How to survive a deposition.

“I am not struck so much by the diversity of testimony as by the many-sidedness of truth.” Stanley Baldwin

What the heck is a deposition? A deposition is your testimony under oath. Opposing counsel will ask you questions. A court reporter records the proceedings and all questions and answers. The judge will not be present. Usually, the deposition is taken in one of the attorneys’ offices or at the court reporter’s office. There is little difference between the testimony at a deposition and the testimony in the courtroom except that a judge does not preside at a deposition and rule over the matters as they arise.

The opposing side is taking your deposition for three main reasons. First, they want to discover what facts you have in your actual knowledge and pos­session about the issues in the case. In other words, they want to know what your story is and what it will be at the time of the final hearing. Second, they want to pin you down to a specific story. This way you will have to tell the same story at the final hearing. Through a deposition, they will know in advance what your story is going to be. Finally, they hope to catch you in a lie to show at the final hearing that you are not a truthful person. This will cast doubt on your testimony, particularly the crucial and contested points. These are very legitimate purposes and the opposing side has every right to take your deposition. Correspondingly, you have the same right to take depositions of the opposing party and all witnesses.

Notably, a skilled attorney will not do what I call the “Perry Mason” routine –in other words, there will not be a “gotcha” moment during your deposition. A smart attorney will save that until you are in front of the judge — when it actually makes a difference. Rather, he or she will simply lay the foundation by getting you to admit facts or make statements that can later be used to discredit you at trial.

As with many things, preparation is the key to giving a good deposition. Knowing your story backwards and forwards is critical to being able to answer questions competently. But, perhaps more importantly, honesty is the best policy. Being caught in a lie about something damaging to your case is far worse than simply admitting the damaging facts in the first place. Tell your story as it really happened –warts and all. Nobody has a perfect case. It is your attorney’s job to present your facts to the court in the best possible light.

But being honest does not necessarily mean volunteering information. Always remember that, either as a litigant or a witness, your only purpose is to give the facts as you know them. You must give the facts if asked. You do not, however, have to give opinions. Never state facts that you do not know. Quite frequently the deposing attorney will ask a question and, even though you feel you should know the answer, you do not. Don’t guess! This is not an I.Q. test. Often the correct answer is “I don’t know” or I don’t recall “. A guess or an estimate of an answer is usually the wrong answer and the opponent can use the guess to show that you either do not know what you are talking about or imply that you are deliberately not stating the truth.

Never attempt to explain or justify your answer. You are there to give the facts as you know them and not to apologize or attempt to justify those facts. Any attempt at such would make it appear as if you doubt the accuracy or authenticity of your testimony. And do not try to argue your case with the opposing attorney. Save your explanations for court.

Do not let the opposing attorney get you angry or excited. This destroys the effect of your testimony and you may say things that may be to your disadvantage later. It is sometimes the intent of attorneys to get a deponent excited during the testimony. Deponents may say things that the other side could use against them later. Give only the information you have. Respond to questions in the same tone of voice and manner that you would in answering your own attorney’s questions. The mere fact that you get emotional about certain matters could be to your opponent’s advantage in the case.

You should take your time in answering questions when necessary. Remember, the transcript of your deposition does not show the length of time used in considering your answer. However, it is advisable to answer all questions in a direct and straightforward manner.

Tell the truth. The truth during a deposition or on the witness stand will never really hurt a litigant. Do not try to figure out beforehand whether or not a truthful answer will help or hinder your case. Answer truthfully. Your attorney may explain away the truth, but he cannot explain lies or concealment of the truth.

Do not volunteer any facts that are not specifically requested by a question. Think of the deposition as if you are on the witness stand. Don’t volunteer; do not elaborate. You can answer questions with “yes,” “no,” “I don’t know,” or, if appropriate, “I don’t remember.” Answer yes or no, if possible

Make sure that your answers are audible and that you answer “yes” or “no” rather than “uh-huh” or nodding your head. Remember that what you say is being transcribed by the court reporter; non-verbal answers will not appear on the record or may be misinterpreted.

Your attorney may object to certain questions but, unless you are instructed otherwise, you must still answer the question asked. You can consult with your attorney or take a break at any time but if a question is pending, you must answer the question first.

Depositions can most certainly be stressful and frightening. However, keep things in perspective and you will be fine. Relax. Listen to the questions. Answer them truthfully. Simple.

How to survive a deposition.

Surprise! Divorce rates are actually declining.

“40% of all statistics are wrong . . . “


If you watch the news, surf the web or read a popular magazine, you’d think that there is virtually no hope for the institution of marriage.  So often I have heard that the divorce rate for first marriages is around 50% and that the divorce rate for second marriages is well over 60%.  But where do these numbers come from and what do they mean? Are they accurate?

