The Hot Seat: Mastering Your Divorce Deposition • Your Divorce Case
The Art of Divorce Depositions: Strategy, Preparation, and Success
In this episode of the season-long "Your Divorce Case" series, Seth and Pete tackle one of the most crucial elements of divorce proceedings: depositions. As Seth notes, depositions are where cases can be won or lost, making this episode essential listening for anyone facing divorce proceedings.
The discussion reveals the strategic chess game that unfolds during depositions, from how attorneys prepare their clients to the careful dance of questions and answers. Seth shares insights from his years of experience, explaining why depositions are his favorite part of legal proceedings and how proper preparation can make all the difference. The episode covers everything from the basic structure of a deposition to advanced techniques for handling difficult questions, all while emphasizing the importance of authenticity and honesty in your responses.
Questions we answer in this episode:
What rules should I follow when answering deposition questions?
How do attorney objections work during a deposition?
What rights do I have if questioning becomes hostile?
Key Takeaways:
Listen carefully and only answer exactly what's asked
Take your time reviewing documents
Stay authentic - don't try to outsmart the process
This episode provides invaluable insights for anyone facing a deposition, offering both practical guidance and strategic understanding. Seth's enthusiasm for the deposition process, combined with real-world examples, makes complex legal concepts accessible and actionable for listeners.
Links & Notes
Got a question you want to ask on the show? Click here!
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Pete Wright:
Welcome to How to Split a Toaster, A Divorce Podcast About Saving Your Relationships, from True Story FM. Today, it's time for your toaster to give a statement.
Seth Nelson:
Welcome to the show, everyone. I'm Seth Nelson. As always, I'm here with my good friend Pete Wright. Pete?
Pete Wright:
Yes.
Seth Nelson:
We are going to discuss one of my favorite topics, and where cases can be won and lost.
Pete Wright:
It gives me chills to talk about this process, because you love it so much.
Seth Nelson:
This is one of the most favorite things that I do.
Pete Wright:
And that is the deposition process.
Seth Nelson:
The deposition. It's awesome.
Pete Wright:
Okay, Seth. To get us up to speed on what a deposition is, I know all about depositions, but for listeners who don't. Walk us through what happens, what is the purpose, and what happens during a divorce deposition?
Seth Nelson:
Great way to start. So let's remind everybody what it is. It is where a person, whether it's a party, you going through the divorce process, or your spouse, or a paternity case, the father or the mother have to sit in a room across the table from the other lawyer. And there's a court reporter there, the stenographer that you see in the TV, in the movies. And they take down everything that is said. Now, this can happen for parties, it can happen for witnesses, and it is actual testimony that literally can be brought into court.
Pete Wright:
But a judge is not there.
Seth Nelson:
A judge will not be at the deposition, that is correct. This is part of the broad brush stroke called discovery. And discovery is where you're finding out information about a case. And there's oral discovery, such as depositions. There's written discovery, which can be interrogatories, which are written questions that you have to write answers to and swear by them. There's requests for admissions, where you just say, "Hey, is this fact true or false?" Just to try to limit the facts that you have to prove in court. Those are fairly simple. And then there's production of documents, that's other written discovery that you find. Bank statements, tax returns, accounting statements, what may be. Okay? But deposition is an art, not a science, and it is literally my favorite thing.
Pete Wright:
Okay. Why is it your favorite thing?
Seth Nelson:
Because cases can be won and lost at deposition, and we pride ourselves, and I pride myself, on really preparing my clients for depositions. And we go through a series, which we've done on the show, but we're going to practice them and go through again, because they're so important. Of having me explain what's supposed to happen at deposition. Because you can really help your case, in a deposition, if you follow the rules. And you can really hurt your case if you don't. And this is where you have agency. People are freaked out about it. They get all stressed out about it, but we prepare, prepare, prepare.
Pete Wright:
Okay. So you said, who's typically present at a deposition?
Seth Nelson:
Me, my client, if they're being deposed. The other lawyer, the other client, and the court reporter.
Pete Wright:
So this is not like a mediation where they're in separate rooms, the opposing clients are staring at each other?
Seth Nelson:
No, we are sitting across the table from each other.
