Deposition Prep
In this episode of How to Split a Toaster, Seth Nelson and Pete Wright dive into the crucial topic of preparing for a deposition in your divorce case. Seth, our seasoned divorce attorney, guides Pete through a mock deposition, providing invaluable insights and strategies to help you navigate this challenging process with confidence.
Throughout the episode, Seth and Pete engage in a lively and informative discussion, highlighting the importance of understanding the rules of a deposition and how to effectively respond to questions. Seth emphasizes the need to listen carefully, answer honestly, and provide concise responses while avoiding the temptation to over-explain or become defensive. He also shares real-life examples that demonstrate how seemingly simple questions can potentially trip you up if you're not properly prepared.
Questions we answer in this episode:
• What are the key rules to follow during a deposition?
• How can I prepare myself mentally for a deposition?
• What are some common mistakes to avoid when being deposed?
Key Takeaways:
• Listen carefully to each question and only answer what is asked
• Keep your responses concise and honest
• Trust your attorney to defend your case and tell your story
By the end of this episode, listeners will have a clearer understanding of what to expect during a deposition and how to approach this critical aspect of their divorce case. Seth's expertise and Pete's relatable perspective combine to create an engaging and informative listening experience that will leave you feeling more empowered and prepared to face the challenges ahead. Whether you're in the midst of a divorce or simply seeking to educate yourself, this episode is a must-listen for anyone navigating the complex world of divorce law.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. Today your toaster's on the stand.
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright.
Pete Wright:
Okay.
Seth Nelson:
Now, Pete.
Pete Wright:
Yeah, I'm nervous.
Seth Nelson:
You're going to be the client today.
Pete Wright:
Hot pivot. I'm ready. I'm ready and I'm an idiot, so we should be in great shape.
Seth Nelson:
Okay, so here's the concept here. Andy, our producer, the man who's not allowed to talk on the show said, "Seth."
Pete Wright:
Yeah, but who runs the whole thing.
Seth Nelson:
Exactly, the man behind the curtain. "If you ever have anything that comes up in your cases, let us know, because we should do a podcast on them." And I just recently prepared a client for a deposition and then trial testimony. And Kristin Scully, one of our great attorneys here at NLG, said, "Have you done a podcast on that?" And I thought we did, and I was mistaken, because I'm never wrong, sometimes mistaken, okay?
Pete Wright:
But you're actually neither wrong nor mistaken, because we did, but nobody's heard it because it was in our practice podcast before this podcast.
Seth Nelson:
That's why. Well, it's nice of you to save me, but I'm about to put you through the wringer here. So, that was like, "God, it's not getting you off the hook."
Pete Wright:
Terrific, yeah.
Seth Nelson:
Okay, so this is one of the things that I think is critically important, and in my experience a lot of lawyers don't do well, if at all.
Pete Wright:
Okay.
Seth Nelson:
To set the stage, case hasn't settled, and you're going to be deposed, which means the other lawyer, who is paid to try to take your children and your money from you is going to ask you sworn questions. In these questions, in your answers, literally can be given to the judge in court and said, "Here's what they said. Here's what Pete said." I spend a lot of time preparing my client for depositions. Let me tell you what I don't do. I don't write questions and then write the answers and have my client memorize them, because you're not allowed to do that. It's called "coaching" in quotes, but you're allowed to prepare people, okay? This is the preparation. You ready?
Pete Wright:
I am, I think.
Seth Nelson:
Okay. We're going to start with the rules of a deposition. And the rules are this, Pete, you're going to listen to the question. You're going to think about the question. And this is the first decision point, if you understand the question, answer it honestly in the least amount of words as possible.
Pete Wright:
Okay.
Seth Nelson:
And then shut the fuck up.
Pete Wright:
Okay. It's that last point we're going to need to review, I worry.
Seth Nelson:
Yes. Okay, listen to the question.
Pete Wright:
Got it.
Seth Nelson:
Think about the question.
Pete Wright:
And is there a character I need to take on?
Seth Nelson:
No.
Pete Wright:
Do I need to do some voice work or, because-
Seth Nelson:
No.
Pete Wright:
Nope, okay.
Seth Nelson:
You are you. You are the star of this show.
Pete Wright:
Okay.
Seth Nelson:
Listen to the question. Think about the question. If you understand the question, answer it honestly.
Pete Wright:
Few words, honestly.
Seth Nelson:
In the least number words as possible.
Pete Wright:
And then shut up.
Seth Nelson:
Then shut the fuck up.
Pete Wright:
Okay.
Seth Nelson:
Okay. Now, there'll be some exception to this down the road, but these are your rules.
Pete Wright:
Got it.
Seth Nelson:
Are you ready to begin?
Pete Wright:
Yes.
Seth Nelson:
Okay. Look how you were practicing.
Pete Wright:
Yeah, I was just, now-
Seth Nelson:
I saw that.
Pete Wright:
I almost said, "Yes, counselor," but then I realized, that's superfluous.