As it turns out, we really don’t know.  While it seems counterintuitive, there is no generally accepted method for determining the true divorce rate.  For example, the widely quoted 50% divorce rate in the US actually represents a best-guess, a shortcut method of comparing the number of divorces and marriages in the same year. However that is not an accurate method for assessing the divorce rate because it does not compare equivalent groups. In 1980, for example, older couples may have been divorcing at a high rate because of the introduction of no-fault divorce laws, while younger couples might have been putting off marriage because more women were pursuing careers. Even if the number of marriages that year were twice the number of divorces, that is not the same thing as saying that half of all marriages end in divorce. Dr. Rose M. Kreider, a demographer in the Fertility and Family Statistics Branch of the Census Bureau, told the New York Times in 2005, “At this point, unless there’s some kind of turnaround, I wouldn’t expect any cohort to reach fifty percent, since none already has.”

While we may not know what the true divorce rate really is, we do know one thing: based upon census information gathered by the CDC, the divorce rate in the US is actually declining and his been since its peak in the mid-1980’s.  About 70 percent of marriages that began in the 1990s reached their 15th anniversary (excluding those in which a spouse died), up from about 65 percent of those that began in the 1970s and 1980s. Those who married in the 2000s are so far divorcing at even lower rates. If current trends continue, nearly two-thirds of marriages will never involve a divorce, according to data from Justin Wolfers, a University of Michigan economist.

Measuring divorce rates as defined by the number of divorces per thousand people yields the same basic results.  By this measure, the divorce rate peaked at 5.3 divorces per thousand people in 1981, before falling to 4.7 in 1990, and it has since fallen further to 3.6 in 2011, the most recent year for which data are available. Notably, the marriage rate has also fallen over this period, but even measuring divorces relative to the number of people who are married shows that divorce has fallen by about 24 percent compared to peak percentages.

The decline in divorce rates over the past three decades may be due to a growing tendency to marry later in life and the fact that more people try living together prior to marriage. The trend is also not equal across the board: lower income families and those without college degrees tend to have higher divorce rates.

There is hope that the trend will continue.  Couples whose parents have stayed married are roughly 15% less likely to divorce themselves.  Accordingly, as more couples remain married, the higher the likelihood that their children will also remain married.

Surprise! Divorce rates are actually declining.

Don’t blow your privilege!

Silence is a true friend who never betrays.”


The attorney- client privilege is an important ally in your case. It allows you to communicate openly and honestly with your attorney without fear that your communications will be revealed to the other side.  It can be a fragile thing, however, and care must be taken to preserve the privilege.

Most importantly, the attorney-client privilege is afforded only to confidential communications between the attorney and the client. To be confidential, the communication must not be intended to be disclosed to a third person other than those to whom the disclosure is made in order to provide legal services to the client, such as the attorney’s associates and other staff. For example, an eavesdropper would not be able to testify about communication that is otherwise subject to the privilege, given that a third person’s eavesdropping is not a breach of confidentiality, because that disclosure was not intended.

Of particular concern in family law matters is the frequent desire of clients to have a friend or family member present during meetings with the attorney. I recently litigated a case in which the other side’s attorney had (at the client’s request) copied the client’s family members on all correspondence. Surprise!  All of those communications were now discoverable. I’ve also had the issue of waiver of the privilege arise where documents were kept by a party in a location to which the other side had ready and regular access and under conditions clearly not designed to maintain the confidentiality of the documents.

In other words, maintaining the privilege takes some effort and thought. If a communication between an attorney and a client is made in the presence of someone else, then it would not be considered to be confidential. Likewise, communications between an attorney and a client that are made in a public place would not normally be intended to be confidential, and therefore generally do not fall under the privilege. Similarly, the privilege can be waived where the contents of the communications are later disclosed to third parties.  For example, an attorney’s advice contained in an email to the client loses its privileged status if the email is copied or subsequently forwarded to a third party.

Accordingly, you should not allow others to see any mail that your attorney sends to you because it might no longer be considered a confidential communication between you and your attorney. You should take appropriate and reasonable steps to maintain the confidentiality of all documents related to your case by keeping the documents in a secure location. Similarly, no e-mails from your attorney should be forwarded by you to anyone else. Neither should you discuss with others the advice you receive from your attorney regarding your case.

The privilege belongs to you, the client, who may prevent an attorney’s disclosure of confidential information as a witness or of production of evidence in a legal proceeding regarding the client. That also means, however, that the responsibility to not to waive the privilege lies in your hands.

There are, of course, limits to the scope of the privilege and it is narrowly construed because it is in conflict with the general principle that the legal process should seek the truth and full disclosure of important facts. For example, the privilege only protects communications in which legal advice was sought or rendered. In other words you can’t protect facts from being discoverable simply by incorporating them into a communication with your attorney.

