2d CV121 (Advisory Comm. on Civil Jury Instructions 2020), https://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=1#121 [https://perma.cc/SLP5-6WSV] (“You may believe many witnesses against one or one witness against many.”).

¶19      In this case, the juvenile court heard all of the witnesses testify, and in so doing was able to observe the witnesses’ manner of speaking, demeanor, and other non-verbal modes of expression. After hearing the witnesses testify, and listening to the attorneys present closing arguments, the juvenile court credited Victim’s version of events over J.R.H.’s and Cousin’s versions. This determination was within the juvenile court’s discretion and is not against the clear weight of the evidence. Accordingly, we reject J.R.H.’s argument that insufficient evidence supported the juvenile court’s ultimate determination.

CONCLUSION

¶20 Victim’s trial testimony was not inherently improbable under Robbins, and therefore the juvenile court did not err in considering that testimony in making its delinquency adjudication. The juvenile court’s decision to credit Victim’s version of events was within the court’s wide discretion regarding credibility determinations, and the court’s ultimate decision was supported by sufficient evidence.

¶21 Affirmed.

——————————

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] In an appeal from a bench trial in juvenile court, we view the evidence in the light most favorable to the juvenile court’s ruling, see In re J.E.G., 2020 UT App 94, n.1, 468 P.3d 1048; see also Issertell v. Issertell, 2020 UT App 62, n.2, 463 P.3d 698, and we recite the facts here with that standard in mind.

[2] “Snapchat is a social media messaging application, which allows users to create multimedia messages, such as a photograph or a short video, and edit that multimedia to include text captions and other effects. Users are allowed to share that multimedia, called ‘snaps,’ to a private or semi-public group of users.” United States v. Gordon, 339 F. Supp. 3d 647, 653 n.1 (E.D. Mich. 2018). Perhaps the most notable feature of Snapchat, as differentiated from other social media applications, is that the multimedia messages are automatically deleted soon after they are sent, unless saved by the user. See id. (“The primary concept behind the application is the capturing of moments: the multimedia created by users are only available for a short time before they become inaccessible.”).

[3] According to the transcript, the prosecutor stated that “J thought it was pretty funny over here.” The transcript omits the full names of the juveniles involved and refers to each of them by first initial, which leads to some potential confusion because both Victim and J.R.H. have names that begin with J. However, the best reading of the transcript—and certainly the one most in keeping with our duty to view the testimony in the light most favorable to the juvenile court’s findings—is that the prosecutor was referring to J.R.H. and not Victim as having laughed during Cousin’s description of the beating.

[4] The court made no additional findings, but none were required in this case. See Utah R. Juv. P. 44(a) (stating that, “[i]f, upon the conclusion of an adjudicatory hearing, the court determines that the material allegations of the petition are established, it shall announce its ruling,” but that “[i]n cases concerning any minor who has violated any federal, state, or local law . . . , findings of fact shall not be necessary”).

[5] As we did in State v. Jok, we elect not to address the issues— unbriefed by the parties—as to “whether, in a bench trial, the issue of inherent improbability needs to be specifically raised before the trial court in the first instance in order to preserve the issue for appeal,” and “whether the inherent-improbability doctrine applies at all to bench trial verdicts, where the trial court has presumably not only determined that sufficient evidence existed but that this evidence met the burden of proof beyond a reasonable doubt.” See State v. Jok, 2019 UT App 138, ¶ 20 n.8, 449 P.3d 610, cert. granted, 456 P.3d 386 (Utah 2019). In light of the fact that the State does not assert that J.R.H.’s inherent-improbability argument is unpreserved, or that the doctrine does not apply in appeals from bench trials, we simply proceed to address the argument on its merits. See State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982.

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Can the courts force you to testify against someone?

Can the courts force you to testify against someone?

In a manner of speaking, yes. You do not have the the option of being a witness if you are ordered by the court to to testify.

The way you are ordered by the court to testify is by a subpoena.

If, in response to the subpoena, you attempt to refuse to come to court and/or testify, the court can hold you in contempt of court, which means it can take certain actions to make you suffer until you agree to testify.

That means that the court can fine you for refusing to testify in compliance with the subpoena.

It also means that if you refuse to come to court the judge can not only fine you, but it can issue a bench warrant to have the police go out and find and arrest you and put you in jail until you testify.

If you lie under oath as a means of avoiding testifying truthfully, that’s perjury, and if you are caught lying under oath you can be charged with a felony, which, if you were convicted, could or would result in fines and incarceration.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Excluding-plea-agreements-can-the-courts-force-you-to-testify-against-someone/answer/Eric-Johnson-311?prompt_topic_bio=1

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What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-does-a-judge-ask-a-child-in-a-custody-case/answer/Eric-Johnson-311

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I represent myself in family court: why does the judge ignore my evidence?

If I go into a custody hearing representing myself, how come the judge will not look at any of my evidence or even give me the chance to talk?

It’s due to at least one of the two following things:

Number 1 (and most likely): the “evidence” that you believe is important or that the court needs to see is either not admissible (because you filed it incorrectly or filed it late) or it is not relevant. Relevance is defined as follows:

Utah Rules of Evidence, Rule 401. Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

When the judge rejects irrelevant stories and irrelevant documents and photographs, pro se litigants (“pro se” and “pro per” are terms for people who represent themselves without an attorney in legal proceedings) they think the court is “not listening to” or “not looking at” evidence when in fact the court is listening and considering the evidence but then rejecting it—and properly rejecting it—as irrelevant.

Additionally, the rules that govern the practice of law can be quite technical. And frankly, what many people believe to be relevant evidence is anything but. People who are not lawyers who go to court to argue their own cases usually end up wanting the court to hear and review stuff that isn’t very helpful to the court in its efforts to learn the facts and decide which party should win or lose.

Another problem with pro se litigants is their ignorance of laws and legal procedures. They don’t understand the procedures for making oral arguments in court, they don’t know how to make proper objections, they often end up filing the wrong documents, forget to file necessary documents, miss deadlines, etc. So if you’re going to try to represent yourself in court, make sure you have at least a solid rudimentary understanding of court rules and the rules of evidence. If you don’t get such a basic understanding under your belt before you go to court, you’d likely be much much better off hiring an attorney to assist and represent you.

Number 2 (and this shouldn’t happen, but it does happen far more often than you’d think): the court simply doesn’t like you, doesn’t take you seriously, has it in for you because you are a pro se litigant. Why?

(Now the next few words of mine that you’re about to read are not meant to offend you, they are simply meant to share with you some hard and unfortunate truths.)

First, the majority of pro se litigants are usually among the least intelligent of litigants. Pro se litigants are often poor and are often poor because they are not very intelligent and/or in many cases mentally ill. In fairness to our judges, it doesn’t take long for them to learn this for themselves. And thus, after many years on the bench, when they pick up a case file that involves at least one pro se litigant, most of these poor judges groan inwardly, and with good reason. Odds are that this is going to be a tough case because these pro se litigants don’t know the rules and don’t know the law which inevitably leads to procedural chaos, silly and long-winded arguments, and a lot of wasted time and wasted judicial resources. Dealing with these kinds of pro se litigants makes the job of being a judge miserable.

Second, there are many judges who take offense at the fact that someone would dare try to represent himself or herself without a lawyer. “It’s as though these pro se litigants think that they are just as good as those of us who went to college and law school without having to make the sacrifices those of us in the legal profession made.” It’s this way in a lot of other jobs and professions. Someone who can pick up the guitar and play like a master naturally is often envied and resented by those who have worked so hard to reach the same level. That’s not fair, but it is human nature, and there are a lot of judges who let this weakness cloud their impartiality and their judgment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/If-I-go-into-a-custody-hearing-representing-myself-how-come-the-judge-will-not-look-at-any-of-my-evidence-or-even-give-me-the-chance-to-talk/answer/Eric-Johnson-311

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State v. Rivera – 2019 UT App 188 – child abuse

2019 UT App 188 – State v. Rivera

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
OYAH TONGSON RIVERA,
Appellant.

Opinion
No. 20180546-CA
Filed November 21, 2019

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161908011

Teresa L. Welch, Maren E. Larson, and Heidi Buchi, Attorneys for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1        A jury convicted Oyah Tongson Rivera on three counts of child abuse. The abuse involved Rivera repeatedly using pliers to pinch her three stepchildren. Physical examinations revealed scarring and cuts all over the children’s bodies. All three children told doctors, investigators, and others that Rivera inflicted the injuries. In later statements before and at trial, the children recanted. The jury nevertheless found Rivera guilty. We affirm.

BACKGROUND[1]

¶2        In June 2016, three siblings—K.S., a boy age 12; F.S., a boy age 10; and H.S., a girl age 8—told their father (Father) that Rivera, their stepmother, had been abusing them.[2] The children told Father that when Rivera got angry with them, she would call them into her room, pull a pair of pliers out of a drawer, and pinch them repeatedly all over their bodies. After seeing the marks and learning that Rivera had forced K.S. and F.S. to beat H.S. the day before, Father consulted his attorney, who took the family to a YWCA. The YWCA called the police.

The Investigation

¶3        Police officers performed a welfare check at the house where the children were being cared for by their seventy-year-old, ill grandfather. The officers could see that the children had marks, scars, and cuts—some readily visible and some under their clothing—all over their bodies. The officers also saw large bruises on the sides of H.S.’s face. They then contacted Father and brought him to his house. Rivera was arrested that night.

¶4        The next morning, Father brought the children to meet with Child Protective Services (CPS) for initial interviews. CPS determined that the grandfather was not healthy enough to have caused the injuries. CPS also investigated Father by interviewing him on multiple occasions and repeatedly checking in on the children outside Father’s presence to verify their safety.

¶5        A few days later, a child abuse pediatrician (Doctor) conducted a physical examination of each child. As part of the exams, Doctor took a medical history. Each child separately told Doctor that Rivera had inflicted the marks on their bodies by using pliers to pinch them on multiple occasions. Specifically, K.S. told Doctor that the pinching occurred “once or twice a week” over the previous eight months. K.S. explained that when “something bad would go on inside [Rivera’s] head,” she would pinch them with the pliers. Doctor also observed scarring and cuts all over the children’s bodies, including on their arms, hands, chest, stomach, back, legs, and genitalia.[3]

¶6        In summarizing her conclusions of the physical exams, Doctor stated,

These three children gave a history of abusive behavior by their [step]mother, plier marks and scratches. They had multiple marks consistent with this. And I concluded that the marks were abusive in nature. I felt that was physical abuse and psychological abuse because this was repeated over time, both according to the history. And on physical [examination], we can say that there was more than one episode of abuse. I think that that’s psychologically bad because . . . these actions are akin to torture. And they would anticipate that it might happen again. I also feel that the boys being forced to hit [their sister], according to the history, is psychologically damaging.

¶7        A few days later, the children were each interviewed individually by a detective (Detective) at the Children’s Justice Center (CJC). K.S. told Detective that Rivera scratched, kicked, punched, and slapped the children, stating, “She does the same thing every time she gets angry. She slaps us, kicks us, [and] pinches us with pliers.” He also described other punishments: being hit in the head with a can of food; being beaten with a wooden ladle; having a water mug broken on his head; and being forced to kneel on uncooked rice, peas, and peppercorns while holding books in his outstretched arms. Finally, K.S. described an incident where Rivera ordered him and F.S. to punch H.S. for not reading the dictionary loudly enough.

¶8        F.S. recounted many of the same details at his separate CJC interview. He said Rivera pinched him with pliers or her fingernails when he did “the same mistake all over again and again” or when he did not “take responsibility when she’s not . . . around.” F.S. also revealed that Rivera ordered him and K.S. to punch H.S. in the face and torso.

¶9        In her CJC interview, H.S. revealed that Rivera pinched her with pliers all over her body, including her legs, her stomach, her arms, her torso, and her shoulders. When asked why Rivera pinched her with pliers, H.S. stated, “[B]ecause I never learn and I never talk to her and I never ask her, I never told her the things that I am doing . . . . I only say I will learn, I will learn, I will ask, I will ask, I will talk to her. And then I never do it. I forget.” H.S. also recounted the incident when Rivera ordered K.S. and F.S. to punch and slap her for failing to read the dictionary loudly enough.