Seth Nelson:
Right, very well done. Okay, so we are going to practice. I'm going to say, when I am in the role of the lawyer trying to take your money and your kids from you, I'll say, "I'm the bad lawyer, okay? I'm opposing counsel, let's go." And then I'll say, "Okay, I'm Seth. Let's talk it through."
Pete Wright:
Okay.
Seth Nelson:
Okay, Good. Here we go. Perfect. You're in a deposition. A deposition, sworn testimony. No judge, just the court reporter, the other lawyer, his client maybe, you, your lawyer. Here we go.
Pete Wright:
Okay.
Seth Nelson:
I'm the bad lawyer now. State your name for the record.
Pete Wright:
Peter Wright.
Seth Nelson:
Pause. Seth here. How'd we do? A, B, C, D, or F?
Pete Wright:
A, I did exactly what I needed to do. I stated my name and then I shut up.
Seth Nelson:
Okay, here we go. You got an F.
Pete Wright:
What?
Seth Nelson:
As do all of my clients that go through this, you got an F.
Pete Wright:
That's so mean. This is so mean. Why did I get an F?
Seth Nelson:
Okay, we're going to explain it. What did I say to you?
Pete Wright:
State your name for the record.
Seth Nelson:
Okay, you're a smart guy, Pete. Is that a question?
Pete Wright:
Well, no, you just asked me to do a thing and you're an attorney.
Seth Nelson:
I didn't ask you, I demanded. Nowhere in my instructions to you were to respond to demands or statements.
Pete Wright:
What do I say in that case? You bad attorney, ask the bad attorney to come back.
Seth Nelson:
Hold on, hold on. Still good attorney here.
Pete Wright:
Okay, all right.
Seth Nelson:
This is the point. I gave you a command. Of course, if you are sitting in the stand in a depo and they say, "State your name for the record," you're going to state your name. Because I as the good attorney am going to look like an idiot to say, "Objection, not a question."
Pete Wright:
Okay.
Seth Nelson:
Okay. And I'm good enough at looking like an idiot on my own, I don't need your help.
Pete Wright:
You don't need any help, right?
Seth Nelson:
But here's the point. Later in the deposition the lawyer is going to say a statement such as, "You don't manage money well."
Pete Wright:
That's a shut the fuck up.
Seth Nelson:
That is a statement, and you do not respond, because this is not a conversation, it's an interview. Questions, answer. Questions, answer. Got it?
Pete Wright:
That is a really, I get it. I understand why I failed. I'm ready.
Seth Nelson:
Okay, here we go. Start again. Bad lawyer here. Try and take your kids and your money. What is your name?
Pete Wright:
Peter Wright.
Seth Nelson:
Pause. Seth here. How did you do, A, B, C, D or F?
Pete Wright:
A, totally A, you asked a question.
Seth Nelson:
I did. What are the rules?
Pete Wright:
To answer questions, did I understand the question? Answer the question in as few words possible and then shut the fuck up.
Seth Nelson:
Okay, hypothetical here, I'll tell you. You got a B.
Pete Wright:
Oh, my goodness.
Seth Nelson:
Not an A, yep. You got a B. Now, I want you to think back, before you were dating your wife who you loved dearly, and you're in a bar with your buddies and a gorgeous woman comes up to you and says, "You're very attractive. I would love to buy you a drink and get to know you more. What's your name?" What are you saying?
Pete Wright:
Peter Wright. And then I shut the fuck up.
Seth Nelson:
No, you do not say Peter Wright.
Pete Wright:
Exactly what would happen.
Seth Nelson:
No, tell the truth.
Pete Wright:
Two can play at this game. I would say Pete, yeah.
Seth Nelson:
That's right. You would say Pete. Now why, when I told you your rules, did you say Peter Wright?
Pete Wright:
Because I'm in a courtroom. I'm in a conference room with a bunch of attorneys.
Seth Nelson:
That's right. You are in a formal setting and you answered formally. When I gave you the hypothetical in the bar, you're not in a formal setting and you answered informally. Nowhere in my rules does it say answer formally. It says, "Answer in the least number of words as possible and shut the fuck up."
Pete Wright:
And I gave my last name. They already know my last name. They're going to say, "Please state your name for the record," I should just say Pete?
Seth Nelson:
That's the question. That's the answer. That's the answer following the rules. Let me show you how this plays out. Here we go. Bad lawyer again. What's your name?
Pete Wright:
Pete.
Seth Nelson:
What's your full name?
Pete Wright:
Peter Damon Wright.
Seth Nelson:
Good lawyer here, A plus.
Pete Wright:
Okay.
Seth Nelson:
A plus.
Pete Wright:
Okay.
Seth Nelson:
You've done two things very well there. One, you followed the rules on the first question. You did not help me do my job by giving your full name, you made me ask a second question.
Pete Wright:
Okay.
Seth Nelson:
You made me do my job. Some judges will say, not all of them, I wish more did, "Mr. Nelson, you have an hour for this hearing. You get a half hour, the other side gets a half hour." You just made that lawyer burn his time.