If you have any question as to the confidentiality of your communications with your attorney, you should have an open and frank discussion with him/her. But the take home message here is to avoid the temptation to share what you discuss with your attorney with your friends and family.  Unless you want those discussions to be discoverable by your ex.

Don’t blow your privilege!

Take a deep breath before you click “send”.

“Speak when you are angry – and you’ll make the best speech you’ll ever regret.”

Laurence J. Peter

Although email, text messages and other forms of electronic communication are a necessary evil, I am a big fan of letters. While clearly text messages have their place, they are rarely a good forum for meaningful communication about issues relating to your family law matter.

The biggest problem with electronic communication is the absence of human context. As a species we have developed the ability to communicate complex concepts and emotions; but that communication is not just verbal or written. It has been said that up to 90% of our communication is nonverbal – our facial expressions, hand gestures, tone and body language all play a huge role in expressing what we feel and intend to communicate. Emails and text messages are obviously devoid of any such nonverbal communication. It is for that reason that so many electronic communications are misunderstood or misinterpreted, resulting in anger, resentment and frustration.

And the fact that electronic communication does not require the sender to face his or her recipient in person adds to the willingness of most people to say hurtful things.

When my daughters were about 12 years old, AOL Instant Messenger had become all the rage. Neither they nor I were familiar with this brave new world of instant written communication.I could hardly pry them away from the computer and it seemed that virtually all of their friends were now . . . well, virtual. Undoubtedly, many painful and nasty things were said under the cloak of anonymity. However, many a tear was shed over what appeared to me to be completely innocuous communications. In the tortured minds of my sweet adolescent daughters, virtually every comment was an insult.

It is, of course, true that a written letter also fails to incorporate elements of nonverbal communication. However, they generally tend to be far more thought through than the average text message or email. If there is something important to talk about with regard to your children, your spouse or your case, dignify the importance of the message by either communicating in person, through a counselor or in a well thought-out written communication.

There is something about the instantaneous nature of text messages (and, to some extent, emails) that tempts us to use them to respond when we are angry or hurt. When we receive a text message that seems insulting or derogatory, we rarely ask ourselves if the sender meant to say what we heard. Worse, we can instantly strike back with a nasty text message of our own.


Text messages are regular fodder for court exhibits in my practice. It is because they are often not well thought through that they often reflect the raw emotion, pent-up frustration and sheer animosity of the litigants. In other words, people often say stupid things in their text messages and these often become Exhibit A in their court case. And I’m not the only family law attorney doing this. 92% of AAML divorce attorneys cited an increase in cases using evidence taken from smart phones during the past three years. In that same survey, 94% noted an increase in text message evidence. And, as discussed in a prior post, 81% of AAML members say they have seen increased use of evidence from social networking websites during the past five years, mostly from Facebook.

Angry electronic communications are often used in court to show the inability of two parents to coparent their children, to rebut other testimony or to establish a litigant’s state of mind or attitude towards the other party. So long as the text messages are properly transcribed and complete, there is little your attorney can do to prevent them from being shown to the judge.

Aside from the impact that such communications can have on your case, try to think of the impact your communications will have on your relationship with your ex, particularly when children are involved. I have rarely seen an angry series of text messages between two parties that resolved a dispute or convinced one of the parties that their position was somehow irrational or wrong. So really: what’s the point?

Think before you text. If you really have something important to say, stop, take a deep breath, and write a letter.

Take a deep breath before you click “send”.

Why Facebook is the Devil

“What kills a skunk is the publicity it gives itself.”image

Abraham Lincoln

If at any point in your divorce proceedings you feel compelled to publicize any aspect of your divorce – don’t.  It never ceases to amaze me what people will post on Facebook or other social media sites about their divorce, their ex or themselves.  I suspect it has to do with the gratification of having a public forum readily available, surrounded by online “friends” who will support you no matter what you say.  But remember: Facebook “friends” are not real friends and vindication by carefully crafting your post so as to only tell one side of the story is not true vindication.  In fact, it is meaningless.

More importantly, it can be destructive beyond belief.  First, comments made online have a tendency to get back to your ex, a friend of your ex or – God forbid – your children or your children’s friends. Worse yet, your public, online statements frequently end up in front of the judge.

But it’s not just negative comments about your ex or his/her new significant other that can lead to trouble.  Enter: the selfie.

Why do we feel the need to post pictures of ourselves engaging in ridiculous, dangerous (or, worse, illegal) behaviors? Drinking, partying and general carousing is fine within reason, but it should not be your online public persona.  Selfies depicting wild and crazy antics will undoubtedly end up being used against you and will be shown to the court.

The best rule of thumb is: don’t post anything you wouldn’t want a judge to see.  And if you have any doubt, don’t post.