Pete Wright:
Okay. And in terms of the process, do you just have to sit and listen to your soon-to-be former spouse air their grievances, in a deposition? Do they just get sort of free rein to tell their story? Or do you as an attorney get to jump in and say, "Objection"? How does that work?
Seth Nelson:
It is questions and answers. So it's not a dialogue, it's not a conversation, it's not a monologue. It's a question and an answer. Another question, another answer. And yes, if the lawyer is wise, they will object. And there are two ways to object in a deposition. The first one, which is the way that I do it, is you just say, "Objection to form." That's it. I just say, "Objection to form."
Pete Wright:
And that's objecting to what, how the other attorney asked a question?
Seth Nelson:
The form of the question.
Pete Wright:
Okay.
Seth Nelson:
So here is an example. I'm representing you, and the other lawyer says, "Mr. Wright, when did you stop beating your wife?" "Objection to form."
Pete Wright:
Okay.
Seth Nelson:
Right?
Pete Wright:
Got it.
Seth Nelson:
And if the lawyer asks me, "Well, what's the legal objection to the form?" I don't play the game, and don't tell them. I say, "Objection assumes facts not in evidence," because there was no fact that you ever beat your wife.
Pete Wright:
Right.
Seth Nelson:
But I would say, "Objection to form," and I would look at you and I would say, "Answer the question if you can."
Pete Wright:
Okay.
Seth Nelson:
Then you're going to say, "I can't answer the question." Then the lawyer is going to say, "Why can't you answer the question?" And then you're going to say, "I never beat my wife."
Pete Wright:
Right. Right.
Seth Nelson:
Now, some depositions, I will ask the lawyer if they intend to use this deposition at trial, in replacement of the witness actually appearing at trial. Which means the witness can be a hundred miles away, out of the jurisdiction, they might be on their deathbed. Now I'm getting, just crazy things that might happen, though. And if they do, then I will ask the lawyer, "Do you want me to object to form? Or I will place on the record," and sometimes I just do it on the record, "every single objection to the question that I can think of."
So they might say a question, "Isn't it true that the teacher said X?" And I would say, "Objection to form, including but not limited to leading. Relevance. Hearsay. Vague." I mean, I'm just going to list every single objection I can think of off the top of my head.
Pete Wright:
And this is because, if the witness is not called directly, but they use the deposition in place of, you have to be heard on the record just as everybody else is hearing it-
Seth Nelson:
That's right.
Pete Wright:
... that you had objections to that part of the deposition.
Seth Nelson:
And then, at the hearing the judge will say, "Mr. Nelson, what's your objection?" I'll be like, "Judge, I included all those, plus I have some others." And then the judge has to rule on every single one of those objections before the answer would come into evidence.
Pete Wright:
At what point do you choose, I feel like we're getting a little bit off the beaten path here, but I'm really curious about this. At what point do you choose, strategically, to use a recorded deposition in place of a live person? Why does that make sense?
Seth Nelson:
There's rules about it. So it wouldn't be a recorded one, necessarily. You can video record them, which I've done before, and you can play it. You can submit the depo into evidence, which is the least persuasive. You can go to a college campus, and hire a acting student in the fine arts. And say, "I want you to play a witness at a trial, and sit there and read the deposition."
Pete Wright:
What? What is happening right now? Are you making that up?
Seth Nelson:
I am not making it up. You are allowed to bring anybody you want to sit in the witness stand and play the part of the person, if you want to read the transcript in.
Pete Wright:
That's incredible.
Seth Nelson:
Yeah.
Pete Wright:
I mean, why have I never been asked to do this, one? Two, is there a job board for that?
Seth Nelson:
One, because you're not Mrs. Doubtfire.
Pete Wright:
That is an incredible bit of legal trivia that I did not know, nor would ever have expected.
Seth Nelson:
Yeah, because you're allowed to just submit it. But it's not persuasive when a judge just reads it. Right? Now, they're not judging the credibility, but at least you can liven it up a little bit. Right?
Pete Wright:
Right, right. It's like a middle school presentation.
Seth Nelson:
Yeah. Yeah.
Pete Wright:
Okay. All right, so that's the presentation of the deposition, and why that's important. You said long ago that your clients never get their day in court. It sounds like they don't even get their day in deposition.
Seth Nelson:
No, because they never get to ask questions.