Pete Wright:
Okay.
Seth Nelson:
Because he asked a bad question, okay? The other thing you did very well when I said, "What is your name?" You gave your full name. You said, "What's your name?" "Pete." "What is your full name," I said, you gave your middle name.
Pete Wright:
Yeah, that's my full name.
Seth Nelson:
That's right. But a lot of people miss the word full, they give their last name. And then I say, in my hypothetical preparing the clients I say, "Do you have a middle name?" "Yes." "Do you recall that you just answered your question on what is your full name and you didn't give me your middle name?" They're like, "Oh, oh, it's this, this, it's Damon." "No, no, that's not my question. So, did you answer it honestly the first time?"
Pete Wright:
Now you're questioning my credibility because I didn't say my middle name.
Seth Nelson:
Right off the bat, and it just gets people shook.
Pete Wright:
Goodness.
Seth Nelson:
And I'm doing that, at this point in the prep my clients are not feeling good or confident, okay?
Pete Wright:
No, I'm on a podcast and I'm not feeling good or confident.
Seth Nelson:
Right. But here's the point. This is why we practice. You're in the gym lifting and your arms are sore. You're out running and you're breathing hard, because the next time you do it's going to be easier.
Pete Wright:
Okay.
Seth Nelson:
Okay, very good job so far.
Pete Wright:
Well, okay.
Seth Nelson:
Okay. Doesn't feel like it, very good job. Because here it goes, "Bad guy, what's your name?"
Pete Wright:
Pete.
Seth Nelson:
What's your full name?
Pete Wright:
Peter Damon Wright.
Seth Nelson:
See, easy. You learned that in five minutes, but we spent five minutes on your name.
Pete Wright:
Yeah.
Seth Nelson:
Right.
Pete Wright:
Right.
Seth Nelson:
Right, okay.
Pete Wright:
That's the embarrassing part. I am actually wondering what my name is right now. I'm not entirely sure that I know.
Seth Nelson:
Well, you don't want to know what Andy calls you. Okay, so, we've also learned that you don't respond to statements.
Pete Wright:
Yes.
Seth Nelson:
Okay, I just did something there that I knew you were going to do. I said the phrase, "We do not respond to statements."
Pete Wright:
And I answered, God dammit.
Seth Nelson:
No, no, you weren't on the stand. We're just talking here. But I paused. And when people pause, people don't like the silence and they start talking again. So, you've got to get comfortable with the silence. A question is asked, and you answer. And when you shut the fuck up, that isn't shut the fuck up until you're uncomfortable with the silence and start talking again.
Pete Wright:
You can't handle it. Okay.
Seth Nelson:
Stop talking. It's their job now to ask another question, make them do their job.
Pete Wright:
Okay.
Seth Nelson:
Okay.
Pete Wright:
This is hard.
Seth Nelson:
It is. Now, the other thing that's really hard is not to get defensive and not to try to explain a bunch of your answers. We've talked about it before. You don't get your day in court, your lawyer does. But when you're on the stand, you think it's your day in court. And you think that if you just explain to the judge what's going on, everything's going to work out just fine and in your favor. I assure you that's not the case. I'm going to give you a little break here.
Pete Wright:
Okay.
Seth Nelson:
I'm going to have you play the judge.
Pete Wright:
Oh.
Seth Nelson:
The point of this is, when the other side gets done with their deposition of you, or if you're in testimony, when you're on the stand, when they get done with you, you should look bad. You should look bad. If they're doing their job and you're following the rules, you should look bad. And my point of this is, that's why you have a lawyer to clean it all up and tell a different story, okay? Here we go. You are the judge. I'm going to play the role of the wife's attorney, and I'm also going to play the role of the husband who's on the stand.
Pete Wright:
Okay.
Seth Nelson:
And then we're going to pause. I'm going to ask you a question, and then we continue the hypothetical.
Pete Wright:
Got it.
Seth Nelson:
"Sir, are you asking for 50/50 time-sharing in this case, shared custody?" "Yes." "In the last 365 days, how many overnights have you spent with the children?" "Five." "Has your wife prevented you from spending any time with the children in the last 365 days?" "No." "Did you text your children at any time in the last 365 days?" "Yes." "How many days?" "Five." "Were those the same five days that you had overnights with them?" "Yes." "Did you text them the other 360 days?" "No." "Did you send them any mail in those 360 days?" "Yes." "How many times?" "12." "Did you call them in those 360 days?" "No." "And you're asking this court to give you 50/50 time-sharing?" "Yes." Your Honor, Pete?
Pete Wright:
Yeah.
Seth Nelson:
How do you rule?
Pete Wright:
Bailiff, please remand this man into custody. He's an idiot.
Seth Nelson:
Okay, So, I'm assuming you're not giving him 50/50?
Pete Wright:
No, he's no.
Seth Nelson:
Why?
Pete Wright:
I would not give him 50/50, because he has not demonstrated any interest in having the kids more than five days.