Attempting to litigate your case in the court of public opinion is almost never a good idea. Trying to prove that you have “moved on” by posting pictures of yourself acting like a frat boy is a sure-fire way to damage your case.

If you need support, talk to your counselor.  Or a real live friend. They listen better.

Why Facebook is the Devil

Should I File First?

“The present time has one advantage over every other – it is our own.” – Charles Caleb Colton

When divorce is imminent, is there any advantage to being the first to file? The short answer is yes.

From a legal standpoint, there really should be no advantage as both the parties stand on the same legal footing.  But as a practical matter, the Petitioner (the filing party) will generally present his or her case first, thereby getting the opportunity to make the first impression on the court.  Additionally, once the Respondent has presented his or her case, the Petitioner will once again have the opportunity to present rebuttal testimony, thereby also gaining the advantage of having the last impression with the court.  We all inherently know the importance of first and last impressions; social scientists call these the primacy and recency effects.

But there are more significant advantages to being the filing party.  The party that files has the ability to select the timing of filing, giving them the ability to prepare both emotionally and financially.  The filing party may have more time to investigate and select a lawyer or to protect marital assets from dissipation. By filing, there is control over the possibility of foot-dragging and delay.

It is my firm belief, however, that the biggest advantage of filing first is the impact that being proactive has on the Petitioner’s mindset and attitude towards the divorce process.  By filing, you are taking action; by taking action, you are taking control. There is nothing worse than waiting for something awful to happen to you and no better cure for that “Sword of Damocles” feeling than to be the one to rip off the bandaid.

The sense that you are in control of your own destiny – rather than at the mercy of your now-adverse spouse – can be an enormous relief and advantage throughout the divorce process.

Should I File First?

There is no such thing as too much information.

Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family. Kofi Annan

In litigation, there really is no such thing as too much information.  Both for the client, as the consumer of legal services and for the attorney working to guide the client through the difficult and unfamiliar landscape of our legal system.  Nowhere is that more true than in family law litigation.  Our clients rarely have much — if any — experience with the legal system.  Take that lack of experience and add the overwhelming emotional trauma of divorce or child custody issues, the financial stress on the family inherent in the new family reality and the cost of litigation and what results is a perfect storm of stress and uncertainty.

Is it any wonder that clients turn to the internet, well-meaning friends and family for information and guidance?

Family law attorneys often spend much of their face time with clients clearing up misinformation gleaned from the web or from third parties trying desperately to buoy a friend’s spirits with not-entirely-accurate tales from their own divorce. While there is certainly nothing wrong with the support of friends and family, try not to believe everything you hear.  If it sounds too good to be true, it most likely is.

There are many reasons information from third party sources may be inaccurate. The law varies from state to state. Procedure can vary from county to county.  Every judge is different, every case is different and every child is unique. Your friends and family want to give you encouragement so they tell you what they think you want to hear.  Worse yet, people will often dramatize their own divorces or don’t want to tell the entire story.

Misinformation can be worrisome at best.  At worst, it is incredibly destructive.  Expectations are created, often unattainable and unchangeable. Anger or resentment often rises when an ex-spouse refuses to do what my friend’s uncle’s brother did for his ex.

So where do you go to get good information about what you can expect?  Why, your attorney, silly.  And within the context of that relationship, there is no such thing as too much information. There are no stupid questions.

Every good family law attorney should strive to inform his or her client to the fullest extent possible about what to expect through the litigation process, procedurally, financially, emotionally and otherwise.  Clients need to be prepared for the decisions they will need to make, the choices they will have to face and the consequences that will result from those various paths.

In short, the cure for misinformation is good information. And lots of it. That includes not only providing data when asked, but knowing when the client needs information he/she has not asked for. We provide informational letters at various stages of the process to ensure our clients have appropriate information –even when they haven’t asked for it. We ensure that the entire staff is up to date on every case so that basic questions can be answered quickly and efficiently.  Ensuring that the client has ready access to data, case events and documentation is one of our primary goals.

But the provision of information is a two-way street.  Your attorney cannot properly advise you without all of the pertinent information. That means that you need to be open and honest — not always the easiest thing to do when dealing with the sensitive landscape of family issues.  You need to feel comfortable divulging the good, the bad and the ugly truth because you can be assured that your ex is telling his attorney about it. And there is nothing worse than your attorney discovering a bad fact in the middle of a hearing or other proceeding.

What I love about family law is the diversity of the scope of my work. Helping people through family transitions in the healthiest way possible is what I strive to do with every case.  Developing trust with my clients so that they feel comfortable providing as much information as I need is a key factor in a successful outcome. Providing the information that my clients need is key to developing that trust and making the litigation process tolerable.

There is no such thing as too much information.