Pete Wright:
Yeah, they're on a leash.
Seth Nelson:
Yeah, right. And if I'm the one asking the questions, they get to ask me, "Oh, what about this? What about that?" We take breaks, and I'll say, "Well, did I cover everything that you thought, needed to cover?" And they'll be like, "Well, you didn't say about this. You didn't ask about that." I'm like, "Yeah, I didn't do that, strategically. I don't want to cover that now." And the reason I might not want to ask a question is, when you ask questions and you have a good lawyer on the other side, they're going to pick up your theme of your case.
Pete Wright:
Yes.
Seth Nelson:
Right? So that's why I like this. It's a little bit of playing chess, like, "How much do I want to show them?" And I have a whole bunch of documents that I have ready to go, to confront the witness with. Depending on the case, I might have a binder full of documents. And when I mean a binder fall, Pete, I mean three ring binders, baby.
Pete Wright:
Oh, yeah. You keep the binder business in business.
Seth Nelson:
Yes. I'm going to have a copy for the witness. I'm going to have a copy for the witness's lawyer. I'm going to have a copy for me. The witness cannot write on it. I give one as a courtesy to the lawyer, if they want to write on it. But the one that the witness goes with the court reporter, it becomes part of that transcript. So you got to have them.
So the reason why I'll have a lot is, I can just hammer home my point. Because remember, lawyers only know what their clients tell them, and what the other lawyer tells them, and what they find in discovery. Clients typically don't call their lawyers and tell them the stupid shit that they did in the case.
Pete Wright:
Okay.
Seth Nelson:
They call and bitch about the other side, stupid shit they did. So when you have a client that's saying, "I'm fighting for time, I want my 50-50, she's not giving it to me," going on and on and on and on and on. And then you say, "Sir, please review what's been previously marked as Petitioner's Exhibit Number One to your deposition." They review the document. "Do you recognize that document?" "Yes." "What is it?" "It's an email that I sent from myself to my ex-wife." Okay. "Would you please read the first line?"
And it says, "I'm having a really hard time right now, and trying to get back on my feet, and I'm really struggling. So would you please keep our son until June of next year," and it's January, "of June, for six months, because I think by then I'll have new employment and a better place for him to live." And the lawyer hasn't seen that. The lawyer's hearing his client saying, "I've been asking for 50-50, 50-50, 50-50." And now I have a document that says, "Look, I'm going through a hard time. Keep our kid. I think it's best for him."
It's actually not a bad email. It's actually him doing what's right by the kid. "I lost my job, I lost my place to live. I'm trying to find reasonable accommodations," doing everything you want a parent to do to put your kid first. To be like, "I'm not going to take time now." But then don't come to your lawyer and tell them, "I've been fighting for 50-50 this last six months."
Pete Wright:
Right. You're painting a hero story, and it turns out you already had the hero story.
Seth Nelson:
Right. You had the hero story. And so I'm going to use that, not to bash the guy. I might be talking the other side up. "Judge, he did the right thing. But he can't come in here and say my client is withholding time-sharing."
Pete Wright:
Yeah. He can't say both things.
Seth Nelson:
Right.
Pete Wright:
Yeah.
Seth Nelson:
And by the way, we're now another year down the road, it's been 18 months. He still has not gotten his act together, and that's why we're asking to change the time-sharing schedule. Right? So that's how that works. So you have to have those ready to go. Now I might have 40 of them, I might have 10 of them, I might have five. But I might only use one to get my point home.
And then I ask the question, "Did you ever ask her to keep the children again?" And if he says no-
Pete Wright:
Then you have a presentation to make. Yeah.
Seth Nelson:
... now I've got him in court, and I don't have to do it in a depo.
Pete Wright:
Okay.
Seth Nelson:
I can wait for it.
Pete Wright:
So I get how strategic the deposition process is. I get how you're using, you're essentially building the case around what you want the opposing counsel to know and not know, about what you're thinking about the case.
Seth Nelson:
That's correct.
Pete Wright:
Is there anything in the deposition process that's strictly or procedurally off limits? Is there anything you can't do, that your clients or opposing clients should not have to expect you to do?