¶10 When interviewed by CPS, Rivera admitted to “pinching [H.S.] with the pliers one time” and pinching K.S. “with her acrylic nails” as disciplinary punishment. Rivera complained that she was frustrated because Father was cheating on her, Father forced her to have sex, and she had to take care of the children—including homeschooling them—even though she was just their stepmother.

¶11 Later, when asked by Detective about the marks and bruises on the children, Rivera stated that “she wasn’t the only one that did this to the children.” She told Detective that she had “used force, like hurt [the children] physically, just so they obey me.” But she also expressed remorse, saying, “I know this is bad because I hurt them, but it’s not like I’m doing it for fun . . . . I don’t want to abuse the children.” However, Rivera refused to answer Detective’s questions about whether she ever used pliers to pinch the children. Regarding the dictionary incident, Rivera told an officer that K.S. is “the big brother. I don’t have to hurt [H.S.]—don’t have to hurt them. Let [K.S.] do it.” Finally, Rivera told Detective, “The incident that happened with [H.S.] . . . I was ready to surrender . . . . This is the worst thing I’ve ever [done].”

¶12 About two years later in April 2018, Doctor reevaluated the children shortly before the trial. Many of the marks had cleared; and although some remained, there was no indication of new injury from abuse. However, the children offered a different explanation to Doctor for the marks on their bodies from what they had told her two years earlier. H.S. told Doctor that Rivera was going to leave, so the children inflicted the injuries on each other “to make her feel sorry for them so she wouldn’t leave.” K.S. told Doctor the same thing: “We made up that [Rivera] did it, but really she was going to leave and we did it to ourselves so that she would feel sad for us and she would stay.”[4] F.S. told Doctor substantially the same story about the source of the injuries. When Doctor confronted him about the disparity, F.S. replied, “I never said that.” In her trial testimony, Doctor confirmed that it is not uncommon for children to recant allegations of abuse.

The Trial

¶13 At trial, the children repeated that they had caused the injuries to themselves. They explained that because Rivera and Father were constantly fighting, they feared Rivera was going to leave and reasoned that once she saw their injuries, she would feel sorry for them and stay. But much of the children’s testimony at trial conflicted. For example, K.S. said they came up with the plan to blame Rivera for the injuries when the police arrived, but he was unable to explain how they communicated their plan to each other on such short notice. F.S. said that the three children sat down and talked over the plan before the police arrived. With regard to coming up with the plan to pinch themselves, K.S. testified that he and H.S. formulated the idea in their bedroom and later told F.S. about it. F.S. testified that the three hatched the plan together in the living room. H.S. said K.S. made up the plan and told her and F.S. about it.

¶14 The children’s trial testimony was also significantly inconsistent with regard to how they received the injuries. Among these pervasive inconsistencies, K.S. testified that he alone pinched his own arms and stomach, but earlier he said F.S. had caused some of his pinch marks. F.S. testified that he didn’t want to pinch himself because he knew it would hurt, so he asked his brother to do it for him. But he later said that he pinched himself.

¶15 Rivera faced three counts of child abuse, one count of witness tampering, and one count of assault.[5] After the State closed its case-in-chief, Rivera moved for a directed verdict based on insufficiency of the evidence on all counts. Citing State v. Robbins, 2009 UT 23, 210 P.3d 288, Rivera argued that the “prosecution can’t be said to have proven their case beyond a reasonable doubt, because there [was] so much variance and differing between the testimony of all of [the witnesses] regarding what happened and who actually did what they did.” The district court granted the motion with respect to the counts for witness tampering and assault but denied it for the counts of child abuse.

¶16 Rivera then testified, denying that she ever pinched the children with pliers, forced them to hit each other, or made them kneel on objects. She also said that she first saw injuries on the children via Skype when she lived in the Philippines and they lived in Bahrain with Father. She said she went to Bahrain to be with the children because they were “reaching out” to her and because she believed they were being “tortured.” She testified that she agreed to marry Father because he said he could help her get a U.S. visa.

¶17      Father also testified at trial. He acknowledged that he had cheated on Rivera, but he denied ever hitting, biting, or using fingernails or pliers to pinch the children. Rivera’s son testified that he had seen Father discipline the children in Bahrain by slapping their faces and lifting them by their shirts. Rivera’s sister testified that she saw Father drop H.S. on a couch and “bit[e] her butt.”

¶18      The jury convicted Rivera of three counts of child abuse. Rivera appeals.

ISSUE AND STANDARD OF REVIEW

¶19 The sole issue on appeal is whether there was sufficient evidence to convict Rivera of child abuse where the three children testified at trial that Rivera had not pinched them, contradicting some of their pretrial statements, in which they stated that she had. Rivera argues that this lack of consistency between trial testimony and pretrial statements creates a situation in which the accusations against her are “too inherently improbable to support the verdict.” “When a jury verdict is challenged on the ground that the evidence is insufficient, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict.” State v. Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503 (cleaned up). “And we will not reverse a jury verdict if we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up). Thus, “we may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.” State v. Graves, 2019 UT App 72, ¶ 17, 442 P.3d 1228 (cleaned up).

ANALYSIS

¶20 Rivera contends that there was insufficient evidence to support her convictions for child abuse. Specifically, she argues that (1) the children testified at trial that Rivera did not abuse them, (2) her admission that she used her nails to pinch K.S. on one occasion does not constitute child abuse but is reasonable parental discipline, and (3) trial evidence supports the conclusion that Father more likely caused the scars on the children. In support of this claim, Rivera argues that the children’s pretrial allegations that she pinched them with pliers are “too inherently improbable to support the verdict.” In effect, Rivera urges us to determine that the children’s pretrial statements were inherently improbable and to rely only on the trial testimony. Thus, we first address whether the children’s statements were inherently improbable. Then, having determined that they were not, we consider whether there was sufficient evidence to support Rivera’s convictions for child abuse.

I. Inherent Improbability Exception

¶21 An appellate court is “not normally in the business of reassessing or reweighing evidence” and resolves “conflicts in the evidence in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (cleaned up). Indeed, “there is perhaps no more axiomatic statement when reviewing jury verdicts than this: The choice between conflicting testimony is within the province of the jury.” State v. Cady, 2018 UT App 8, ¶ 23, 414 P.3d 974 (cleaned up). But “in some unusual circumstances we will conclude that the testimony presented to the jury was so unreliable that it cannot form the basis of a conviction.” Prater, 2017 UT 13, ¶ 32 (cleaned up). Such a rare circumstance exists when “the evidence is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” State v. Workman, 852 P.2d 981, 984 (Utah 1993).

¶22 In State v. Robbins, our supreme court articulated “the scope of the inherent improbability” exception. 2009 UT 23, ¶¶ 13, 19, 210 P.3d 288. A court can “reevaluate the jury’s credibility determinations only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt. The existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” Id. ¶ 19. In Prater, the court clarified the Robbins formulation of the inherent improbability exception by stating that it is “inconsistencies in the [witness’s] testimony plus the patently false statements the [witness makes] plus the lack of any corroboration that [allows a] court to conclude that insufficient evidence [supports a defendant’s] conviction.” 2017 UT 13, ¶ 38.

¶23 This “narrow” formulation of the exception found in Robbins and Prater presents “a significant barrier in succeeding on claims of inherent improbability.” Cady, 2018 UT App 8, ¶¶ 17–18. Thus, “[i]t is difficult to successfully establish such a claim on appeal.” Id. ¶ 18; see also State v. Doyle, 2018 UT App 239, ¶ 17, 437 P.3d 1266 (stating that “the inherent improbability [exception] has very limited applicability and comes into play only in those instances” that satisfy the approach adopted in Robbins and Prater (cleaned up)); State v. Ray, 2017 UT App 78, ¶ 25, 397 P.3d 817 (“‘Inherent improbability’ . . . does not apply more generally to cases involving a victim’s incredibility—not even significant incredibility.”), cert. granted on other grounds, 406 P.3d 250.[6]

¶24 Just as the court in Robbins plainly stated that any additional evidence supporting the verdict would preclude a judge from reconsidering a witness’s credibility, Robbins, 2009 UT 23, ¶ 19, under Prater, if an appellant fails to show all three elements—material inconsistencies plus patent falsity plus lack of corroboration—a judge is likewise precluded from reconsidering witness credibility, 2017 UT 13, ¶ 42 (stating that a court may find witnesses’ testimony inherently improbable only when “no other circumstantial or direct evidence support[s] the defendant’s guilt” (cleaned up)); see also State v. Crespo, 2017 UT App 219, ¶ 27, 409 P.3d 99 (stating that under the inherent improbability exception, the credibility of a witness’s testimony may be reassessed only when such testimony “is the sole evidence that a crime was even committed and there is a complete lack of circumstantial evidence” (cleaned up)). On appellate review, because all three elements of the inherent improbability exception must be met under Prater, where we identify that any one of them is missing, the claim of inherent improbability fails.

¶25      Rivera’s claim of inherent improbability fails because the children’s pretrial statements were corroborated. Rivera argues that the children’s statements lack corroboration because (1) no testimony was presented at trial of anyone—other than the children—seeing Rivera inflict the injuries, (2) Rivera’s pretrial admissions of using force against the children constituted reasonable parental discipline, and (3) physical evidence was lacking since the pliers were never tested for Rivera’s fingerprints. But in making this claim, Rivera ignores other evidence that supports the verdict.

¶26 The children uniformly reported the abuse—and identified Rivera as having inflicted it—to Father, to Detective during the CJC interviews, and to Doctor. See Prater, 2017 UT 13, ¶¶ 13, 43 (noting the consistent testimony among the three witnesses). In addition, the details in the children’s statements about the abuse corroborated each other. Each child told of Rivera using pliers to pinch them, and the children all recounted the incident of Rivera telling the brothers to beat their sister. And insofar as physical evidence is concerned, the photographs taken during the physical examinations reveal numerous scars consistent with having been pinched by pliers on multiple occasions. Indeed, Doctor, after examining the extensive scarring on the children’s bodies, described the abuse they suffered as “akin to torture.” And Rivera downplays her pretrial admissions of abusing the children. She admitted to pinching H.S. with pliers and pinching K.S. with her nails. When confronted about the scars and marks on the children, Rivera justified herself by saying that “she wasn’t the only one that did this to the children.” Finally, she admitted that she told the brothers to discipline H.S. for not reading the dictionary loud enough.

¶27 In sum, the children’s pretrial statements, made during the investigation, were corroborated. Therefore, they cannot be characterized as inherently improbable.

II. Sufficiency of the Evidence

¶28 “In considering an insufficiency-of-evidence claim,” an appellate court will not reverse a jury verdict provided it can “conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up). We conclude that such evidence exists to support the jury’s verdict.

¶29 Resting her argument on the foundation that the children’s statements made during the primary investigation were inherently improbable, Rivera asserts that she was convicted on insufficient evidence. She asserts insufficiency in three different ways. We address each in turn.

¶30 Rivera first argues that the children’s trial testimony— because it was made under oath—should be afforded greater weight than their pretrial statements. And based on the children’s trial testimony alone, Rivera contends that there was insufficient evidence for the jury, without relying on “speculation and conjecture,” to convict her. But, as demonstrated above, Rivera’s assertion that the children’s pretrial statements were inherently improbable fails. The children’s statements were properly accepted and weighed by the jury. And when evidence is disputed, as it was in this case, it is not for the court to resolve the conflict by excluding certain evidence from consideration. Rather, it is the jury’s job to sort through conflicting evidence and to assess the credibility of the witnesses. See State v. Cady, 2018 UT App 8, ¶ 23, 414 P.3d 974. Far from showing insufficiency, Rivera has simply identified a conflict in the evidence that requires resolution through deliberation of a factfinder, which is a function the jury has carried out here.