Seth Nelson:
There it is, the assumption. He's not demonstrated any interest. There was no testimony about his interest.
Pete Wright:
No.
Seth Nelson:
But that's the assumption you've made based on the evidence presented, and a judge is allowed to make those assumptions. And good lawyers attack the assumption.
Pete Wright:
Okay.
Seth Nelson:
Here we go. I am now husband's counsel. Husband's still on the stand.
Pete Wright:
And I am still the Honorable Pete Wright?
Seth Nelson:
You got it.
Pete Wright:
All right.
Seth Nelson:
"Are you currently employed?" "No." "Were you previously employed?" "Yes." "Did you quit your job?" "Yes." "Did you get fired or quit?" "I retired." "What was your position?" "I was the Commander in the U.S. Navy, and I was stationed on the Theodore Roosevelt nuclear aircraft carrier." "When did you retire?" "Yesterday." "Where were you stationed for the last 365 days?" "On the U.S. Theodore Roosevelt." "How many, if any days was the Theodore Roosevelt in port?" "Five." "Where did you spend those five days?" "With the children." "What did you do with them?" "Took them to the park, went to games. They had their extracurriculars, helped with homework." "Did you text him in that time?" "Yes." "Did you call him in that time?" "Yes." "Where were you the other 360 days?" "It's classified, but the best I can tell you is I was out at sea." "Did the Theodore Roosevelt ever go into any port in those 360 days?" "No."
"When you're on the ship, are you allowed to make phone calls?" "No." "When you're on the ship, are you allowed to text?" "No." "When you're on the ship, are you allowed to send mail?" "Yes." "How often?" "12 days, one day a month." "Where do you live now?" "I Live in the same development of the marital home. I am five minutes away." "Why did you pick that?" "I wanted to be close in case the kids forgot something, easy to go back and forth, and it's the same school district as the marital home." "Are you asking for 50/50 timesharing?" "Yes." "Can you implement a 50/50 timesharing?" "Yes, I'm retired." "Your Honor, no further questions."
Pete Wright:
So, at what point do you hear Your Honor actually facepalm? At some point he's like, "Oh." Do you hear an audible sigh from the judge?
Seth Nelson:
Only in my head. And when I give people the smoking gun document, I hear, ta, dah, dah.
Pete Wright:
Ta, dah, dah. I mean, that suddenly, I totally get what you mean about attacking those assumptions, because it's so easy to set up the assumptions, especially under the rules that you gave me. And so, it's hard not to see this as just spinning time, right? Just trying to burn through time.
Seth Nelson:
What do you mean by that?
Pete Wright:
I mean, my gut is telling me when I'm being deposed by my wife's counsel to explain more.
Seth Nelson:
That's right.
Pete Wright:
To say all the things that you ended up getting out of me later. Wouldn't it just circumvent this whole back-and-forth thing if I could just get it all out?
Seth Nelson:
No.
Pete Wright:
That's the frustrating part. I get that, yeah.
Seth Nelson:
Here is why. Is you think what you're going to say is going to solve the problems and look, okay, the problem is, on this fact scenario, it seems pretty obvious it's going to solve the problem. But on a trial with 20 different factors you're going to say something that's going to lead that lawyer down a path that he might not have known was even there. And you're not going to even see it. The other lawyer's going to see it and think, "I told Pete to shut the fuck up." Don't give him an inch, make him earn it.
Pete Wright:
Got it.
Seth Nelson:
And the same in court, because you say something, let me give you an example. Years and years ago, question in court, "Sir, how much did you pay in federal income tax last year?" Proper answer and truthful, honest answer, I don't know." Answer in court, "I don't know. I haven't filed or paid my taxes in four years."
Pete Wright:
Noted. You can't handle the truth.
Seth Nelson:
You know what the judge did on that one?
Pete Wright:
Huh?
Seth Nelson:
Did not use a net income when determining child support, because he said, "His gross income is his net income, because he just testified he hasn't paid taxes in four years. And I have no indication to think that he's going to."
Pete Wright:
Wow. Okay. Significant.
Seth Nelson:
So, stop talking.
Pete Wright:
Yeah.
Seth Nelson:
Okay.
Pete Wright:
All right.
Seth Nelson:
Now, the other point of this is it just seems so easy to defend yourself, but it's not your job. Your job is to be the witness, not the lawyer. The lawyer you've hired is to defend your case and tell your case and tell a story through objection-laded testimony, okay? Questions so far?
Pete Wright:
I have no questions.
Seth Nelson:
Okay. If you were following the rules, you just would have said no.
Pete Wright:
No. I would have said no. I knew it as soon as I said it.
Seth Nelson:
Okay, couple other things to be aware of. One, this is not a conversation. Like I said, it's an interview, question, answer, question, answer. The lawyer asks the question, the witness does the answer. You don't ask the lawyer questions.
Pete Wright:
So, give me an example?
