Panic sets in your lawyer has told you that there will be an EBT (Examination Before Trial) also known as a deposition and that you will be asked questions under oath. You wonder what will happen, can you get into trouble if you don't know an answer, what if the lawyer is mean, how long will it last, what do I have to bring and these are just a few of the questions I am commonly asked by clients.
In a contested divorce case, depositions are scheduled in advance but the first thing that you need to know is that they are often adjourned the first time the date comes up. Inevitably, there is a delay for any or all of the following reasons: the lawyer has to be in court and cannot attend; the previously requested documents and interrogatories (see prior blog) have not been answered; someone is sick or out of town; or there is a family emergency. Therefore, it is common practice for the attorneys to confirm the day before whether the deposition will proceed as scheduled.
If you are the person being asked questions you should request a meeting with your attorney prior to the deposition so that you can have the procedure explained and prepare in advance for the aniticipated questions. While it would be impossible to prepare for every question, the general form, content and style should be explained to you. If you have previously completed a Statement of Net Worth and/or signed other affidavits about financial matters you should review them so that your answers at the EBT will match your prior written statements.
I have a standard set of oral instructions that I give my client prior to the deposition which include in brief summary: only answer what has been asked; do not volunteer information; listen to the whole question before answering; do not guess; if you need to refer to a document do so if allowed; do not disclose confidential communication with your attorney; and, if I start to speak you must stop speaking.
In addition, the preparation time with the attorney is valuable especially if there are some troublesome issues. You can speak with your attorney and receive suggestions how to best answer difficult financial questions. Since the deposition is under oath, your attorney will remind you that your answers must be truthful. If your answers would admit criminal activity your attorney will tell you to invoke your Fifth Amendment Right to avoid self-incrimination. But likewise, there are certain civil consequences to seeking to protect yourself.
On the other side of this issue is the preparation of your attorney to ask the questions of your spouse. If necessary, your attorney may wish to meet with you to help understand complex financial transactions so that the right questions are asked of your spouse.
Depositions are important because after the transcript is prepared and signed the transcript can be used to confront you at trial if your answers are substantially different to the same questions. So the written record can be used both at trial and in motion practice as your sworn statement. Therefore, preparation before your testimony is very important.