Seth Nelson:
Yeah, so if the other party who's asking the question, whether it be a pro se person or an attorney, if they are consistently harassing my client, and asking about things that are not going to leave to the discoverability of admissible evidence, that's way off the mark. That is being asked for the whole purpose to try to fluster my client, or harass them, or berate them, any of those negative words. I'm very patient. I'll be like, "Objection, harassment. Argumentative." I'm instructing my client not to answer.
And I can do that. I can tell my client not to answer. My client's going to obviously take my advice. And then if they don't like that, they can go to court, and they can tell the judge, "Mr. Nelson instructed his client not to answer. And I'm asking the court to make them answer." And I'm happy to do that, because now you got to go to court and say, "Here's the question I asked." And if I'm instructing my client not to answer, I'm very confident I'm going to win that in court.
And if they continue to do that, or if they raise their voice, or if they're being belligerent or any of that. I will give fair warning over and over and over again, "For the record," it's not like it happens the first time and we walk out. And then I'll say, "This deposition is over, and we are now leaving." And they'll say, "You're not excused." I'll say, "I appreciate that, but I am concluding this deposition. My client and I are leaving." And I walk out the door. Now, they can go back to court and I can bring that transcript and say, "Judge, this is what we are dealing with. I'm not calling you on the phone at the moment-"
Pete Wright:
"But in the interests of my client's-
Seth Nelson:
Mental health.
Pete Wright:
... "mental health and safety, we chose to conclude the deposition." Pivot on that. How does attorney-client privilege work in a deposition? Presumably you know stuff that they've told you about their divorce process, and how do you handle that?
Seth Nelson:
Well, they don't get asked, and asked. I instruct them not to answer anything on attorney-client privilege.
Pete Wright:
So they know, they understand the whole scope, before the deposition.
Seth Nelson:
Yeah. And sometimes they'll ask a question and I'll say, "Objection to form. It calls for attorney-client privilege," and I'll instruct my client to answer as long as the answer is not based upon any attorney-client privilege.
So, by way of example. "Is it your understanding that there's a presumption in Florida of 50-50 timesharing?" "Objection to form. Calls for potential discussions of attorney-client privilege. If my client can answer that question without divulging any attorney-client privilege, go ahead and answer." So if they were listening to this podcast and they heard, "Hey, in Florida there's a presumption of 50-50 timesharing," they can say, "Yes."
Pete Wright:
"Sure, I heard about it on the Toaster."
Seth Nelson:
That's right. That's right. But if they're my client, and I tell them that in a consult, or in our meeting, then they say no. So the better question, which is objection foundation. "Have you ever heard from anywhere, other else than your lawyer, that there's a presumption of 50-50 timesharing?" "Yes." "Where from?" You got to lay that foundation, which a lot of lawyers miss.
Pete Wright:
And what that implies is, even though you and I might have had a conversation about the presumption of 50-50, and that may have been the first place I learned about it, was you in a privileged situation. I could also have heard about it elsewhere, and that's what I'm talking about.
Seth Nelson:
That's right. And then there's no attorney-client privilege there.
Pete Wright:
Okay. You have said repeatedly, heretofore in this conversation, that you prepare your clients diligently for their deposition. How do you prepare them for their deposition?
Seth Nelson:
We follow the rules, which we've covered before. So I know in our show notes, Andy will do this. He'll go back and do Preparing for Deposition. In fact, Pete, I put you on the stand to prepare for your deposition.
Pete Wright:
That was not very much fun.
Seth Nelson:
I loved it. But that's typically how depositions go.
Pete Wright:
Yeah, yeah.
Seth Nelson:
You have to really listen to the question. And I'm just going to go through the rules. We're not going to practice them, we'll put it in the show notes to listen to the other one. Really listen to the question. Then you need to think about the question. And if you understand it, that's the first decision point. You have to answer it honestly, in the least number of words as possible. And then, most everyone else in my office will tell people, "And then stop talking." I tell my clients, "Shut the fuck up," because I want them to really understand what I mean.
Pete Wright:
Yeah, yeah.
Seth Nelson:
Okay? So here's the example, very quickly, that you'll hear when you go to the show notes and listen to the other show on this. Is if they say, "What is your name?" The answer is, "Seth." That's an honest answer in the least number of words as possible.
Pete Wright:
Right.