Seth Nelson:
"Sir, isn't it true that you don't take your kids to extracurriculars?" You say, "Not to all of them." "Well, is that true because you work really hard and you have a successful podcast business?" "Well, yeah, but it's probably same for you, right, Seth? Or Mr. Nelson, you're an attorney, you're working late hours. We're running late right now."
Pete Wright:
Yeah.
Seth Nelson:
Right. Happens all the time.
Pete Wright:
I totally get that. What about questions like, "Would you rephrase the question," or something like that? What if I legitimately don't understand the question?
Seth Nelson:
I was going right there, okay?
Pete Wright:
Okay.
Seth Nelson:
Here's a question for you. "What, if anything positive you can say about subsection 61.13(3)(b) about your wife?"
Pete Wright:
I don't know.
Seth Nelson:
Right. "Well, what do you mean you don't know?"
Pete Wright:
I mean, no, it's either no, I can't say anything positive because I don't understand section, blah, blah, blah, blah, blah.
Seth Nelson:
You can just say, "I don't know." "Well, why don't you know?" And your next answer is, "I don't know what that section is." Right? It's not, "I don't understand the question."
Pete Wright:
Okay.
Seth Nelson:
Because-
Pete Wright:
Just answer the question as presented.
Seth Nelson:
That's right. You can say, "I don't understand the question." That's perfectly legit, "I don't understand the question." "Well, what don't you understand?" "I don't know what that subsection says."
Pete Wright:
Again, making the lawyer work for it.
Seth Nelson:
Make them work for it. Make them work, okay? The other thing is, I just hate to say this on the show. You're a nice guy, okay? You're a nice guy. And the other thing about you that people don't know is you're very helpful. You're a helpful guy, you like to help out your friends, and-
Pete Wright:
I appreciate that.
Seth Nelson:
... if someone calls you, you're going to be there. And even little things, like if I'm having a problem with the computer and the camera, you're like, "Hold on, I can help you through that. Click here, click here, click here." You're very helpful. That part comes through, and you want to be helpful. And sometimes they're just asking bad questions and you think they know what they're trying to ask, but they asked it so poorly, you're just trying to be helpful, so you're going to answer it anyway. Well, now, now you've got problems. Because you didn't really understand the question. You thought you understood it and you thought it wasn't a good question and that wasn't what he was trying to ask. But on the cold, hard transcript, that's what he said, and that was your answer.
Pete Wright:
And that's what's reported. So, when you say bad questions, it feels like there are two kinds of bad questions. One, because they're inept, right? Those are just terrible questions and they actually don't understand what they're talking about. But the other kind of bad question is a question that's designed to trip me up, like you said in the beginning.
Seth Nelson:
Good lawyers will not have questions designed to trip you up.
Pete Wright:
Oh, okay.
Seth Nelson:
They will let you trip yourself up all on your own.
Pete Wright:
Okay.
Seth Nelson:
Okay? Here we go. I'm Seth, you're Pete, and I'm taking your deposition, okay? Do you believe you're a good parent to your children?
Pete Wright:
Yes.
Seth Nelson:
What if inequalities do you believe that you exhibit that reaches the conclusion, "I'm a good parent?" What characteristics? What did you do for your kids that lead you to that answer, "I'm a good parent?" So, now you're stuck, because I told you to answer in least number of words as possible.
Pete Wright:
Exactly.
Seth Nelson:
This is a softball though.
Pete Wright:
Well, I'm present for all of their special events. I work an abbreviated schedule so that I can drive every carpool. I make their lunches every day and make sure they're well-fed. And I read them stories every night and I do all the voices.
Seth Nelson:
Have you ever had to travel out of town when the kids were school aged?
Pete Wright:
Yes.
Seth Nelson:
And was it a morning that they had to go to school that you were not there?
Pete Wright:
Yes.
Seth Nelson:
And were you there the night before?
Pete Wright:
Yes.
Seth Nelson:
Are you telling the truth now, Mr. Wright?
Pete Wright:
I don't know, man. I don't know which end is up.
Seth Nelson:
Well, here was my question. Did you make lunch that day?
Pete Wright:
No.
Seth Nelson:
But just before you told me you make all of their lunches.
Pete Wright:
I did say that. Most, I should have said most of their lunches. When I am there, I make the lunches.
Seth Nelson:
So, be careful with very strong terms, all, all.
Pete Wright:
Yeah, hyperbolic language.
Seth Nelson:
And then you said every day-
Pete Wright:
Yeah.
Seth Nelson:
... in the next answer, "Every day." Okay. Now, most of the shit a judge isn't going to care about, but it's going to get you flustered. And then when the questions come that he does care about and you're flustered-
Pete Wright:
Because I mean, you've asked the easiest questions so far. What's your name? What's your name, man? And suddenly I'm overthinking everything.
Seth Nelson:
That's right.
Pete Wright:
I'm overthinking everything, and we're just on a dumb podcast.
Seth Nelson:
But we've role played it. You are very good at this. You really want to help our listeners. You put yourself in that role and you're picturing yourself in that role. And so here we are. But these are the type of prep that needs to happen, because you can see how quickly you can get in trouble.