¶31 Second, Rivera claims that her pretrial admissions about disciplining the children were insufficient to support a finding that she caused “serious physical injury” to them under the Utah Code. See Utah Code Ann. § 76-5-109(1)(f)(ii)(E) (LexisNexis Supp. 2016) (stating that “any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions” constitutes “serious physical injury”). But Rivera’s argument is misplaced. It does not matter whether her pretrial admissions, standing alone, demonstrated child abuse. Rather, the factfinder considers the evidence taken as a whole. Indeed, discrete evidence in many trials would be insufficient to support a conviction if viewed in a vacuum, apart from other evidence. But we do not consider evidence in such a piecemeal and isolated fashion. Instead, we analyze whether there is sufficient evidence to support a verdict “in light of the totality of the evidence.” State v. Ashcraft, 2015 UT 5, ¶ 27, 349 P.3d 664.

¶32 Furthermore, Rivera’s pretrial statements—when considered with all the other evidence—support her conviction. She admitted to hurting the children. She admitted to using pliers to discipline H.S. She admitted to pinching the children with her nails. She admitted to having K.S. and F.S. punch H.S. All three children’s statements to investigators corroborate these same events. Furthermore, as described above, the abusive nature of Rivera’s admitted methods of discipline are corroborated by the physical-examination photographs and by Doctor’s testimony.

¶33 Third, Rivera argues that the testimony about Father reveals that he most likely injured the children. Citing State v. Cristobal, 2010 UT App 228, 238 P.3d 1096, Rivera asserts that because there is evidence that Father may have abused the children, the jury’s verdict convicting her was based on “speculation and conjecture” and unreasonable inferences. But Rivera’s argument employs an overly broad understanding of “speculation.” Rivera would have us conclude that by presenting an alternate explanation for the children’s injuries, she has established that her conviction was based on speculation. This is incorrect. “A jury draws a reasonable inference if there is an evidentiary foundation to draw and support the conclusion. In the case of speculation, however, there is no underlying evidence to support the conclusion.” Salt Lake City v. Carrera, 2015 UT 73, ¶ 12, 358 P.3d 1067. As explained above, there is certainly an evidentiary foundation from which to draw and support the conclusion that Rivera pinched the children with pliers and otherwise abused them.

¶34 Rivera’s insufficiency-of-the-evidence argument is unpersuasive because the “existence of a conflict in the evidence does not render the totality of the evidence insufficient. It is the role of the factfinder to examine and resolve such conflicts.” State v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644. And that is precisely what the jury did in this case. It considered the conflicting evidence and served “as the exclusive judge of both the credibility of witnesses and the weight to be given to particular evidence” in convicting Rivera of child abuse. Id. (cleaned up).

CONCLUSION

¶35      Rivera’s claim that the children’s pretrial statements were inherently improbable fails because the statements were corroborated. And Rivera’s claim that she was convicted on insufficient evidence fails because there was ample evidence to support the verdict rendered by the jury. We therefore affirm.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Maese, 2010 UT App 106, ¶ 2 n.2, 236 P.3d 155.

[2] These were the ages of the children when they reported the abuse in 2016.

[3] Photographs of the children entered into evidence verify the extent of their injuries. In reviewing these photographs, one might mistakenly conclude that the children had been peppered with a shotgun blast based on the density of the scarring to their bodies.

[4] About this same time, K.S. told his ecclesiastical leader that the children had pinched each other and had made up the story about Rivera inflicting the abuse.

[5] Regarding the last two counts, the Information stated that (1) the children had observed Rivera beat Father and (2) Father revealed that Rivera beat him and threatened to have him deported if he reported her abuse of the children.

[6] Undue micro-focus on the elements of the inherent improbability exception often leads to legal myopia where the ultimate question—whether a reasonable jury could find a defendant guilty beyond a reasonable doubt—is lost in the details. A case which actually falls within the Robbins–Prater rubric is exceedingly rare. In fact, we have not found a single Utah decision examined under that rubric that has reversed a verdict since Robbins.

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Mental Health Professionals: How to Make Good (and honest) Use of Them in Divorce and Child Custody

Many spouses and parents going through a divorce and child custody case may believe there is value in using mental health professionals. This can be true, if you use mental health professional services correctly. This is a case of the right tool for the job.

Whether they help you and your children by counseling with you outside of the court proceedings or help by providing expert witness analysis and testimony in the court case itself, they can provide valuable help. But first, you need to understand what mental health professionals can and cannot do and what they are willing and unwilling to do for you.

Used properly, mental health professional services can ease the pain of divorce for parents and children alike. Used properly, mental health professional services can clarify and strengthen your case in court.  But too often I see litigants using mental health professional in clumsy, ham-fisted, malicious, and counter-productive ways.

This October 16, 2018 article from Family Lawyer Magazine explains this distinction very well, and I commend it to anyone who wonders whether he/she should utilize the services of a mental health professional and how to do so effectively.

Mental-Health Professionals & High-Conflict Divorce: 7 Pitfalls to Avoid
From: Family Lawyer Magazine

Mental-Health Professionals & High-Conflict Divorce: 7 Pitfalls to Avoid

Utah Family Law, LC | divorceutah.com | 801-466-9277

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My list of YouTube videos I like best on successful depositions

Here it is: my list of YouTube videos that I like best on how to identify, prepare for, and give a successful deposition.

#1 Attorney Richard LaGarde has spent over thirty-five years preparing witnesses for their depositions. During his long and successful career he has seen just about every possible trick used by lawyers in depositions and nearly every mistake that can be made by a witness.  He created this series of seven short videos to prepare his clients for their depositions.  He decided to share his tips with the general public because everyone should know how to give a great deposition.  If his tips are helpful to you, please leave a nice review on YouTube. See the entire free series of Mr. LaGarde’s seven deposition videos at this link (click here)

or click here:

https://www.lagardelaw.com/practice-areas/personal-injury/how-to-give-a-great-deposition/

Here are more gems below. Some videos are older than others, and production values vary, but don’t judge a book by its cover.

You’ll notice a lot of this great advice repeats itself. That’s not an accident. Clients who aren’t prepared and who don’t understand what a deposition is and is not usually perform awfully at depositions (ignore this advice at your peril):

Four Rules of Answering [deposition] Questions

6 Tips to Give a Great Deposition (by Matt Eason)

Preparing for a Deposition in a Business Case (the advice is still very good and very applicable for cases other than just a business case)

7 Deposition Tips from Brigham Cluff

Why Do I Have to Give a Deposition? (also by Brigham Cluff)

Deposition Training for Witnesses

Here’s a clip from a longer video, but what the clip contains is good: https://www.youtube.com/watch?v=0YqKWqK-aTY

How to Give Testimony on the Witness Stand

Deposition Prep 101

Attorney Steve’s Ultimate Deposition Tips

BONUS: here is the link to my deposition preparation guide: Cool as a Cucumber

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Cool as a Cucumber : How to Testify Successfully at Your Deposition or in Court in a Utah Domestic Relations Case

Cool as a cucumber[1]. Is that you? It can be.

When it comes to testifying, follow the Golden Rules:

1. Always tell the truth.

2. Simply telling the truth is not enough sometimes. You must understand the purpose and “the language” of testimony, and the relevance to the litigation of your responses you give when testifying.

3. Your deposition/testimony can rarely, if ever, do anything but hurt you.

4. Be prepared.

5. Before you answer, hear the question, understand the question.

6. Think about the—truthful—response to the question before you answer or speak.

7. Do not volunteer information; answer only the question asked.

8. 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—when they are true.

11. Do not guess, speculate, or surmise in responding to a question.  You testify as to what you know.

12. Stick to the facts.

13. Behave professionally and maturely. Don’t argue with the lawyer.

14. You are never “off the record”.

15. Know your role in the process (See Rules 2 and 3 above).

I have observed testimony that made the difference between winning and losing the case. This means I’ve experienced testimony that snatched victory from the jaws of defeat in a weak case, and I’ve also experienced testimony that resulted in losing an argument my clients could have or should have won.

The following principle applies to you, whether you like it or not: the overwhelming majority of people are not inherently talented testifiers.[2]

Testifying successfully under oath is somewhat counterintuitive. Learn how it works before you do it for real, for all the marbles.

Learning how to testify properly and effectively is not hard to understand and not hard to do. But you must learn it. Again, I warn you: you don’t already know it. You don’t. Really, you don’t. I know you think you do. How hard can it be? “I have nothing to worry about,” you may say, “because I am just going to tell the truth.” It’s. Not. That. Simple.

I am literally begging you to read all of this booklet carefully (make notes in the margins, highlight key parts, teach it to someone else, know this stuff cold), so that you know what proper and effective testify is AND how to testify properly and effectively yourself.

Ignore this advice at your and your case’s peril. Follow this advice to your case’s guaranteed benefit.

FOLLOW THE GOLDEN RULES

  1. Always tell the truth.

While telling the truth may not necessarily limit your exposure or benefit every aspect of your case, lying or playing fast and loose with the truth will undoubtedly increase your potential exposure and almost certainly damage your credibility and by extension, your case.

Examples:

Suppose you are seeking a divorce on the basis of, among other things, your wife committing serial adultery. Suppose also that during a heated argument you did in fact call your wife a slut. Now imagine that you are being questioned on the witness stand:

Right Way Wrong Way
Question:  “Did you drink an alcoholic beverage in the car with the kids in the car?”

Answer: “Yes.”

Question: “Did you drink an alcoholic beverage in the car with the kids in the car?”

Answer:  “No.”

Even if you feel embarrassed by having to answer yes to the question above, it’s better to be honest than to lie. It’s necessary to be honest. Lying is not an option.

But you might think, “Aha, I’ve nothing to lose. It’s his/her word against mine!”  But then this happens:

Right Way Wrong Way
 

Question:  “Did drink in the car with the kids in the car?”

Answer: “Yes.”

Question:  “Did drink in the car with the kids in the car?”

Answer:  “No.”

Question:  “I’m now going to show you a video posted by your son on his personal Facebook page in which you appear . . .”

Honesty is the best policy. It’s the only policy. Truth may hurt, but lies hurt you even more.

  1. Simply telling the truth is not enough sometimes.

You must understand the purpose of testimony, “the language” of testimony, and the relevance to the litigation of your responses you give when testifying. The reasons for taking your deposition or being questioned on the witness stand may be numerous. Understanding the reason for you being questioned, as well as having a deeper understanding of the process, will enable you to testify both truthfully and intelligently. Read on to understand the purposes of testimony in a court case. They are not what you think.

  1. Your Deposition/Testimony Can Rarely, If Ever, Do Anything But Hurt You

Consider what that heading above, that you just read, means:  your deposition can only hurt you. A deposition is taken for several reasons; it is important to realize what a deposition is and is not.

A deposition/testimony is not taken to exonerate the person being deposed/questioned.

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, with rare, rare, rare exception (so rare as to be insignificant, virtually non-existent) does a deposition win a case. But a badly given deposition can (and often does) lose a case (and surprisingly easily too).

Generally, your testimony will hurt you. So do your best to (honestly) minimize the damage.

Repeat:  your deposition/testimony can rarely, if ever, do anything but hurt you. This means you don’t try to make your deposition your personal soapbox. Don’t even think about it. Don’t. I really mean it.

Why You Are Deposed

  1. One reason you are deposed/questioned 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 better prepare his or her case for trial.
  2. Another reason is to develop impeachment[3] evidence and admissions against your interest. The attorney deposing (that’s the term for questioning you in your deposition) you 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 from those questions when asked at the trial, the attorney will read back portions of your deposition testimony taken previously and try to impeach you (that is to say, make you out to be a liar).
  3. Most important, a deposition and/or being questioned at trial 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 or lawyer that his/her case has no merit. You may be eager to explain your actions or explain why the opposing party is in the wrong.

!!Stop!!

Slap your own face for me here and say to yourself, “Snap out of it!”

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. People who disregard this sage advice are too clever by half, and they get burned. Ignore this advice at your peril. You have been more than fairly warned.

At the trial, your attorney will ask you questions (both in direct examination and in cross-examination) 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” at the deposition stage of litigation, it is essential for a successful deposition and favorable resolution of your involvement in the lawsuit.

Think of it this way too: the deposition is for the judge, not for you. Give the judge what the judge needs to know, not what you want to yammer about.

The Deposition Process

A deposition is taken in an informal setting.

It is usually in an attorney’s conference room.

There is no judge present.

Your attorney will be with you while you are deposed to make objections to any improperly posed questions.

There is plenty of water to drink. If you need to get up to use the restroom, you may, without having to ask permission. You simply say to the attorney questioning you, “I need to be excused to use the restroom.”

