Discovery & Depositions (Part 5)

Pay particular attention to the following, they are often key topics:

• Know by heart the names of all daycare providers and/or teachers past and present.
   
• Know your children's grades class by class.
   
• Know from memory all health care providers your children have seen, the reasons for such visits and any treatment that followed. Know any medication your children take.
   
• If you and your wife are proposing different school systems, know comparative data: class sizes, SAT & PSAT scores, awards, rankings, etc. Be sure you have visited both schools.
   
• Expect the question: Why do you believe you should have primary physical custody?
   
• Do not unduly demonize mom — give her credit where credit is due. It harms your case to swing wildly, to make claims you cannot back up, and, more importantly, to do so in a tone betraying bitterness or anger. You don't want to distract the court from what you say to why you say it. For example, you usually only build your credibility by saying: "of course she loves the kids," or "of course the kids love her," and "she is always a good mom."
   
• Go into the deposition with a plan for the future. Be prepared to discuss the logistics if you are awarded primary custody: your work schedule, the time you leave in the morning, breakfast, know your day care provider, time of pickup each day, bus stop, etc. If you do not have a plan by the time you are in depositions, you may need to reconsider the seriousness of your intent.
   
• If you are alleging misconduct relating to your child, expect to be asked for specifics. While you should not volunteer them, if pressed you should be prepared to identify specific instances.

Also, remember the following ground rules regarding all your answers:

Just answer the question: Provide only enough information to answer the question. Don't volunteer anything. Be succinct. Make the other lawyer work for the information he gets. Once you feel you have answered a question, stop. Silence in the room is okay. It is even good — it means you are not handing over information.

Do not "make arguments:" Remember your opponent's objective. She wants to watch you testify and observe your demeanor, your passion, your best arguments. You likely will have a lip-biting temptation "to give it to her." If you succumb, you have given her the ability to undermine your claims at trial. Your cannot win your case in a deposition, but you may lose it if you are not careful.

Take a break if you need one: If you become tired or your concentration starts wondering, simply ask for a brief break.

Ask to speak with counsel if faced with a crisis: If you face a pivotal question regarding a pivotal issue and you are completely stumped, you may ask to speak with your counsel. While this practice is disfavored and the opposing attorney may huff and puff on the record, it is the clearly the lesser of two evils, the other being that your case self-destructs before you and your lawyer's eyes.

Don't be intimidated: Clients often have this "bigger than life" view of the other attorney. They think he knows more than he knows, is smarter than he is, and is going to harm them more than he actually can. If are prepared as instructed and are truthful in your answers, you can enter the depositions confidently, knowing you will do the best you can.

If you don't know, say so: You have no obligation to know the answers to all questions. If you don't know the answer, simply say so, or, if you think you are going to have an answer in the future, you might in some cases say, "I don't recall at this time." These are valid responses. In no event should you allow opposing counsel to lure you into speculating or guessing. If the opposing counsel persists, politely repeat your answer.

Don't be lead: Your questioner will subtly direct you toward points he wants to establish. It is to some extent human nature to seek to agree. He may in fact assume the demeanor of a friend. The bottom line is that the opposing attorney is your arch enemy. When he makes a statement or asks a question that assumes something untrue, interject a correction. Within the bounds of courtesy, make sure your point is made. You should also interrupt opposing counsel if you need to correct a misimpression or misstatement.

Maintain a professional demeanor at all times: The other attorney may attempt to anger you, to rattle your cage. He may be rude or sarcastic. However he treats you, you do not allow your anger to show. Such repayment in kind reflects badly on you. Leave it to your attorney to intervene when appropriate.

Answer the questions as accurately as you can: This means being truthful. But beyond that, it means not exaggerating your case. Be careful about powerful claims you cannot back up. This hurts your credibility on the claims you can backup. Don't bring your records or notes to the deposition unless your attorney specifically tells you to bring them. When you refer to records during a deposition, the other attorney has a right to see them.

Feel free to pause and consider your answer: The transcript is the only record and, unless counsel orally notes the pause, the transcript will give no indication of how long you took to answer. Unlike during trial, in a deposition thinking time is without penalty or prejudice. Feel free to use it.

If you do not understand a question, say so: You are not punished for asking that the question be rephrased or repeated. In fact, you may misstep seriously if you proceed as if you understand the question when you are really unsure.

Do not rush to answer: It is important to pause a few seconds after every question to allow your attorney time to insert an objection. (Additionally, your attorney, like you, could use a second or so to consider his response as well).

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.