Pete Wright:
Because if you take these questions and you elevate them to the status of, "Now we're going to be talking about your finances. Now we're going to be talking about credit card expenses. Now we're going to be talking about travel-related expenses. Now we're going to be talking about," the things that I don't have even as readily on my head as my name and my carpool status, I can understand how. I just, listening to this, if you have ever been told that you're going to have to go to depo, don't underestimate this process. It's jarring.
Seth Nelson:
Yeah, it's hard. It's hard. But what makes clients do well in these situations is the practice.
Pete Wright:
Can you walk through, we're doing this, an example of asking how to ask questions, don't answer the statements, those kinds of things. But can you give me a sense of just how much time I would expect to spend practicing in this depo prep mode?
Seth Nelson:
Depending on the client, I usually spend an hour going through what we're going through right now.
Pete Wright:
Okay.
Seth Nelson:
Then we have a follow up to talk about the substantive issues in the case.
Pete Wright:
Yeah, I get it. So, first is, how do we do this? And then what?
Seth Nelson:
That's right, because now, look, we've been doing this for about 30 minutes, a little less. Do you feel right now if I pulled out your financial affidavit that you were going to be calm enough to go through those answers? No, you're shook.
Pete Wright:
I feel less prepared than I did when we started.
Seth Nelson:
Right, you're shook. And my job is to prepare you and pump you up, not tear you down. And I do it on these simple things, because that way when we get to the hard things, it's easier. Let me give you some other things that are important to know is, "I don't know," is an acceptable answer.
Pete Wright:
Okay.
Seth Nelson:
When's the last time you made lunches for the kids?
Pete Wright:
I don't know.
Seth Nelson:
I don't know. You can't use it as a crutch on every answer to feel like you don't have to answer, because then the judge is like, he's just saying, "I don't know," which means I don't believe anything he's saying.
Pete Wright:
Yeah.
Seth Nelson:
Right? Can you guess? Let's do it this way. When's the last time you made lunches for the kids?
Pete Wright:
I don't know.
Seth Nelson:
Can you guess about when it was?
Pete Wright:
My kid's 18, he makes his own lunches. I would guess it would have been last school year.
Seth Nelson:
Okay, here we go. What was my question? My question was, "Can you guess?" The answer is, "Yes?"
Pete Wright:
The answer is yes. Oh God, Seth, this is diabolical, diabolical.
Seth Nelson:
Yes, I can guess.
Pete Wright:
I can guess.
Seth Nelson:
Well, why don't you guess? And then the lawyer's going to jump in and say, "I'm going to instruct my client not to answer that. You don't get to guess." Okay?
Pete Wright:
Oh, man. Just when I thought I had my head around this.
Seth Nelson:
All right.
Pete Wright:
Sorry.
Seth Nelson:
Don't guess at answers. If you don't know, you don't know. And give yourself wiggle room. "When did you last make lunches for your kids?" "Approximately a year ago maybe." "Well, why don't you remember that?" "Because they're 18. They've been making their own lunches, I think about a year now."
Pete Wright:
That's a perfectly legitimate point of fact. That's just how it works. They've been making, frankly, they've been making their lunches since they were 14, 13 years old. I don't make lunches anymore.
Seth Nelson:
So, the point of that is you don't have to be so specific on stuff like that. Now, there's some stuff that you should know, right? When's your child's birthday?
Pete Wright:
Yeah, I know the answer to that.
Seth Nelson:
Okay, good. Because you'd be surprised how many parents-
Pete Wright:
How many don't.
Seth Nelson:
... don't.
Pete Wright:
Okay.
Seth Nelson:
And they're nervous and they get it wrong. And then you put the wife on the stand and say, "When's your child's birthday?" And they rattle it off.
Pete Wright:
They know it right there.
Seth Nelson:
And you're like. "That's a different birthday than your husband testified to. Do you know why that is?" "Yes." "Why?" "He got it wrong."
Pete Wright:
"Because he's an idiot. Because we're getting a divorce."
Seth Nelson:
Right, right. And the crazy thing is they're twins. He didn't know, he gave two different days.
Pete Wright:
He gave two different birthdays. Okay, all right.
Seth Nelson:
So, listen to the rules. Don't ask questions of the lawyer. I don't know is a perfectly acceptable answer. Don't guess.
Pete Wright:
Okay.
Seth Nelson:
Okay? Also, and this is the art, not a science, of depositions is hopefully you're a good person, you love your kids, that love and fun needs to come out in court. When you start talking about, "Pete, what fun stuff do you like to do with your kids?"
Pete Wright:
My son is just taking up photography and I'm a photographer and I love taking him out and teaching him how to make photographs.
Seth Nelson:
And you lit up when you said that, your tone changed. You're still a little stiff, right? Because you're still in the formal setting, but when you get your clients to come out and you can see their personality and they're talking about their kids and taking photography and photos or whatever they do, and I've had the craziest answers and people are like, "I can't believe you said that in court." I'm like, "What's something fun that you and your child like to do?" "We have movie night and her favorite game is trying to throw popcorn into my mouth, and I'm really bad at catching it."