The attorney (or attorneys) questioning you may appear to be informal, even 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/questioning, 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. Do not be fooled. Remember, this is an adversarial system. The opposing attorney is never your friend. Never.

Another way the attorney questioning you may attempt to establish control is through intimidation. If you are prepared for your deposition/questioning and are familiar with the ins and outs of the process, you will not be intimidated. If you are unsure about any aspect of your deposition/testimony, then please, for your own sake, talk to your attorney in advance!  Once you’re in the deposition hot seat, the time for preparation has passed, for good.

Don’t worry about looking foolish or unsophisticated with your attorney—your attorney’s purpose is to educate you and polish you up. Your attorney is on your side! Your attorney wants you to succeed. Use the help. Now! No question is too silly to ask your attorney, and no silly question is more damaging than the one unasked, when it could have done you some good before you’re in the hot seat and have nowhere to turn. 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, or worse. 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, and the attorney will therefore be 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 often 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 opposing attorney. Be confident, however, that because you read this document in your hands before your deposition (and well before your deposition, not in the car on the drive over), you already have an understanding of the deposition process and are ready for the challenges that lie ahead.

  1. Be prepared.

Being deposed or being questioned in court will often be about an incident or incidents that happened a long time ago. It is critical that you review all relevant records beforehand.

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, i.e., what are you fighting over?

Right Way Wrong Way
You review your expenses and the documentation you have in support of these expenses weeks before your deposition or court date, so you know—and can show from the documents—that you need $1,300 in alimony.

Question:  “So how much do you need to meet your monthly needs?”

Answer:  “$1,300.”

Question: “Oh, really?”

Answer: “Yes.”

Question: “And how do you know that?”

Answer: “You have my receipts, credit card, and bank statements in my Financial Declaration which show my personal monthly expenses are $2,560 per month, and I net $1,260 per month from my full-time job, so the difference is $1,300.”

———————————–

Or let’s assume you were caught off guard with questions about alimony. If so, ‘fess up. Be prepared to admit you don’t know without your ignorance making you look like a blubbering fool:

Question:  “So how much do you need to meet your monthly needs?”

Answer:  “I’m not sure yet.”

Question: “Oh, really?”

Answer: “Yes.”

‘Turns out you need $1,300 in alimony, but you don’t review your expenses or their supporting documentation, so you have no idea it’s that much. And then you are asked, under oath:

Attorney:  “So how much do you need to meet your monthly needs?”

You answer:  “Oh, I’d say around $800 or $900, tops.”

Attorney: “OK, thank you.”

Video recorded depositions (also known as “sound-and-visual” recordings)

The guidelines in this booklet are even more critical in a video recorded deposition (because a video recorded deposition can be shown at the trial). While being video recorded, you must be aware that you are potentially speaking to the judge, not just the attorneys present at the deposition. So present yourself well.

Avoid engaging in any distracting mannerisms, such as shifting in your seat, gazing helplessly at your attorney, tapping your pen, twisting in your chair, shuffling papers or fussing with your cup.

Whether you feel happy and relaxed or not, look that way on camera. No one likes a tense grump or a creepy witness. So sit up straight. Dress sharp. Get a shave and a haircut. Look alive. Look appealing.

The deposition is being audio taped as well. Unlike a written transcript, the judge can see and hear the tone of your responses in a video recorded deposition.

  1. Before you answer, hear the question, understand the question.

It is the questioning attorney’s responsibility to articulate intelligible questions. If you do not understand the question, say so. DO NOT allow your pride to stand in the way of understanding a question. Don’t let your fear of looking foolish cause you to answer a question you don’t understand—that will guarantee you look foolish.

It is not your responsibility, however, to help the attorney formulate an understandable question.  Do not answer a question that isn’t asked. Do not ask the attorney, “Did you mean to ask ________?”—that’s suicide.

Right Way Wrong Way
Question:  “Do you have any children?”

Answer:  “Yes.”

Question:  “How many?”

Answer:  “Two.”

Question:  “Boys, girls?”

Answer:  “Two boys.”

Question:  “Are they minors?”

Answer:  “One of them is.”

[You hear the next question as possibly meaning] “Do you know who your sons’ (plural) teachers are?”; [when in reality it was meant to ask, “Do you know who your youngest son’s teachers are?”]  You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.

Question (as you hear it): “Do you know who your sons’ teachers are?”

Answer:  “Both of my sons’ teachers?”

Question:  “No, your youngest son’s, Jimmy’s teachers.”

Answer:  “Yes.”

Question:  “What are their names?”

Answer:  “Mrs. Brown, Ms. Tuttle, Mr. Cheever, and Mrs. Watson.”

Question:  “Do you have any children?”

Answer:  “Yes.”

Question:  “How many?”

Answer:  “Two.”

Question:  “Boys, girls?”

Answer:  “Two boys.”

Question:  “Are they minors?”

Answer:  “One of them is.”

[You hear the next question as possibly meaning] “Do you know who your sons’ (plural) teachers are?”; [when in reality it was meant to ask “Do you know who your youngest son’s teachers are?”]  You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.

Question (as you hear it): “Do you know who your sons’ teachers are?”

Answer:  “No.”

It is the questioning attorney’s responsibility to learn the facts. You are not required to volunteer this information without first being asked specifically, by him/her, to educate him/her in this endeavor. Even if the attorney acts (and it is acting) frustrated that you “aren’t being cooperative,” do not volunteer information that is not sought by a specific question. If you are one of those who squirms during awkward silences in a conversation, DON’T speak up just to fill the silence. Attorneys often try to get you to speak that way. It’s not rude to be silent in a deposition when there’s no question pending. Keep your mouth shut until an actual question is posed.

Watch out for compound questions. Compound questions are two or more questions asked in the same sentence.

EXAMPLES:

“Did you or your partner steal the money?”

“Are you alleging, Mr. Smith, that somehow your wife managed to place the house up for sale without your knowledge, show it to potential buyers, and close on the sale without you allegedly being present?”

Compound questions are scary because you may want to answer one part of the question with a “Yes” and the other part with a “No,” but if all you do is answer with a single “No” or with a single “Yes,” the court might think you were answering “No” or “Yes” to both parts of the question.

When you are asked a compound question, point it out. Then ask the attorney to break the question into two separate questions that you answer separately. It’s your right.

Right Way Wrong Way
Question:  “Did you withdraw the money from the joint account without your wife’s consent?”

Answer:  “That’s multiple questions in one.  Please break them up.”

Question:  “If you insist. First, how did you manage to withdraw all of the money from the joint account?”

Answer:  “That’s still two questions.”

Question:  “Fine.  Was it a joint account?”

Answer:  “No.”

Question: “Whose account is it?”

Answer: “Mine.”

Question: “Why do you consider it ‘yours’”?

Answer: “I opened previous to our marriage with $5,000 that I earned previous to our marriage.

Question:  “Did you withdraw all of the money from your separate account”?

Answer:  “No.”

Question:  “Did you withdraw any of the money from your separate account without your wife’s consent”?

Answer:  “Yes.”

Question:  “How much”?

Answer:  “$3,000.”

Question:  “Without your wife’s consent”?

Answer:  “Yes.”

Question:  “Why”?

Answer:  “I don’t need her consent to withdraw premarital money from my premarital account.”

Question:  “Did you withdraw the money from the joint account without your wife’s consent.”

Answer: Yes.

If you answer with “Yes,” the judge might think you withdrew the money from a joint account, which is not true.  You look like a liar.

If you answer with “Yes,” the judge might think you withdrew money without your wife’s consent, which is not true because you didn’t need her consent.

If you answer with “No,” the judge might think you’re claiming that you did not withdraw any money, when in fact you did.

Even though you told the truth, you can still look like a liar when it comes to compound questions. Learn how to tell the truth clearly and unequivocally.

If a question is too complex or ambiguous for you to easily understand, it is too complex or 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. If the question uses words you don’t understand, say so.

If you’re self-conscious about looking stupid, get over yourself fast. One of a lawyer’s most powerful weapons is the witness’s own pride and/or insecurity.

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 evasive or obstructive when the testimony is read by the judge. Asking the attorney to repeat a question as a ruse for stalling is pretty obvious too, so don’t do that either. If you need time to answer a question, take a brief, reasonable pause and then answer.

Do not overanalyze every question.

Right Way (What President Clinton should have done) Wrong Way
Question:  “The statement that there was no sexual activity of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”

Answer: “Yes.”

From the actual deposition of President Bill Clinton:

Question:  “The statement that there was no sex of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”

Answer: “It depends upon what the meaning of the word ‘is’ is. If ‘is’ means ‘is and never has been,’ that’s one thing, if it means ‘there is none,’ that’s a completely true statement.”*

*You’ll find this exchange from the deposition of President Clinton under the dictionary definition of “too clever by half.” My friend, regardless of your political affiliations, if you believe that the President’s answer did his case any favors, then you are likely in trouble when it comes time for your testimony.

Don’t be too eager to anticipate questions from the attorney deposing you. Anticipating questions you think may be asked could result in you divulging information you would never have otherwise been asked to divulge.

Do Don’t
Question: “Did you spank your son?”

Answer:  “Yes.”

Question: “OK, I’d like to move on why you want the family dog awarded to you . . .”

 

Question:  “Did you spank your son?”

Answer:  “Of course I did!  But only four times, not the five my spouse claims. And I wasn’t drunk when I spanked him, I’d only had two beers. That boy’s lucky I didn’t beat him senseless after what he did. And if he says I whipped him with a belt, he’s lying!”

Repeat this orally to yourself:  Do not over analyze every question or be too eager to anticipate questions from the attorney deposing you.

  1. Think about the—truthful—response to the question before you answer or speak.

What’s that again?  Pause and think before you speak.

Take your time when responding to questions.

Pause for about one, maybe two, full seconds (i.e., “one thousand one, one thousand two”) after each question. Seriously. This has many benefits:

1) It allows your attorney to formulate objections to any improper question.

2) It provides you with an opportunity to decide whether you know the answer and to determine how you will respond.

Don’t Do
Question:  “Do you consider lying bad behavior in a child?”

Answer:  “Yes.”

Question: “And do you think it appropriate to punish a child for lying–

Answer: [piping up while the lawyer is in mid-sentence] “Absolutely!”

Question: –by whipping him with an electrical cord?

Question:  “Do you consider lying bad behavior in a child?”

Answer:  “Yes.”

Question: “And do you think it appropriate to punish a child for lying by whipping him with an electrical cord?

Answer: “No.”

 

Do not try to talk over the attorney questioning you. It makes you look extraordinarily argumentative and rude, and it can create confusion (see above).

Remember: while you are not in control of the questions asked of you, you are in control of answering those questions. Don’t let the opposing attorney bully you into making snap responses (and he or she will try, oh how they’ll try).

Do not lie in the vain hope of looking like someone you ain’t. Clever lawyers will play on you pride and your vanity, luring you into telling face-saving lies so that they can then expose you as someone who is not honest, not credible.

Do not allow the attorney to interrupt you as you speak. If you are not finished answering a question, immediately (and kindly, calmly) advise the attorney that you have not finished (still, try to be brief in your answers—most questions you are asked should be answerable with yes, no, I don’t know, or “I don’t understand, please rephrase”). Likewise, pacing yourself will ensure that you do not interrupt the opposing attorney’s questions.

Do not antagonize or insult the attorney questioning you.  It usually backfires.  Do not argue with the attorney questioning you.  It makes you look defensive, foolish, and dishonest.

Don’t Do
Question: “Didn’t you think you were overreacting by talking to your son in that way?”

Answer: “I don’t know, I didn’t study psychology, did you, Mr. Know-It-All?”

Response from lawyer:  “Actually, yes, I did, when obtaining my master’s degree from Harvard.”

Question: “Didn’t you think you were overreacting by talking to your son in that way?”

Answer: “I don’t know.”

or: “No.”

or: “Yes.”

And do not look to be insulted by every word that issues from the mouth of the attorney questioning you. The purpose of many, even most, questions, is to expose weaknesses in you and in your case. I know the pressure is on you, but losing your cool only makes you look bad and does not make you look 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 questioning. There is no time clock or deadline for your answers. Pace yourself and remain in control of yourself.