Seth Nelson:
What most clients do is they'll say, "Seth Nelson." And I'll say, "Why did you answer that way?" "Well, that's my name." I said, "But it's not in the least number of words as possible." And I give this hypothetical that you're at a bar, and this member of the opposite sex that you're attracted to, comes up and says, "You have the most stunning eyes, and you smile, and it lights up. And this isn't a line, I just think you're amazing, and I would really like to take you and your friends on a trip to New York this weekend on my private jet. My name is Steve. What is your name?" You're not going to give your full name. Right?
Pete Wright:
Right, right.
Seth Nelson:
And the reason I give that silly example is it puts them in a casual setting at a bar, but people answer formally, because they think they're in court. And they are in court, or they're in a deposition, but nowhere do I say, "Answer formally." I just say, "Answer in the least number of words as possible."
The other thing is, it's not a conversation, it's an interview. You don't respond to statements.
Pete Wright:
Okay. That's an important thing to say again, and give an example. Because I naturally, again, under pressure, stress, you respond to everything.
Seth Nelson:
That's right. And people don't like silence. So the person taking the deposition might say, "You work a full-time job." That's a statement.
Pete Wright:
Just shut up.
Seth Nelson:
Yeah.
Pete Wright:
Okay.
Seth Nelson:
Don't say anything. Now, they might say it like this, "You work a full-time job." It rises at the end, it sounds like a question. And my clients know, do not respond. And if the lawyer says, "Well, are you going to answer that?" I'll say, "Objection. It was a statement, not a question." And then they get annoyed.
Pete Wright:
Well, what I hunch is, they're going to say, "This witness is uncooperative." Right?
Seth Nelson:
Take it up with the court. Take it up with the judge.
Pete Wright:
Okay.
Seth Nelson:
So literally I'll say, "Objection, not a question. It was a statement. Counsel is testifying." Then they'll say, "Isn't it true that you work a full-time job?" "Objection to form." Because now, it's leading. Right? Then they'll say, "Do you work a full-time job?" And then, I'll sit quietly.
Pete Wright:
Then you can say yes. Yeah, right.
Seth Nelson:
And I'll say, "Yeah, I do. Oh, you're not talking to me."
Pete Wright:
Could be, whatever. Yeah. All right.
Seth Nelson:
And the reason why that's important is, the only people that are really used to being in interviews are famous people. Sports figures, actors, actresses, and politicians. And politicians are terrible at depos, because they never answer the question that's asked. Right?
Pete Wright:
Right. They answer, in full, a different question.
Seth Nelson:
That's right. But that's kind of the key, there, is do not respond to statements. And I say, "Be happy if there's a long pause, if there's a pregnant pause, if there's a silence. Get comfortable. Because they only have four hours," or eight hours, or whatever the case may be, "to take your deposition. And if they're not saying anything, you shouldn't help them."
Pete Wright:
Okay. Is there a limit to just how much coaching you can do to your client? For your client?
Seth Nelson:
Yeah, so I prepare them, I don't coach them. And the difference is, coaching can be a defined term. I can never tell my client what to say. "I think they're going to ask you this. You need to answer it this way." No. That's not what I do.
I sit down and I go through the questions that I'm going to ask in the deposition, and I do this with my client because I want to prepare, to understand their information that they're giving me in their case. And I write it down. And then sometimes I'll say, "Okay, I just asked you this question about your case." And this is early on, it's not even preparing them for a depo. This is me understanding the case. And I'll write it down and I'll say, "I just asked you what are your kids, your eldest child's favorite things to do? And you said this, this, and this. Did I get that right?" And they'll be like, "Yeah." Okay. Well, then I'll be like, "Is there anything else?" And they'll be like, "This, this, and this." And then I'll be like, "Well, explain the third one you told me. Can you give me more information on that?"
And they do it, and I'm writing it down in my notes, because I'm going to ultimately present this in court and I need to know. But that's just practicing the deposition, but we're not saying we're practicing the deposition. I'm just getting information, and I'm repeating it back to make sure I understand it. But I'm never telling them, "You need to say it this way," or... No, that's not, you got to be yourself up there. You can be somebody else. You cannot think, "What would Seth want me to answer?" Now, I prepare my clients so much, they're on the stand and if they're not following the rules of just, "Listen to the question, think about the question, answer it honestly in the least number of words as possible, and shut the fuck up," they'll get off the stand after they're done and released by the court. And they'll be like, "I know you're going to kill me. I was hearing you tell me those rules, but I just couldn't help it." And I'm like, "I know."
