To testify means to bear witness.
When you testify, you are a witness to the facts and circumstances of the matter at hand, and you answer questions put to you by your lawyer and your spouse’s lawyer. And when you testify, you are asked to speak the truth, under oath, to the best of your knowledge and ability.
Public speaking usually isn’t at the top of anyone’s fun list. And testifying in a deposition or in court is a unique type of public speaking. The prospect of testifying sets most people on edge. But you needn’t worry. Assuming your lawyer is worth his or her salt, you’ll be prepared.
At heart, the purpose of a deposition is simple: to gather information.
A deposition takes place outside of the courtroom, typically in the lawyers’ offices, and is very much like a Q&A – a formal Q&A with lawyers and a court reporter who will transcribe the entire session – but a Q&A nonetheless.
In a deposition, the opposing lawyer will ask a series of questions about you and the case. These questions can be quite wide-ranging (depending on the situation), starting from where you stashed your investment funds to what you had for breakfast. Almost anything and everything is fair game, although the questions must generally be relevant to the matter at hand.
In a divorce case involving asset division, for example, opposing counsel may ask whether you have any undisclosed investment accounts. In a child custody matter, opposing counsel may ask what you and your child typically have for breakfast when you’re playing the role of short-order cook. Admittedly, questions about breakfast are rare; questions about investment accounts far less so. But the point: A deposition is a time for information gathering.
And if you’ve taken the confidentiality of attorney-client privilege to heart, your attorney will already know to anticipate the “bad stuff” that might come to light in a deposition.
Preparing to testify in court
Testifying in court is a whole other matter, at least in terms of formality, with the judge and your spouse or partner present in the courtroom. As in a deposition, you are under oath, and are obliged to tell the truth to the best of your knowledge and ability.
But the questions themselves will be structured differently and the scope of questioning will often be more limited – as compared to the “free-ranging” nature of a deposition. For example, opposing counsel may ask a series of yes-or-no questions, and you’ll find yourself obliged to answer just yes or no, even if you’d prefer to elaborate.
Despite the differences, the purpose of testifying in court is much the same as in a deposition: to gather information about the facts and introduce these facts as evidence. (Some of the facts uncovered in depositions can also be introduced in court.) The judge then weighs this evidence to make a decision.
At this stage, the goal is to get as close to the truth as possible – in light of the parties’ separate viewpoints and perspectives – so the judge can determine who gets what and how, even if it often means ordering the parties back to mediation for settlement.
Moral of the story
The prospect of testifying causes most people a great degree of stress, just as divorce itself causes stress, even though life gets better after it’s done. The key is a bit of knowledge and a bit of preparation. As they say, that can go a long way.