  1. Do not volunteer information; answer only the question you are asked.

If you are asked whether you spanked your son, answer “yes” if you did, “no” if you didn’t. If you can’t remember whether you spanked him, say so. That’s it. Do not explain when you spank children, why you spank, or what behavior is deserving of a spanking. None of those things were asked, and so if you speak to these subjects you end up divulging unsolicited information the attorney questioning you might never otherwise have thought to ask you.

Do Don’t
Question: “Did you spank your son?”

Answer: “Yes.”

Question: “Did you spank your son?”

Answer: “Of course I did!  But only four times, not the five my spouse claims. And I wasn’t drunk when I spanked him, I’d only had two beers. That boy’s lucky I didn’t beat him senseless after what he did. And if he says I whipped him with a belt, he’s lying!”

If the attorney wants more information, he or she will ask a follow-up question.

Remember, this is not your opportunity to defend yourself or explain your side of the story. Volunteering information 1) risks divulging information that might never have been obtained; 2) risks having additional questions posed that might otherwise never have been asked, 3) can damage your case, and 4) prolongs your deposition.

  1. Do not let opposing counsel put words in your mouth.

Pay attention and be careful not to adopt “facts” just because the attorney questioning you mentions them. Don’t allow the attorney to put words in your mouth. Don’t accept his characterizations of people, events, data, and other facts.

Don’t Do
Question: “So you object to your ex-husband’s handling of the situation, correct?”

Answer: “Yes.”

Question: “Why?”

Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”

Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”

Answer: “Correct, that’s what I just said.”

Question: “But isn’t it true that after you discovered that your ex-husband checked your son out of school and enrolled him in a different school, you checked him out and enrolled him back into the old school?”

Answer: “Well, yes.”

Question: “But didn’t you just concede that it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent?”

Answer: “Wait, you’re twisting my words . . .”

Question: “So you object to your ex-husband’s handling of the situation, correct?”

Answer: “Yes.”

Question: “Why?”

Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”

Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”

Answer: “No, that is not what I said.”

Question: “Really?”

Answer: “Really.”

Question: “What did you mean to say, then?”

Answer: “What my ex did was wrong because he checked our son out of school and enrolled him in a new school without my consent, and our Decree provides that enrolling our child in a new school is a decision we must make together.”

Do not accept the attorney’s allegedly logical inferences and deductions. Whenever a questioning 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 as true and the questioning will go forward without you having a chance to correct the errors.

Wrong Way Right Way
Question:  “Does your spouse work 40 hours per week (i.e., full-time)?”

Answer:  “Yes.”

Question:  “Are you capable of working full-time?”

Answer:  “Yes.”

Question:  “Do you work full-time now?”

Answer:  “No.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Well . . .”

Question:  “You expect your spouse to work full-time, don’t you?”

Answer:  “Yes.”

Question:  “If you can work full-time, but don’t, how is that fair to your children?”

Answer:  “I guess it’s not?”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “But . . .”

Question:  “So you expect your spouse to work full-time, but not you?”

Answer:  “No, no.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Sure.”

Question:  “Does your spouse work full-time?”

Answer:  “Yes.”

Question:  “Are you capable of working full-time?”

Answer:  “Yes.”

Question:  “Do you work full-time now?”

Answer:  “No.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Not in this case, no.”

Question:  “You expect your spouse to work full-time, don’t you?”

Answer:  “Yes.”

Question:  “If you can work full-time, but don’t, how is that fair to your children?”

Answer:  “Because the job I work only allows me to work 25 hours per week as a matter of federal law, but since I am paid $50 per hour, I actually get paid more than many other full-time jobs pay. I cannot earn $50/hour in another field, and so it wouldn’t make sense for me to work 40 hours at a job that pays me less than $50/hour merely so that I can say ‘I work 40 hours per week.’ My job earns me a good living, my job can’t require me to work any more hours than I do, and my schedule allows me to be there to take care of my kids. If you imputed me $50/hour on a 40-hour per week basis, you’d be imputing me an income I’ve never earned and that I cannot earn. That’s why it’s fair to my children that I not be imputed a full-time wage.”

Question:  “So you expect your spouse to work full-time, but not you?”

Answer:  “That’s not what I said at all.”

Question:  “So isn’t it only fair that you be imputed an income of $50/hour on a 40 hour per week basis?”

Answer:  “As I just explained, no.”

You watch enough TV and Internet 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.

You can take a break. 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, the stammering, the twitching, the sweat, the veins popping in your forehead, and the awkward silences will be recorded for all to see. If you find yourself reaching the breaking point, ask for a moment to visit the restroom or take a breather before you crack. You’re entitled to such breaks. Take breaks. You need them.

  1. Mistakes happen; don’t let them send you into a tailspin.

Keep in mind that every witness makes mistakes under questioning. 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 always surely be too late, but even then it is better to ‘fess up and correct the mistake than to allow it to persist.

  1. “I don’t know” and “I do not recall” are acceptable answers—when they are true (meaning that you really don’t know).

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 right answers matters. Knowing the right answers to critical questions in your work life can greatly affect your success. The world rewards knowing the right answers, punishes not knowing the answers.

In a deposition, however, sometimes you simply don’t have all the answers. It’s not your fault, so don’t act like it is.

You do not need to have all the “right” answers in a deposition. You are not expected to have all the answers. You can’t have all the answers. Don’t act like you do—that’s lying.

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,” or “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. If you claim to remember nothing else, if you state that you’ve forgotten or omitted nothing in your testimony in your deposition, but are then confronted with a document or witness that shows otherwise, you may not look forgetful, you’ll likely look like (or be painted by the opposing attorney to look like) a liar.

“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 school principal?”

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 speaking with the principal,” 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.

Don’t Do
Question: “So are these seven accounts all of your financial accounts?”

Answer: “Yes, that’s pretty much it.”

OR

Answer: “Yep.”

Question: “So are these seven accounts all of your financial accounts?”

Answer: “As best I can recall at this time, yes.”

Question (stated in a sarcastic way calculated to make you feel stupid): “You mean you don’t know how many accounts you have?”

Answer: “These seven accounts you asked about are what I can remember at this time, Mr. Smith, but I can’t say with absolute certainty that my accounts are limited to these seven.”

Question: “Well, take a moment and think about it. I don’t want you leaving out key information.”

Answer: “Mr. Smith, these seven are what I can remember now. If I discover anything else, I will notify you through my lawyer.”

If you think that claiming not to know the answer to a question is a good way to avoid having to answer the question truthfully, however, think again. Most people’s B.S. meters are pretty well-calibrated. If you consider yourself to be a skilled liar, you’re likely only fooling yourself, not others.

Don’t Do
Question: “Did you hide your bonus from your spouse?”

Answer: “I don’t recall.”

Question: “You don’t remember whether you hid your bonus from your spouse?”

Answer: “That is correct. I don’t recall.”

Question: “Did you report income of $50,000 on your 2014 taxes?”

Answer: “I don’t recall.”

Question: “But your year to date pay stub statement states your income for 2014 was $76,000?”

Answer: “I don’t recall.”

Question: “Well, take a look, sir. Here is your tax return, here is your end of year pay stub. What do they state?”

Answer: “That I reported $50,000 bonus income on my tax return and that my pay stub shows total annual income of $76,000.”

Question: “Is your tax return accurate?”

Answer: “I don’t recall.”

Question: “Is your pay stub accurate?”

Answer: “I don’t recall.”

Question: “Did you hide your bonus from your spouse?”

Answer: “Yes.”

Question: “Why?”

Answer: “I was so bitter and hurt over her affair that I felt she didn’t deserve to share in it.”

[Now this doesn’t make what the husband did right, but it’s a heck of a lot more understandable and believable (and thus likely forgive-able) than “I don’t recall.”

Husband may take a hit for admitting to concealing the bonus, but his credibility won’t be shredded as it was in the ridiculous “I don’t recall” example.]

  1. Do not guess, speculate, or surmise in responding to a question. You testify as to what you know, not what you don’t know, and guessing is, by definition, not knowing.

The golden rule is: 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 your own knowledge, second-hand info, hearsay, or belief.

Speculating and guessing are not truthful because speculating and guessing is not based on what you personally know or know to be true.

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.

Do Don’t
Question: “Do you know how to apply the ointment?”

Answer: “Yes.”

Question: “How is to be done?”

Answer: “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.”

Question: “Is this consistent with what the doctor directed you to do?”

Answer: “The doctor did not give me directions.”

Question: “So do you know if you apply the ointment correctly?”

Answer: “According to what my wife told me, the doctor instructed it be done this way.”

Question: “Do you know how to apply the ointment?”

Answer: “Yes.”

Question: “How is to be done?”

Answer: “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.”

Question: “Is this consistent with what the doctor directs?”

Answer: “What? You think I don’t do what the doctor directs? You think I’m careless?  Is that what you’re asking?  I know what the doctor wants done.”

Question: “So the doctor told you directly what to do?”

Answer: “Well, actually, no.”

Each of the above answers is accurate and responsive to the attorney’s questions. You did not, however, volunteer any information or guess what was wanted in the left column. The right column shows what happens when you volunteer information, try to guess what is wanted, and pretend you are perfect. Speculating and guessing and puffing are not truthful because speculating and guessing and puffing is not based on what you know or know to be true.

  1. Stick to the facts.

You may have the tendency to characterize your statements and embellish them. When questioned in a court action, such is extremely detrimental. Avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly” or “to tell you the truth.” Some people use these phrases without thinking. Start thinking.

Do not answer questions about things you know with the colloquial “I believe.”  For example, if you are asked whether you gave your son his insulin shot on Friday and you know with absolute certainty that you administered the shot, but you answer with “I believe I did,” you create a needless and confusing impression of doubt.

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

Also, avoid the use of “never” or “always.” Such language can come back to haunt you if you claimed “never” to have visited a certain store only to be presented with a receipt from that very store showing you were there two years ago.

Wrong Way Right Way
Question:  “Have the children been late to school when they’re with you?”

Answer:  “Never!”

Question:  “Do you recognize this document?”

Answer:  “To be honest*, I don’t know what that is.” [it’s a school attendance record]

Question:  “How many tardies does it show for the children this quarter?”

Answer:  “Three.”

Question:  “Which parent were the children with on those days?”

Answer:  “Me.”

Question:  “But you just said the children had never been late to school when they’re with you, correct?”

Answer:  “I believe* they were with their mother on one of those days, and besides, by “late,” I thought you meant* more than an hour late.”

Question:  “Whatever gave you that impression?”

Answer:  “I just think of late as being more than an hour late.”

Question:  “So how tardy were the children on these three days when they were with you?”

Answer:  “About 45 minutes.”

Lawyer:  “I see.”

Question:  “Have the children been late to school when they’re with you?”

Answer: “I don’t remember exactly.”

Question:  “Do you recognize this document?” [school attendance record]

Answer:  “Yes.”

Question:  “How many tardies does it show for the children this quarter?”

Answer: “Three.”

Question:  “Which parent were the children with on those days?”

Answer:  “Me.”

Question: “OK, thank you. Now I’d like to ask you about your retirement accounts . . . ”

*Did you catch that?  Do you see how lame stuff like this needlessly makes you look?

  1. Behave professionally and maturely. Don’t argue with the lawyer.

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 when questioned. Sit up straight, don’t slouch. Speak clearly and audibly into the microphone. You should also refrain from any off-color humor (as tempting as a good attorney joke may be).

While it is hoped that 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.

That stated, being courteous, professional, and mature is not synonymous with being a doormat. If the attorney deposing you behaves like a real jackass, ask your attorney to note it for the record.

  1. You are never off the record

If you are tired or not feeling well, you may, at any time, request a recess (a break). 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 or chit chat with you off the record. Do not be tempted to engage in such behavior.

Don’t use obscenities or make slurs while testifying. This can be extremely embarrassing and damaging to you.

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

  1. Know your role in the process.

Testimony taken in a deposition or in court can be an intimidating process and should never be taken lightly. Following the foregoing guidelines will help ensure that you have testified truthfully and with confidence.