Pete Wright:
That happens.
Seth Nelson:
"You do it at your peril, though."
Pete Wright:
Yeah, right. I mean, you've been doing this a long time. You said that there's a court transcriptionist in the room.
Seth Nelson:
Yeah, a court reporter.
Pete Wright:
A court reporter, taking live notes. What other technology would I expect? I mean, can I assume it's being recorded or videoed, standard? Or is that...
Seth Nelson:
Well, it's a great question. It's always being recorded. The court reporter has a mic and a recorder. But the really good court reporters have a steno machine, and you'll see them typing. It's not like a keyboard, where there's letters. They're not spelling things out. Everything they do is by different sounds that we make, and that's how they do it. And then, they have the recording to back it up if they need to check it. And then if you order the transcript, which you're not required to do, but if you order it, then they're going to transcribe it. And they put it into a machine, and then they go back, and... This is where it's an art, not a science. They will put in all the punctuation. And punctuation can change the meaning of a sentence, right?
Pete Wright:
Yeah.
Seth Nelson:
My favorite things are eating, my grandfather, and popcorn. Is it eating, comma, my grandfather and popcorn? Or is it eating my grandfather and popcorn?
Pete Wright:
Yeah.
Seth Nelson:
Right?
Pete Wright:
Right. The reason I think that's interesting is because of just the way recording technology has changed, and what influence it can potentially have on the court process. So it sounds like you don't, as a member present at the deposition, you don't automatically get a copy of the deposition. You have to pay for it, order it.
Seth Nelson:
You've got to pay for it.
Pete Wright:
And do you have any recourse to record it yourself, if you just wanted to put your phone on the table?
Seth Nelson:
No. It's not, it doesn't matter. It's not going to be admissible in court. There's a lot of ways to keep that out. There's only one official transcript of your depo, and that's by the court reporter. And I would argue that would come out. There's all this sort of technology, and AI is like, the court reporters are freaking out about AI.
Pete Wright:
I'll bet they are.
Seth Nelson:
So. Here's the other thing about your depot is, you need to talk to your lawyer well in advance of your deposition, to practice, to understand. And the other thing that you can do in your depo, and this is why you got to talk to your lawyer. Is to understand the theme of your case. Because whenever you get stuck, you just go back to your theme.
Pete Wright:
What do you mean by theme? Isn't my theme to start married and end divorced?
Seth Nelson:
Yeah. Well, that's why I tell my uncle who's a doctor, "I've never lost a divorce case. They came to me, they wanted to be single again. I got them single. They don't have their children or any money, but I got them to be single again."
Pete Wright:
"But they are single." Okay.
Seth Nelson:
Right. So what I mean by that is, "What do you think the best parenting plan should be in this case?" "Well, I think that Dad should only have the children every other weekend." "Well, that's a very limited schedule," they say, the lawyer. Who shouldn't be saying that, because he's now testifying, but he goes, "That's a very limited schedule. Why do you think he should only have that time?" That's the ultimate question he's going to ask.
But I'm going to back up, because he's going to start with this. "How would you classify this father as a father, as a parent?" "He's a good parent." "Does he love the children?" "Yes." "When he's in town, does he care for the children?" "Absolutely." "Does he show up to the kids sporting events?" "Sometimes." Notice that. One word answer. "Sometimes." "Well, when does he show up?" "When he's in town." See? It's like pulling teeth, here. Right?
Pete Wright:
Right. It's awful.
Seth Nelson:
Right, right. But you're not giving this lawyer anything. And then ultimately they say, "Well, why every other weekend?" "Because that's the only time he's in town." Right?
Pete Wright:
Yeah.
Seth Nelson:
"Well, what leads you to that conclusion?" "He's an international airline pilot."
Pete Wright:
He's stationed abroad.
Seth Nelson:
Right. He does international trips, at a week or two at a time, but he's consistently home every other weekend. And he's a great dad when he's home. But he loves his profession, he's not changing his profession. He provides, he does all these things. And you don't go and say, "It's because he's an international airline pilot, and he's had affairs all over the world."