Pete Wright:
I have been covered in popcorn, and it's great.
Seth Nelson:
That's right, everyone's happy. And well, how does she make it where you get popcorn? And I know the answer, because he's told me the story. "Well, at the end she tells me to open my mouth and dumps the whole thing on my face." It's this fun little thing that they do. It's not an end all, be all, but it gets the emotions there that are positive. It's a formal setting, but it's family law court. You're not in front of the United States Supreme Court.
Pete Wright:
Right.
Seth Nelson:
Right?
Pete Wright:
Well, and you said something earlier that really rang true to me, which is this idea of that your job is to tell, is to get the stories out. And family court, the warmth of family stories I imagine are central to timesharing.
Seth Nelson:
And the beauty of this, if you guys are already separated and we're talking about things that happened in your house with you and your child, you can't say what she says, because that's hearsay. We're not going to get into that. But you can say what she did, her emotions, this. "What did she do when she ... What do you do?" "Well, she tries to throw popcorn into my mouth." "And is it successful?" "One out of 100." "Really? Do you keep count of that?" "Yes, we count them out. We keep a little scorecard." Okay. "And what happens if you don't get one out of 100?" "Then she dumps it on my face." Okay, nobody in court can bring in any evidence to contradict that.
Pete Wright:
Question, may I please, the court?
Seth Nelson:
Yeah.
Pete Wright:
You said I can't say anything about what she said, referring to my daughter at the time, because that's hearsay. I need to understand that, because describing behavior seems to me to be the same thing as describing what I heard her say?
Seth Nelson:
Oh, very, very nuanced question. Great question. You are allowed to describe what you see. You're not allowed to say in court what someone else said.
Pete Wright:
Why not?
Seth Nelson:
Because hearsay is a technical, legal definition. Is an out-of-court statement offered in court to prove the truth of the matter asserted. Okay, what's that mean? Well, one, let's take the popcorn example. She says, "Dad." What did your daughter say? "I want to throw popcorn in your mouth." Okay, it's an out-of-court statement. You weren't in the courtroom when she said it. You're now in court, you're offering it to the judge to hear to prove that she really wanted to throw popcorn in your mouth. That is textbook hearsay. It's not allowed. And the reason it's not allowed is it's generally not considered credible evidence.
Pete Wright:
But me describing what she did is credible evidence?
Seth Nelson:
It is if the judge believes you. But yes, anybody can look at your observations. They're not allowed to say what other people say. There's always exceptions to this rule, and I always joke that hearsay defines itself by the exceptions. For example, a bank statement is hearsay. It's an out-of-court statement literally on paper that's being offered into court to show how much is in the account.
Pete Wright:
But that's accepted?
Seth Nelson:
If it falls under the exception. And the exception is, it's a business record. And generally speaking business records are deemed correct, right? You go to the bank, you print out your statement, you're like, "Yeah, that's right." There could be a mistake and you could point it out. But generally that's right. And well, okay, we got that. But is it authentic? Yes, we go get the banker to say, "This is really our records." Okay? So, is it relevant? Yes. So relevant, authentic. We're off on the what's called evidence stool, three-leg stool.
Pete Wright:
Let's say because we're a fun, frolicking family that my daughter at the time also happened to take out her phone and take a video of her throwing popcorn at my face. And we have her saying, "Hey dad, I want to throw popcorn to your face." And then she throws a popcorn in my face, that I can admit that, we can get that in. And now it's not hearsay anymore.
Seth Nelson:
That's correct, because you're bringing in the video. Is not you saying it, the video is. And there's certain rules on how you authenticate a video. That's correct, okay. Now, these are very good questions, but not what I want my client doing in a depo.
Pete Wright:
Okay.
Seth Nelson:
Right, I don't want them to think that's hearsay. You can't be asking that, okay?
Pete Wright:
But you can understand why I'm thinking it?
Seth Nelson:
100%, 100%, great question. Very nuanced. Great question. And we can have a whole thing on evidence, which will definitely put people to sleep if they're listening to this. But the point of that is, I want you to be just focused on your job, and your job is to answer the question. And you don't have to worry about where they're leading you or what they're doing, it's my job to clean it up later. The other thing is, if you're being deposed, the, in your case, wife's counsel would ask you questions, when they're done, I, as your lawyer am allowed to ask you questions. And then when I'm done, the other lawyer's allowed to ask you questions again, and then we're done.
Pete Wright:
Okay.
Seth Nelson:
Very rarely do I ask questions at the end of the depo when you get done being deposed the first time. I'm like, they're done with their questions, I say, "No questions, we're done." I'm not giving them a second bite of the apple.
Pete Wright:
You don't want them to have the last word, really?
Seth Nelson:
Yeah. Well, she still has the last word, because I ask no questions. But I'm not giving them a second bite of the apple. In trial it's a whole different thing.