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 (or at least should not try to) tell what to say. It is unethical, as well as 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 it, and what questions may likely be asked of you. If your attorney identifies the key themes that support your case then you can weave those themes into your explanation of the case. Ask your attorney to do that. Now.

Opinions

If you are not represented by counsel, and are not being paid as an expert, be wary of giving any opinion testimony. 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 prevent Jimmy from running away?” Each of these questions calls for your opinion. Responding to such questions can be damaging to you. At the very least, never offer any unsolicited opinions.

Don’t Do
Question: “How do you think your smoking may affect your children’s health?”

Answer:  It won’t affect them at all. I don’t smoke around the children. I never have. [Truth be told, this isn’t a terrible sample answer, but see the “Do” column for how to make such an answer even better, meaning more accurate and better for your case.]

Question: “How do you think your smoking may affect your children’s health?”

Answer:  “You’re asking me to speculate. I don’t know. Besides, I don’t smoke around the children. I never have.*

 

Don’t Do
Question: “Why do you think Jimmy ran away?”

Answer:  Gee, I don’t know.  Maybe a lack of love?  A lack of attention?  Maybe he should have been in counseling?

Question: “Why do you think Jimmy ran away?”

Answer:  “Are you asking for my opinion?  Are you asking me to speculate?”

OR simply:

Answer:  “I don’t know. You’d need to ask Jimmy.”

*Notice these witnesses broke the “never say never rule,” and the “just say yes or no” rules, but there are rare exceptions, and these are a couple of good examples.

Being questioned about documents and pictures

You will likely be shown and asked to identify and/or comment on letters, financial statements, 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 necessarily speak for themselves. If they did, there would be little to no need to question you in a deposition about them.

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. Because the attorney will be questioning you about your documents, failing to review them in advance will only lengthen and/or weaken your deposition.

You may be shown several documents when you are being questioned. The attorney has certain objectives when showing you these documents:

  • To authenticate the document, i.e., to establish that 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 of the document, where it came from, where it has been, who sent it, and who received it; and
  • To learn what 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:

  • Review 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 the table of contents and headings in the document to assist you in determining whether have ever seen the document before.
  • Finally, determine whether you have, in fact, ever seen the document before.

If you are unsure whether you have never seen the document before or know that you have never seen the document, then say so when asked.

Only read the document in detail if the attorney then asks you to read it, and if you are asked to read it, do not be rushed to finish reading the document. You can’t tell the truth about what you read by only taking a passing glance through it.

Do Don’t
Question:  “I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?”

Answer:  [after looking over the pages carefully] “Yes.”

Question: “Would you please describe for me what it is?”

Answer: “Some of these pages appear to be a copy of some notes I made during the meeting with Mr. Hansen.”

Question: “Did you prepare this document?”

Answer: “I prepared pages 1 through 6, and page 8, but not pages 7, 10 or 11. And it appears that one of the pages I prepared has been removed from this copy.

Question:  I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?

Answer:  [immediately, after seeing the top page and without reviewing them first] Yes.

Question: Would you please describe for me what it is?

Answer: They’re notes I made.

Additionally, if your subpoena or request for production of documents does not request you to bring any documents to your deposition, it’s generally wise that you not bring any with you to the deposition. 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 or requested, ask him or her to send you a subpoena or request for production of documents for them. This will give you and your attorney an opportunity to review the request and make an appropriate response.

Reviewing your deposition transcript for errors (either that the transcriptionist made, or that you made).

After the attorney questioning you has stated he or she has no further questions for you, the attorney will indicate that the deposition is completed. Your deposition experience does not end there, however.

You have the right to review the transcript of your deposition 1) to ensure that it accurately reflects what you said; and 2) to correct any errors you made. Correct such errors immediately.

A transcriptionist can make all kinds of errors in your transcript that are simply honest mistakes due to misunderstanding your accent and speech patterns. Frankly, only you may be able to know what the errors were because you know what you said and what you meant, even if the transcriptionist did not.

It’s also not unusual to discover, after your deposition, to realize after the fact that you spoke in error here or there.

You have the right to review the transcript and to correct any errors in it. Use it.

Utah’s rules of civil procedure, rule 30(e) provides:

Within 28 days after being notified by the officer that the transcript or recording is available, a witness may sign a statement of changes to the form or substance of the transcript or recording and the reasons for the changes. The officer shall append any changes timely made by the witness.

Notice that the language of rule 30(e) is “may sign,” not must. This means that you have to invoke your right to review the transcript and note any errors, and within 28 days after being notified the transcript is ready for review.

The attorney taking your deposition may not inform you of this right. The court reporter may not inform you of this right. Your own attorney may forget to inform you of this right. So tell everyone, in writing before your deposition and on the record in your deposition that you request notification when the transcript is completed, so that you may review the transcript and note any errors or changes to your transcribed testimony, so that your rights are secured.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] This phrase (c. 1732) derives from ancient folk knowledge confirmed by science: the interior temperature of a field cucumber on a warm day is 20 degrees cooler than the air temperature.

[2] He or she who believes that he/she is a natural at testifying is either an extraordinarily rare specimen or a fool. ‘Don’t know which kind you are?  Why leave it to chance?  You can’t afford to. You only get one opportunity in your deposition to get it right, so learn how to do it right.

[3] Impeach: 1) to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another.

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Cool as a Cucumber: How to Testify Successfully at Your Deposition or in Court in a Domestic Relations Case

Cool as a Cucumber[1]: HOW TO TESTIFY SUCCESSFULLY AT YOUR DEPOSITION OR IN COURT IN A DOMESTIC RELATIONS CASE

[1] This phrase (c. 1732) derives from ancient folk knowledge confirmed by science in 1970: the interior temperature of a field cucumber on a warm day is 20 degrees cooler than the air temperature.

HOW TO TESTIFY SUCCESSFULLY AT YOUR DEPOSITION OR IN COURT IN A DOMESTIC RELATIONS CASE

When it comes to testifying, follow the Golden Rules:

  1. Always tell the truth.
  2. Simply telling the truth is not enough sometimes. You must understand the purpose of testimony, and the relevance to the litigation of your responses you give when testifying.
  3. Your deposition/testimony can rarely, if ever, do anything but hurt you.  
  4. Be prepared.
  5. Before you answer, hear the question, understand the question.
  6. Think about the—truthful—response to the question before you answer or speak.
  7. Do not volunteer information; answer only the question asked.
  8. 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—when they are true.
  11. Do not guess, speculate, or surmise in responding to a question.  You testify as to what you know, not what you don’t know, and guessing is, by definition, not knowing.
  12. Stick to the facts (See Rule 11 above).
  13. Behave professionally and maturely.
  14. You are never “off the record”.
  15. Know your role in the process (See Rules 2 and 3 above).

I have observed testimony that made the difference between winning and losing the case. This means I’ve experienced testimony that snatched victory from the jaws of defeat in a weak case, and I’ve also experienced testimony that resulted in losing a case my clients could have or should have won.

The following principle applies to you, whether you like it or not: the overwhelming majority of people are not inherently talented testifiers. Testifying successfully under oath is somewhat counterintuitive. Learn how it works before you do it for real, for all the marbles.

He or she who believes that he/she is a natural at testifying is either an extraordinarily rare specimen or a fool. ‘Don’t know which kind do you think you are?  Why leave it to chance?  You can’t afford to. You only get one opportunity to testify.

There is very good news, however; learning how to testify properly and effectively is not hard to understand and not hard to do. I am literally begging you to read all of this booklet carefully (make notes in the margins, highlight key parts, know this stuff cold), so that you know what proper and effective testify is AND how to testify properly and effectively yourself.  Ignore this advice at your and your case’s peril. Follow this advice to your case’s guaranteed benefit.

FOLLOW THE GOLDEN RULES

  1. Always tell the truth.

While telling the truth may not necessarily limit your exposure or benefit every aspect of your case, lying or playing fast and loose with the truth will undoubtedly increase your potential exposure and almost certainly damage your credibility and by extension, your case.

Examples:

Suppose you are seeking a divorce on the basis of, among other things, your wife committing serial adultery. Suppose also that during a heated argument you did in fact call your wife a slut. Now imagine that you are being questioned on the witness stand:

Right Way:

Question:  “Did you call your wife a slut?”

Answer: “Yes.”

Wrong Way:

Question:  “Did you call your wife a slut?”

Answer:  “No.”

By the way, calling your adulterous spouse a philanderer or a slut really has very little bearing on a divorce case. Even if you feel embarrassed by having to answer yes to the question above, it’s better to be honest than to lie. It’s necessary to be honest. Lying is not an option.

But you might think, “Aha, I’ve nothing to lose. It’s his/her word against mine!”  But then this happens:

Right Way:

Question:  “Did you call your wife a slut?”

Answer: “Yes.”

Wrong Way:

Question:  “Did you call your wife a slut?”

Answer:  “No.”

Question:  “Were you aware your wife was recording the argument on her smartphone in your front yard. . . and were you aware of the busload of nuns with camcorders whose ride broke down just outside your house at that moment could overhear the whole argument too?”

Honesty is the best policy. It’s the only policy. Truth may hurt, but lies hurt you even more.

  1. Simply telling the truth is not enough sometimes.

You must understand the purpose of testimony, and the relevance to the litigation of your responses you give when testifying. The reasons for taking your deposition or being questioned on the witness stand may be numerous. Understanding the reason for you being questioned, as well as deeper understanding of the process, will enable you to testify both truthfully and intelligently. Read on to understand the purposes of testimony in a court case. They are not what you think.

  1. Your Deposition/Testimony Can Rarely, If Ever, Do Anything But Hurt You

Consider what that heading you just read means:  your deposition can only hurt you. A deposition is taken for several reasons; it is important to realize what a deposition is and is not.

A deposition/testimony is not taken to exonerate the person being deposed/questioned.

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 testimony can only hurt you. So do your best to (honestly) minimize the damage.

Repeat:  your deposition/testimony can rarely, if ever, do anything but hurt you. This means you don’t try to make your deposition your personal soapbox. Don’t even think about it. Don’t. I really mean it.

Why You Are Deposed

  1. One reason you are deposed/questioned 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 better prepare his or her case for trial.
  2. Another reason is to develop impeachment[1] evidence and admissions against your interest. The attorney deposing (that’s the term for questioning you in your deposition) you 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 from those questions when asked at the trial, the attorney will read back portions of your deposition testimony taken previously and try to impeach you (that is to say, make you out to be a liar).
  3. Most important, a deposition and/or being questioned at trial 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 or lawyer that his/her case has no merit. You may be eager to explain your actions or explain why the opposing party is in the wrong.

!!Stop!!

Slap your own face for me here and say to yourself, “Snap out of it!”

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. People who disregard this sage advice are too clever by half, and they get burned. Ignore this advice at your peril. You have been more than fairly warned.

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” at the deposition stage of litigation, it is essential for a successful deposition and favorable resolution of your involvement in the lawsuit.

Think of it this way too: the deposition is for the judge, not for you. Give the judge what the judges needs to know, not what you want to yammer about it.

The Deposition Process

A deposition is taken in an informal setting.

It is usually in an attorney’s conference room.

There is no judge present.

Your attorney will be with you while you are deposed to make objections to any improperly posed questions.

There is plenty of water to drink. If you need to get up to use the restroom, you may, without having to ask permission. You simply say to the attorney questioning you, “I need to be excused to use the restroom.”

The attorney (or attorneys) questioning you may appear to 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/questioning, 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. Do not be fooled. Remember, this is an adversarial system. The opposing attorney is never your friend. Never.

Another way the attorney questioning you may attempt to establish control is through intimidation. If you are prepared for your deposition/questioning and are familiar with the ins and outs of the process, you will not be intimidated. If you are unsure about any aspect of your deposition/testimony, then please, for your own sake, talk to your attorney in advance!  Once you’re in the deposition hot seat, the time for preparation has passed, for good.

Don’t worry about looking foolish or unsophisticated with your attorney—your attorney’s purpose is to educate you and polish you up. Use the help. Now! No question is too silly to ask your attorney, and no silly question is more damaging than the one unasked, when it could have done you some good before you’re in the hot seat and have nowhere to turn. 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, or worse. 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 often 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 opposing attorney. Be confident, however, that because you read this document in your hands before your deposition (and well before your deposition, not in the car on the drive over), you already have an understanding of the deposition process and are ready for the challenges that lie ahead.