Pete Wright:
Right, right. "There are like 60 children we're not mentioning."
Seth Nelson:
That's right. But the court only has jurisdiction over these kids.
Pete Wright:
This one. Right.
Seth Nelson:
Right. So you just don't have to do that. But you see how, when I was answering those questions, I wasn't being combative, I was being straightforward. But, "Sometimes. When he's in town." You don't have to explain. You don't have to explain. That's what your lawyer's there to do, to clean it up later.
Pete Wright:
Okay. What are we looking at in terms of ethical considerations in the deposition process? When do attorneys, what are you watching out for, for attorneys who go south?
Seth Nelson:
Oh, I am... My colleagues. It's not uncommon for them to say, "Yeah, Seth does that all the time. He always objects." I will constantly object if I don't think it's a proper question, because I am going to protect that record. Because I don't know what my client's going to say.
Pete Wright:
Well, and you just said something important. It seems like the theme of the deposition is protect the record. Right? That seems like a mission.
Seth Nelson:
Well, that's what the lawyer needs to do.
Pete Wright:
Yeah.
Seth Nelson:
That's what the lawyer needs to do. But for the theme of that hypothetical I gave you is, good dad, just, his job keeps him away.
Pete Wright:
Yes.
Seth Nelson:
So I would just keep coming back to that. Right?
Pete Wright:
So object a lot. Protect the record.
Seth Nelson:
Protect the record. And this is for any witness, you're allowed to... It's not just your client for any witness. Because some lawyers will be like, "Well, they're doing so well," but you don't know what they're going to say next. You don't know. I don't know what my client's going to say. I haven't scripted this for them. So you really need to protect the record.
And a lot of protecting the record is just, they'll ask, people ask compound questions. They'll have an and, in the question, a conjunction. It puts it, so are you answering yes to the first part, or the second part? I don't know.
Pete Wright:
It sullies the record. I get it.
Seth Nelson:
So as the witness, the other thing is, just follow the rules. Don't think you're the smartest person in the room. You might be the smartest person in the room, but it's your first depo. So I don't care how smart you are. You haven't done this before. You're going to make mistakes if you don't follow the rules. Don't worry about where you think the lawyer is taking you, down this path. Answer the question asked honestly, in the least amount of words as possible, shut the fuck up.
Pete Wright:
Got it.
Seth Nelson:
Just follow the rules.
Pete Wright:
Okay. What else? We've talked about our preparation, we've talked about the strategic considerations of using depositions to help build and craft the case, we've talked about the process. Is there anything unique in Florida that Florida is different, potentially, when conducting depositions?
Seth Nelson:
No. No, it's all basically the same. I mean, I'm only licensed in Florida, and I haven't taken depositions elsewhere. I mean, I have, for Florida cases in different jurisdictions, I've traveled to do that. But the thing I would also tell you, if you're given a document to review, take your time and review it. Don't just assume that you know what it is. If it's five pages, and you want to read all five pages, read all five pages. There's no clock ticking when it's a non-video deposition. There's a question, and there's an answer. The court reporter doesn't record how much time between the question and the answer.
Pete Wright:
Right. There's no court reporter commentary.
Seth Nelson:
No, not at all. Now, if it's a videotaped deposition, make sure... You should always be this way, presentable. Because that might be shown to the judge. Facial expressions, the whole deal. So yeah, take your time.
Pete Wright:
Rules of court apply, if it's a video deposition.
Seth Nelson:
They always apply. But, you know. Take your time, read it, make sure you understand it. Make sure you understand the question before you answer it. Make sure that you've taken any medication that you're supposed to take, and not any medication you're not supposed to take.
Pete Wright:
Okay.
Seth Nelson:
I mean, I've had someone take medication before, and I said, "Is there anything running through your bloodstream that would impact your ability to understand my questions and answer them honestly?" Which by the way, is a compound question, understand and answer. And they'll be like, "Yeah." "What did you take?" "Well, I've been having trouble sleeping."
Pete Wright:
"I took an edible about 45 minutes ago."
Seth Nelson:
Right. And I'm like, "Counsel, we'll continue this deposition." Right? Because you're done.