Pete Wright:
Okay.
Seth Nelson:
Any questions?
Pete Wright:
For me now?
Seth Nelson:
Yeah.
Pete Wright:
Or am I in trial?
Seth Nelson:
Yeah, for you.
Pete Wright:
Oh, I thought we were back in trial.
Seth Nelson:
No, no, no. Any questions for your lawyer on depo prep?
Pete Wright:
I feel like what this exposes for me is that I think we need to have another conversation about taking the stand and how the rules change, for me. Or do they, and in what way? And what do you want me thinking about? Because this, I feel like you gave me a very clear set of rules. Listen to the question. If I understand the question, answer the question in as few words possible.
Seth Nelson:
Think about the question.
Pete Wright:
Think about the question.
Seth Nelson:
Yeah, think about it. And the reason for that, you should think about it anyway. But it also gives your lawyer an opportunity to go through, there's a Rolodex of objections. Because once you answer, I can't bring my objection, it has to be right away. That's why you think about your question for just a minute.
Pete Wright:
Okay, and that's a really great tip. That's a really great tip why I have to think about the question. Okay, take a breath, think about the question. If I understand the question, answer in as few words as possible and then shut the fuck up.
Seth Nelson:
Same in court.
Pete Wright:
I mean, I think I screwed up almost every one of those examples today, but I do think I understand it better.
Seth Nelson:
Right, but now, if we go through it, you're not going to be as stressed about it. Because they're simple instructions. They're simple steps.
Pete Wright:
Yeah, it's simple, not easy.
Seth Nelson:
That's right.
Pete Wright:
Right? That's important.
Seth Nelson:
Unless you practice. Couple other things, and then we'll wrap it up. Use your child's name.
Pete Wright:
Okay.
Seth Nelson:
Don't say, "My kid." Right? And if you have to say, "Our kid," that's better than my kid. Because when you say, "My kid," judges will hear that as possessive. "It's my kid, not hers."
Pete Wright:
Right. Give the kid an identity that's unique to themselves.
Seth Nelson:
That's right. And it's hard, because we say my kid all the time.
Pete Wright:
Yeah, right.
Seth Nelson:
The other thing in trial, look at the judge.
Pete Wright:
Me?
Seth Nelson:
Yeah, whoever's on the witness stand. When you're answering, look at the judge.
Pete Wright:
Okay.
Seth Nelson:
That's who you're trying to persuade, right? If the judge is off to your right and you're looking straight at the lawyer and you're talking about how much you love your kid, why don't you look at the judge? Let him see it.
Pete Wright:
Yeah. You do a lot of Zoom trials. Is there a recommendation to give yourself a look at the judge vibe when you're on Zoom?
Seth Nelson:
No. That judge has got you pegged on Zoom. We haven't had as many recently, but all good questions. So, check with your local lawyer in your jurisdiction. If you have depos coming up, trial, ask them for prep.
Pete Wright:
Okay.
Seth Nelson:
Say, "How do I answer these questions? What questions do you expect that I will be asked?" Sometimes we role play it where we'll have a lawyer come in and ask you questions and then the other lawyer is going to do cross and really try to hit you hard, okay? Because we try to formulate, "Hey, what's the other side going to do? How are we going to be prepared?"
Pete Wright:
Yeah. It goes back to debate prep, man. It's op prep, that's it. What do you recommend, the day before, the week before? How much time do you give for prep?
Seth Nelson:
Oh, no, no, I don't like to do it too early. So, a week or two before, depending on the complexity of it. Sometimes a month before and then we revisit it. But you can tell it's at least more than one session, depending.
Pete Wright:
Yeah. No, I totally get that. No, this is fascinating. I'm glad we did this. This is certainly helpful for me. And I didn't get to say objection once, but now I know what objection hearsay means, and I'm very excited to use that.
Seth Nelson:
That's right. And well, you know that I have teenage kids. Some of them are older, in their 20s now, the youngest sometimes around the dinner table or we're just walking around, his mother will ask him a question and he'll say, "Objection, relevance."
Pete Wright:
Noted, noted.
Seth Nelson:
And my favorite objection that he says is, "Objection. You're on a need-to-know basis."
Pete Wright:
Sustained. Outstanding, this was good. This was good, Seth, this is useful. I hope a lot of people get something out of this experience.
Seth Nelson:
Yep.
Pete Wright:
Yep. Go through it.
Seth Nelson:
Sounds good.
Pete Wright:
Thank you everybody for downloading and listening to the show.
Seth Nelson:
And Pete, you have something else?
Pete Wright:
Yeah.
Seth Nelson:
Before we close out, you're a very good client.
Pete Wright:
Oh, thank you.
Seth Nelson:
There you go.
Pete Wright:
That means the world. All right. Thank you everybody for downloading and listening. You're a very good audience, and we sure appreciate your time and your attention. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next week right here on How to Split a Toaster, a Divorce Podcast about saving your relationships.
Outro:
How to Split A Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson, music by T. Bless & the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