  1. Be prepared.

Being deposed or being questioned in court will often be about an incident or incidents that happened a long time ago. It is critical that you review all relevant records beforehand.

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, i.e., what are you fighting over?

Right Way:

You review your expenses and the documentation you have in support of these expenses weeks before your deposition or court date, so you know—and can show from the documents—that you need $1,300 in alimony.

Question:  “So how much do you need to meet your monthly needs?”

Answer:  “$1,300.”

Question: “Oh, really?”

Answer: “Yes.”

Question: “And how do you know that?”

Answer: “You have my receipts, credit card, and bank statements in my Financial Declaration which show my personal monthly expenses are $2,560 per month, and I net $1,260 per month from my job, so the difference is $1,300.”

Wrong Way:

‘Turns out you need $1,300 in alimony, but you don’t review your expenses or their supporting documentation, so you have no idea it’s that much. And then you are asked, under oath:

Attorney:  “So how much do you need to meet your monthly needs?”

You answer:  “Oh, I’d say around $800 or $900.”

Attorney: “OK, thank you.”

Video recorded depositions (also known as “sound-and-visual” recordings)

The guidelines in this booklet are even more critical in a video recorded 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, don’t 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, twisting in your chair, shuffling papers or fussing with your coffee cup. Whether you feel happy and relaxed or not, look that way on camera. No one likes a tense grump or a creepy witness. So sit up straight. Dress Sharp. Get a shave and a haircut. Look alive. Look appealing. The deposition is being audio taped as well. Unlike a written transcript, a jury will be able to see and hear the tone of your responses in a video recorded deposition.

  1. Before you answer, hear the question, understand the question.

It is the questioning attorney’s responsibility to articulate intelligible questions. If you do not understand the question, say so. DO NOT allow your pride to stand in the way of understanding a question. Don’t let your fear of looking foolish cause you to answer a question you don’t understand—that will guarantee you look foolish.

It is not your responsibility, however, to help the attorney formulate an understandable question.  Do not answer a question that isn’t asked. Do not ask the attorney, “Did you mean to ask ________?”—that’s suicide.

Right Way:

Question:  “Do you have any children?”

Answer:  “Yes.”

Question:  “How many?”

Answer:  “Two.”

Question:  “Boys, girls?”

Answer:  “Two boys.”

Question:  “Are they minors?”

Answer:  “One of them is.”

[You hear the next question as possibly meaning] “Do you know who your sons’ teachers are?”; [but it was meant as] “Do you know who your youngest son’s teachers are?”  You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.

Question: “Do you know who your sons’ teachers are?”

Answer:  “Whose teachers?”

Question:  “Your youngest son’s, Jimmy’s teachers.”

Answer:  “Yes.”

Question:  “What are their names?”

Answer:  “Mrs. Brown, Ms. Tuttle, Mr. Cheever, and Mrs. Watson.”

Wrong Way:

Question:  “Do you have any children?”

Answer:  “Yes.”

Question:  “How many?”

Answer:  “Two.”

Question:  “Boys, girls?”

Answer:  “Two boys.”

Question:  “Are they minors?”

Answer:  “One of them is.”

Question:  [you hear it as] “Do you know who your sons’ teachers are?,” but it was meant as “Do you know who your youngest son’s teachers are?”  You know the names of your youngest son’s elementary school teachers, but you have no idea who your adult son’s college professors are.

Question: “Do you know who your sons’ teachers are?”

Answer:  “No.”

It is the questioning attorney’s responsibility to learn the facts. You are not required to volunteer this information without first being asked specifically, by him, to educate him in this endeavor. Even if the attorney acts (and it is acting) frustrated that you “aren’t being cooperative,” do not volunteer information that is not sought by a specific question. If you are one of those who squirms during awkward silences in a conversation, DON’T speak up just to fill the silence. Attorneys often try to get you to speak that way. Keep your mouth shut until an actual question is posed.

Watch out for compound questions. Compound questions are two questions asked in the same sentence.

EXAMPLES:

“Did you or your partner steal the money?”

“Tell me, Mr. Smith, how your wife managed to place the house up for sale without your knowledge and how she closed on the sale without you allegedly being present.”

Compound questions are scary because you may want to answer one part of the question with a “Yes” and the other part with a “No,” but if all you do is answer with a single “No” or with a single “Yes,” the court might think you were answering “No” or “Yes” to both parts of the question. Point out when you are asked a compound question by saying, then ask the attorney to break the question into two separate questions that you answer separately. It’s your right.

Right Way:

Question:  “Did you withdraw all of the money from the joint account without your wife’s consent.”

Answer:  “That’s multiple questions in one.  Please break them up.”

Question:  “If you insist. First, how did you manage to withdraw all of the money from the joint account?”

Answer:  “That’s still two questions.”

Question:  “Fine.  Did you withdraw all of the money?”

Answer: “Yes.”

Question:  “Was it a joint account?”

Answer:  “No.”

Question: “Whose account is it?”

Answer: “Mine. It’s an account I opened prior to our marriage.”

Wrong Way:

Question:  “Did you withdraw all of the money from the joint account without your wife’s consent.”

If you answer with “Yes,” the judge might think you withdrew all the money from a joint account, which is not true.  You look like a liar.

If you answer with “No,” the judge might think you’re claiming that you did not withdraw all the money, when in fact you did.  You look like a liar.

If a question is too complex or ambiguous for you to easily understand, it is too complex or 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. If the question uses words you don’t understand, say so.

If you’re self-conscious about looking stupid, get over yourself fast. One of a lawyer’s most powerful weapons is the witness’s own pride and/or insecurity.

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 evasive or obstructive when the testimony is read by the judge. Asking the attorney to repeat a question as a ruse for stalling is pretty obvious too, so don’t do that either. If you need time to answer a question, take a brief, reasonable pause and then answer.

Do not overanalyze every question.

Right Way (What President Clinton should have done):

Question:  “The statement that there was no sex of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”

Answer: “Yes.”

Wrong Way:

(from the actual deposition of President Bill Clinton)

Question:  “The statement that there was no sex of any kind in any manner shape or form with President Clinton was an utterly false statement, is that correct?”

Answer: “It depends upon what the meaning of the word ‘is’ is. If ‘is’ means ‘is and never has been,’ that’s one thing, if it means ‘there is none,’ that’s a completely true statement.”*

*You’ll find this exchange from the deposition of President Clinton under the dictionary definition of “too clever by half.” My friend, regardless of your political affiliations, if you believe that the President’s answer did his case any favors, then you are likely in trouble when it comes time for your testimony.

Don’t be too eager to anticipate questions from the attorney deposing you. Anticipating questions you think may be asked could result in you divulging information you would never have otherwise been asked to divulge.

Do:

Question: “Did you spank your son?”

Answer:  “Yes.”

Question: “OK, I’d like to move on why you want the family dog awarded to you . . .”

Do:

Question: “Did you spank your son?”

Answer:  “Yes.”

Question: “OK, I’d like to move on why you want the family dog awarded to you . . .”

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

  1. Think about the—truthful—response to the question before you answer or speak.

What’s that again?  Pause and think before you speak.

Take your time when responding to questions.

Pause for about one, maybe two, full seconds (i.e., “one thousand one, one thousand two”) after each question. Seriously. This has many benefits:

1) It allows your attorney to formulate objections to any improper question.

2) It provides you with an opportunity to decide whether you know the answer and to determine how you will respond.

Don’t:

Question:  “Do you consider lying bad behavior in a child?”

Answer:  “Yes.”

Question: “And do you think it appropriate to punish a child for lying–

Answer: [piping up while the lawyer is in mid-sentence] “Absolutely!”

Question: –by whipping him with an electrical cord?

Do:

Question:  “Do you consider lying bad behavior in a child?”

Answer:  “Yes.”

Question: “And do you think it appropriate to punish a child for lying by whipping him with an electrical cord?

Answer: “No.”

Do not try to talk over the attorney questioning you. It makes you look extraordinarily argumentative and rude, and it can create confusion (see above).

Remember: while you are not in control of the questions asked of you, you are in control of answering those questions. Don’t let the opposing attorney bully you into making snap responses (and he or she will try, oh how they’ll try).

Do not allow the attorney to interrupt you as you speak. If you are not finished answering a question, immediately (and kindly, calmly) advise the attorney that you have not finished (still, try to be brief in your answers—most questions you are asked should be answerable with yes, no, I don’t know, or “I don’t understand, please rephrase”). Likewise, pacing yourself will ensure that you do not interrupt the opposing attorney’s questions.

Do not antagonize or insult the attorney questioning you.  It usually backfires.  Do not argue with the attorney questioning you.  It makes you look defensive, foolish, and dishonest.

Don’t:

Question: “Didn’t you think you were overreacting by talking to your son in that way?”

Answer: “I don’t know, I didn’t study psychology, did you, Mr. Know-It-All?”

Response from lawyer:  “Actually, yes, I did, when obtaining my master’s degree from Harvard.”

Do:

Question: “Didn’t you think you were overreacting by talking to your son in that way?”

Answer: “I don’t know.”

or: “No.”

or: “Yes.”

And do not look to be insulted by every word that issues from the mouth of the attorney questioning you. The purpose of many, even most, questions, is to expose weaknesses in you and in your case. I know the pressure is on you, but losing your cool only makes you look bad and does not make you look 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 questioning. There is no time clock or deadline for your answers. Pace yourself and remain in control of yourself.

  1. Do Not Volunteer Information; answer only the question you are asked.

If you are asked whether you spanked your son, answer “yes” if you did, “no” if you didn’t. If you can’t remember whether you spanked him, say so. That’s it. Do not explain when you spank children, why you spank, or what behavior is deserving of a spanking. None of those things were asked, and so if you speak to these subjects you end up divulging unsolicited information the attorney questioning you would never otherwise have thought to ask you.

Do:

Question: “Did you spank your son?”

Answer: “Yes.”

Don’t:

Question: “Did you spank your son?”

Answer: “Of course I did!  But only four times, not the five my spouse claims. And I wasn’t drunk when I spanked him, I’d only had two beers. That boy’s lucky I didn’t beat him senseless after what he did. And if he says I whipped him with a belt, he’s lying!”

If the attorney wants more information, he or she will ask a follow-up question. You don’t need to volunteer more information. It does you no good.

Remember, this is not your opportunity to defend yourself or explain your side of the story. Volunteering information 1) risks divulging information that might never have been obtained; 2) risks having additional questions posed that might otherwise never have been asked, 3) can damage your case, and 4) prolongs your deposition.

  1. Do not let opposing counsel put words in your mouth.

Pay attention and be careful not to adopt “facts” just because the attorney questioning you mentions them. Don’t allow the attorney to put words in your mouth. Don’t accept his characterizations of people, events, data, and other facts.

Don’t:

Question: “So you object to your ex-husband’s handling of the situation, correct?”

Answer: “Yes.”

Question: “Why?”

Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”

Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”

Answer: “Correct, that’s what I just said.”

Question: “But isn’t it true that after you discovered that your ex-husband checked your son out of school and enrolled him in a different school, you checked him out and enrolled him back into the old school?”

Answer: “Well, yes.”

Question: “But didn’t you just concede that it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent?”

Answer: “Wait, you’re twisting my words . . .”

Do:

Question: “So you object to your ex-husband’s handling of the situation, correct?”

Answer: “Yes.”

Question: “Why?”

Answer: “He checked our son out of school and enrolled him in a new school without my knowledge or consent.”

Question: “So it’s wrong for a parent to check a child out of school and enroll him in a new school without the other parent’s knowledge and consent, correct?”

Answer: “No, that is not what I said.”

Question: “Really?”

Answer: “Really.”

Question: “What did you mean to say, then?”

Answer: “What my ex did was wrong because he checked our son out of school and enrolled him in a new school without my consent, and our Decree says we make school choice decisions together.”

Do not accept the attorney’s allegedly logical inferences and deductions. Whenever a questioning 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 as true and the questioning will go forward without you having a chance to correct the errors.

Wrong Way:

Question:  “Does your spouse work full-time?”

Answer:  “Yes.”