But understand that this is a skill, and it's not easy, and you need to practice. And you're never going to get the exact question that your lawyer prepped you for. And that's why when people say, "Do you tell your clients what to say?" No, because I don't know what the lawyer's going to ask. I know what I would ask, but even if we're asking the same question, we might be asking the same question differently. Right?
Pete Wright:
Yeah.
Seth Nelson:
So that's why you got to understand your case, and your theme, and how to do it. And here's the other thing. If you've made a mistake in the case, it takes all the wind out of the sails when you acknowledge that you've made a mistake. People try to lie, and get out of it. And, "No, that's not what I meant." What about, like, "Did you do X?" "Yes." If it's a good lawyer on the other side, and they got the yes, they should move the fuck on. But if they ask why, then you're going to be like, "I made a mistake." "What was the mistake?" "I should never talk to my co-parent that way." "Why did you do that?" "I was really upset." You stop. "I was really upset." Boom.
Pete Wright:
I can't tell if you're making an example or a non-example, here. All of that sounds authentic.
Seth Nelson:
Yeah.
Pete Wright:
Sounds like what I might want to hear, if I were a judge.
Seth Nelson:
Yeah. And let me tell you, but you can only do it if it is authentic. If it's not, if you don't think you made a mistake, you better not say it. Because it's not honest, and the judge is going to see right through it.
Pete Wright:
Yeah. There's the trick.
Seth Nelson:
There's the rub. That's why I don't tell clients what to say.
Pete Wright:
Yeah.
Seth Nelson:
Because it's not believable. It's got to come from inside. And that's the difference.
Pete Wright:
Okay. And that's depositions.
Seth Nelson:
In a nutshell.
Pete Wright:
That's what we've done. We have now outlined the deposition process, and I hope that gives folks some sense of what they're in for. Would you say that the deposition process is a scary process for a non-lawyer?
Seth Nelson:
Terrifying.
Pete Wright:
Okay. Then the bar is set at terrifying, it can only get better from there, with preparation.
Seth Nelson:
That's right. Get with your lawyer and say, "When is my deposition? How do we prepare?" And if they're not preparing you, you've got a problem.
Pete Wright:
Absolutely.
Seth Nelson:
Now, you think you're good at this now, you've heard all this stuff. Right, Pete?
Pete Wright:
I never said that. That would have been a lie. Oh, that's good.
Seth Nelson:
What's your favorite food?
Pete Wright:
Pizza.
Seth Nelson:
What's your favorite food for Thanksgiving?
Pete Wright:
Scallops.
Seth Nelson:
So now, here's the question, right? When I asked you originally, and this is just me prepping you. When I asked you what your favorite food was, you said pizza. But then when a specific holiday, it's scallops. So is pizza your favorite food on Thanksgiving?
Pete Wright:
Yes, it is, but I'm never allowed to eat it. Who would allow me to eat pizza on Thanksgiving?
Seth Nelson:
Maybe with some turkey on it.
Pete Wright:
Oh, my goodness. Okay. Well, this is illuminating, as always. And I don't know, I feel like you've tested me so many times, I still get caught. Favorite food on Thanksgiving.
I really enjoy these, and hope they give folks some things to think about. Don't forget, you can ask us a question, howtosplitatoaster.com. There is a button right there that says, "Submit a question." We've got two, two, I tell you, listener questions episodes coming up. And they're spread out a little bit, so if you don't get your question in this next round, that's fine. We've got one more coming up before the end of our season. But do get those questions in if you're interested. We are banking questions now.
Next week we're going to be talking about real estate appraisers. I look forward to that. It's going to be a humdinger.
Seth Nelson:
It's almost as bad as accountants. Don't tell our friend Kristen we said that.
Pete Wright:
My lips are sealed. All of this builds up to our end of season conversation around getting to trial. What does trial look like, feel like, experience? So we've got this, we've got some momentum, here. Got some momentum.
Seth Nelson:
Yeah, I know those questions are coming in, asking about it.
Pete Wright:
Yeah, for sure. So thank you everybody for your time and your attention, we appreciate you listening to the show. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll catch 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 True Story FM Podcast Network, produced by Andy Nelson, music by T Bless & the Professionals, and DB Studios. Seth Nelson is an attorney with NLG Divorce and 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 and Family Law. Seth Nelson is licensed to practice law in Florida.