Question:  “Are you capable of working full-time?”

Answer:  “Yes.”

Question:  “Do you work full-time now?”

Answer:  “No.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Well . . .”

Question:  “You expect your spouse to work full-time, don’t you?”

Answer:  “Yes.”

Question:  “If you can work full-time, but don’t, how is that fair to your children?”

Answer:  “I guess it’s not.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “But . . .”

Question:  “So you expect your spouse to work full-time, but not you?”

Answer:  “No, no.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Sure.”

Right Way:

Question:  “Does your spouse work full-time?”

Answer:  “Yes.”

Question:  “Are you capable of working full-time?”

Answer:  “Yes.”

Question:  “Do you work full-time now?”

Answer:  “No.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “Not in this case, no.”

Question:  “You expect your spouse to work full-time, don’t you?”

Answer:  “Yes.”

Question:  “If you can work full-time, but don’t, how is that fair to your children?”

Answer:  “Because I am attending school full-time to increase my earning capacity. I’ve been a stay at home mother for the past 11 years while our children were young, and I have no job skills.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “No, not while I’m a full-time student.”

Question:  “So you expect your spouse to work full-time, but not you?”

Answer:  “That’s not what I said.”

Question:  “So isn’t it only fair that you be imputed a full-time wage?”

Answer:  “No, not while I’m getting job training as a full-time student.

[if the attorney then asks why, answer, but don’t anticipate the question]

Question:  “Why?”

Answer: “I can’t take a full-time course load and work full-time and take care of the kids at the same time.”

You watch enough TV and Internet 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, the stammering, the twitching, the sweat, the veins popping in your forehead, and the awkward silences will be recorded for all to see. If you find yourself reaching the breaking point, ask for a moment to visit the restroom or take a breather before you crack. You’re entitled to such breaks.

  1. Mistakes happen; don’t let them send you into a tailspin.

Keep in mind that every witness makes mistakes under questioning. 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 always surely be too late, but even then it is better to ‘fess up and correct the mistake than to allow it to persist.

  1. “I don’t know” and “I do not recall” are acceptable answers—when they are true (meaning that you really don’t know).

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 right answers matters. Knowing the right answers to critical questions in your work life can greatly affect your success. The world rewards knowing the right answers, punishes not knowing the answers.

In a deposition, however, sometimes you simply don’t have all the answers. It’s not your fault, so don’t act like it is.

You do not need to have all the “right” answers in a deposition. You are not expected to have all the answers. You can’t have all the answers. Don’t act like you do—that’s lying.

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,” or “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. If you claim to remember nothing else, if you state that you’ve forgotten or omitted nothing in your testimony in your deposition, but are then confronted with a document or witness that shows otherwise, you may not look forgetful, you’ll likely look like (or be painted by the opposing attorney to look like) a liar.

“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 school principal?”

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 principal,” or “I do not recall meeting the principal recently,” 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.

Don’t:

Question: “So are these seven accounts all of your financial accounts?”

Answer: “Yes, that’s it.”

OR

Answer: “Yep.”

Do:

Question: “So are these seven accounts all of your financial accounts?”

Answer: “As best I can recall at this time, yes.”

Question (stated in a sarcastic way calculated to make you feel stupid): “You mean you don’t know how many accounts you have?”

Answer: “These seven accounts you asked about are what I can remember at this time, Mr. Smith, but I can’t say with absolute certainty that my accounts are limited to these seven.”

Question: “Well, take a moment and think about it. I don’t want you leaving out key information.”

Answer: “Mr. Smith, these seven are what I can remember now. If I discover anything else, I will notify you through my lawyer.”

If you think that claiming not to know the answer to a question is a good way to avoid having to answer the question truthfully, however, think again. Most people’s B.S. meters are pretty well-calibrated. If you consider yourself to be a skilled liar, you’re likely only fooling yourself, not others.

Don’t:

Question: “Did you and your boss hide your bonus from your spouse?”

Answer: “I don’t recall.”

Question: “You don’t remember whether you hid your bonus from your spouse?”

Answer: “That is correct. I don’t recall.”

Question: “Did you report income of $50,000 on your income tax return?”

Answer: “I don’t recall.”

Question: “But your bank statement shows $26,000 deposited by your employer into that account at the end of the fourth quarter of 2014, correct?”

Answer: “I don’t recall.”

Question: “Well, take a look, sir. Here is your tax return, here is your bank statement I subpoenaed. What do they state?”

Answer: “That I reported $50,000 bonus income on my tax return and that my total deposits into my account from my employer total $76,000.”

Question: “Is your tax return accurate?”

Answer: “I don’t recall.”

Question: “Is your bank statement accurate?”

Answer: “I don’t recall.”

Do:

Question: “Did you hide your bonus from your spouse?”

Answer: “Yes.”

Question: “Why?”

Answer: “I was so bitter and hurt over her affair that I felt she didn’t deserve to share in it.”

[Now this doesn’t make what the husband did right, but it’s a heck of a lot more understandable and believable than “I don’t recall.” Husband may take a hit for admitting to concealing the bonus, but his credibility won’t be shredded as it was in the ridiculous “I don’t recall” example.]

  1. Do not guess, speculate, or surmise in responding to a question. You testify as to what you know, not what you don’t know, and guessing is, by definition, not knowing.

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 your own knowledge, second-hand info, hearsay, or belief.

Speculating and guessing are not truthful because speculating and guessing is not based on what you personally know or know to be true.

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.

Do:

Question: “Do you know how to apply the ointment?”

Answer: “Yes.”

Question: “How is to be done?”

Answer: “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.”

Question: “Is this consistent with what the doctor directs?”

Answer: “I have no personal knowledge of what the doctor directs; this is how my wife told me the doctor instructed it be done.”

Don’t:

Question: “Do you know how to apply the ointment?”

Answer: “Yes.”

Question: “How is to be done?”

Answer: “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.”

Question: “Is this consistent with what the doctor directs?”

Answer: “What? You think I don’t do what the doctor directs? You think I’m careless?  Is that what you’re asking?  I know what the doctor wants done.”

Question: “So the doctor told you directly what to do?”

Answer: “Well, actually, no.”

Each of the above answers is accurate and responsive to the attorney’s questions. You did not, however, volunteer any information or guess what was wanted in the left column. The right column shows what happens when you volunteer information and try to guess what is wanted. Speculating and guessing are not truthful because speculating and guessing is not based on what you know or know to be true.

  1. Stick to the facts (and re-read Rule 11 above).

You may have the tendency to characterize your statements and embellish them. When questioned in a court action, such is extremely detrimental. Avoid characterizing your testimony with lead-ins such as “in all candor,” “honestly” or “to tell you the truth.” Some people use this phrases without thinking. Start thinking.

Do not answer questions about things you know with the colloquial “I believe.”  For example, if you are asked whether you gave your son his insulin shot on Friday and you know with absolute certainty that you administered the shot, but you answer with “I believe I did,” you create a needless and confusing impression of doubt.

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

Also, avoid the use of “never” or “always.” Such language can come back to haunt you if you claimed “never” to have visited a certain store only to be presented with a receipt from that very store showing you were there two years ago.

Wrong Way:

Question:  “Have the children been late to school when they’re with you?”

Answer:  “Never!”

Question:  “Do you recognize this document?”

Answer:  “To be honest*, I don’t know what that is.” [it’s a school attendance record]

Question:  “How many tardies does it show for the children this quarter?”

Answer:  “Three.”

Question:  “Which parent were the children with on those days?”

Answer:  “Me.”

Question:  “But you just said the children had never been late to school when they’re with you, correct?”

Answer:  “I believe* they were with their mother on one of those days, and besides, by “late,” I thought you meant* more than an hour late.”

Question:  “Whatever gave you that impression?”

Answer:  “I just think of late as being more than an hour late.”

Question:  “So how tardy were the children on these three days when they were with you?”

Answer:  “About 45 minutes.”

Lawyer:  “I see.”

Right Way:

Question:  “Have the children been late to school when they’re with you?”

Answer: “I don’t remember exactly.”

Question:  “Do you recognize this document?” [school attendance record]

Answer:  “Yes.”

Question:  “How many tardies does it show for the children this quarter?”

Answer: “Three.”

*Did you catch that?  Do you see how lame stuff like this needlessly makes you look?

  1. Behave 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 when questioned. Sit up straight, don’t slouch. Speak clearly and audibly into the microphone. You should also refrain from any off-color humor (as tempting as a good attorney joke may be).

While it is hoped that 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.

That stated, being courteous, professional, and mature is not synonymous with being a doormat. If the attorney deposing you behaves like a real jackass, ask your attorney to note it for the record.

  1. You Are Never Off the Record

If you are tired or not feeling well, you may, at any time, request a recess (a break). 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 to you.

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

  1. Know your role in the process.

Testimony taken in a deposition or in court can be an intimidating process and should never be taken lightly. Following the foregoing guidelines will help ensure that you have testified truthfully and with confidence.

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, as well as 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 it, and what your testimony will likely cover. If your attorney identifies the key themes that support your case then you can weave those themes into your explanation of the case. Ask your attorney to do that. Now.

Opinions

If you are not represented by counsel, and are not being paid as an expert, be wary of giving any opinion testimony. 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 prevent Jimmy from running away?” Each of these questions calls for your opinion. Responding to such questions can be damaging to you. At the very least, never offer any unsolicited opinions.

Example 1

Don’t:         

Question: “How do you think your smoking may affect your children’s health?”

Answer:  It won’t affect them at all. I don’t smoke around the children. I never have. [Truth be told, this isn’t a terrible sample answer, but see the “Do” column for how to make such an answer even better, meaning more accurate and better for your case.]

Do:

Question: “How do you think your smoking may affect your children’s health?”

Answer:  You’re asking me to speculate. I don’t know. Besides, I don’t smoke around the children. I never have.*

Example 2

Don’t:

Question: “In your opinion, what could have been done to prevent Jimmy from running away?”

Answer:  Gee, I don’t know.  Maybe love him more? Be less critical of his ballet dancing? Pay closer attention to the warning signs?  Perhaps take him to counseling?

Do:

Question: “In your opinion, what could have been done to prevent Jimmy from running away?”

Answer:  Are you asking for my opinion?  Are you asking me to speculate?  You’d have to ask Jimmy why he ran.

OR simply:

Answer:  You’d need to ask Jimmy why he ran.

*Notice this witness broke the “never say never rule,” but there are exceptions, and this is a good example.

Being questioned about documents and pictures

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 necessarily speak for themselves. If they did, there would be little to no need to take your deposition about them.

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. Because the attorney will be questioning you about your documents, failing to review them in advance will only lengthen and/or weaken your deposition.

You may be shown several documents when you are being questioned. The attorney has certain objectives when showing you these documents:

  • To authenticate the document, i.e., to establish that 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 of the document, where it came from, where it has been, who sent it, and who received it.
  • To learn what 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.
  • Finally, determine whether you have, in fact, ever seen the document before.

If you think or know that you have never seen the document, then 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 taking a passing glance through it.

Additionally, if your subpoena or request for production of documents does not request you to bring any documents to your deposition, 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 or requested, ask him or her to send you a subpoena or request for production of documents for them. This will give you and your attorney an opportunity to review the request and make an appropriate response.

Do

Question:  I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?

Answer:  [immediately, after seeing the top page and without reviewing them first] Yes.

Question: Would you please describe for me what it is?

Answer: They’re notes I made.

Don’t:

Question:  I am handing you what is marked Petitioner’s Exhibit “A” [attorney hands you a document]. Do you recognize this document?

Answer:  [after looking over the pages carefully] Parts of it, yes.

Question: Would you please describe for me what it is?

Answer: These appear to be a copy of some of the notes I made during the meeting with Mr. Hansen.

Question: Did you prepare this document?

Answer: I prepared these pages [indicates the pages the deponent prepared], pages 1 through 6, and page 8, but not pages 7 and 10 through 11 [indicates the pages the deponent prepared]. And it appears that one of the pages I prepare has been removed from this copy.

[1] Impeach: 1) to discredit the testimony of a witness by proving that he/she has not told the truth or has been inconsistent, by introducing contrary evidence, including statements made outside of the courtroom in depositions or in statements of the witness heard by another.

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