As time passes after a divorce, it’s common for child custody plans to stop being as convenient – and appropriate–as they once were. Children grow up. They become teenagers with lives of their own. Sometimes parents move away. Other times, their situations change and they can’t parent the way they once did. If your existing child custody plan has stopped working for your family, you are not stuck with it. Texas family law allows for modification of existing child custody plans. Here’s what you should know.
If Both Parents Agree, Things Are Easier
As with most parenting decisions, things are easier if both parents agree that the child custody order should be modified. When parents agree, all they need to do is submit a proposed custody order to the court. In most cases, the court reviews the proposed custody order and approves it.
Unfortunately, life is rarely that simple. If parents disagree about the change, they must both appear in court to have the order modified.
You Must Show a Significant Change in Circumstances
In order to grant a child custody modification, Texas family courts require you to show that a material and substantial change in circumstances has occurred. You must prove that the change in circumstances makes your current arrangement inappropriate or unworkable, as well as that the proposed change is in the child’s best interests. If you request the modification, that burden of proof rests with you.
What does “material and substantial in circumstances” mean? It depends on your case. Many different changes can qualify.
Texas courts have granted a modification when doctors diagnosed a child with a health issue that meant his parents needed to care for him differently.
They have also granted modifications when one parent was unable to find significant employment in Texas and was forced to relocate for work.
Courts have also granted modifications when a parent struggled with substance abuse and was no longer able to care for a child safely.
Older Children Have Some Say in the Matter
Texas law makes a distinction between children younger than 12 and children who are 12 years old and older. When a child is 12 and wishes to change the primary caregiver, courts may grant the modification. It’s likely that the judge will want to talk privately with the child, and the request will only be granted if the judge believes it’s in the child’s best interests.
Talking With a Lawyer Is a Good Idea
If your family’s needs have changed and an existing child custody plan is no longer working for you, talking with an attorney is a good first step. At the Schneider Law Firm, P.C., we can talk with you confidentially about your situation and help you take the best course of action. Call our Arlington law office at 817-799-7125 to get started.
Most people who divorce have never done it before and didn’t expect to ever go through it. They have no idea what to expect. If you are considering a divorce or have been served with divorce papers, here are some basics you should know from the lawyers at the Schneider Law Firm, P.C., in Ft. Worth.
1. There Must Be Grounds for Divorce in Texas
Texas isn’t a “no-fault” divorce state. That means that in order to get a divorce in Texas, there must be a reason (“grounds for divorce”). The reason can include things like adultery, abandonment or conviction of a felony. Most divorces cite “insupportability” as the reason, which means that the marriage cannot continue due to conflicting personalities.
2. Contested vs. Uncontested Divorce
Divorces come in two types: contested and uncontested. Many people think that they have an uncontested divorce because they generally get along with their spouses. However, the definition is stricter. To have an uncontested divorce, you and your spouse must agree on every issue in the divorce. Otherwise, you have a contested divorce. Sometimes, divorces that start as uncontested divorces end as contested ones.
3. You’ll Need to Resolve Four Major issues
Each divorce is different, and not all divorces involve children. Generally speaking, though, there are four major issues to consider in a Texas divorce:
Child custody: Texas courts divide child custody into conservatorship and possession/access. Conservatorship is the ability to make major decisions about the child’s life. Possession/access is where the child lives.
Property division: There are two types of property in Texas: community property and separate property. Community property is things you and your spouse have collected during the marriage – like your savings accounts and real estate. Your debts are also considered. Community property is usually split 50/50.
Child support: Courts order child support according to a series of Texas Child Support Guidelines that consider several factors.
Alimony: Courts can sometimes order alimony for a limited time when the receiving spouse is not able to earn enough income.
4. You Only Get One Chance to Do Your Divorce Right
It may sound harsh, but you only get one chance to decide the major issues of your divorce and make sure your interests are protected. It is possible to appeal a divorce in some cases, but it’s much easier to do things right the first time.
Talk with an attorney before making big decisions. Start by taking steps to get as much information as possible. Call the Arlington office of Schneider Law Firm, P.C., at 817-755-1852.
We at the Schneider Law firm understand the difficulties associated with shared custody agreements, especially for families that live in different states.
This insightful article from the New York Times addresses one of the many issues of interstate familial arrangements – child air travel. In its current state, the American Air Travel industry lacks a system designed to care for children unaccustomed to advocating for themselves. “Because there are no Transportation Department regulations regarding travel by unaccompanied minors, airlines create their own policies, beginning with who can fly, which is why experts emphasize the importance of educating children before they embark on a trip.”
Although many American carriers offer services for children designated solo fliers like select seats and airline escorts on and off the plane, and to connecting gates, there is no uniform system in place. While most airlines consider solo fliers from the ages of 5 to 15 as unaccompanied minors, the age limits and the additional fees associated with unaccompanied minors varies from carrier to carrier. Additionally, different fees and services may apply to multiple children traveling together. For example, children that travel together are usually promised a seat close to the front of the plane and airline agents will often escort minors to their seats, again when they deplane, and to connecting gates. Despite the services offered, not all flights are available to children traveling alone and many carriers limit younger children to nonstop or direct flights.
Parents of departing children with government-issued identification can obtain a pass that allows them to escort their child to the gate. The pass, which may be obtained at the check-in desk, may require them to stay at the airport until the plane has taken off, and most experts advise doing so in case the plane experiences a mechanical problem or delay and must return to the terminal. Likewise, most airlines will similarly issue a gate pass to the person designated to pick up the child, allowing the person to meet the child at the arrival gate.
Travel experts have recommended that parents prepare their children for flight as they would themselves, including sending them off with identification such as a birth certificate or a passport. Parents are also advised to pack a water bottle to fill after passing through security; some form of entertainment, like books or a tablet computer with an extra battery booster; a fleece or sweater for chilly flights; and food.
Experts also suggest that in the lead-up to the flight, parents should position it as an adventure to ease anxieties. Parents should involve their children in planning flights to make them feel empowered and excited. Finally, just because children can fly solo doesn’t mean all of them should.
If you have any questions or concerns as it pertains to [Texas Family Law], feel free to contact us at (817) 755-1852.
Maybe you’ve heard of a friend, a first time offender getting the opportunity to enroll in a program called DPP but what is it and could it be right for you?
What is Deferred Prosecution Program?
The Deferred Prosecution Program (DPP) allows for first time offenders of certain classes of crimes between the age 17 and 24 to complete the program over a period of time to allow the young adult, or juvenile some time to rehabilitate and move forward without the stigma of a criminal conviction. This opportunity has requirements to enroll and stay enrolled that need to be followed closely but for the young adult looking to live their life without a criminal conviction, it is an alternative to the traditional criminal legal process. Once successfully completed the DPP program results in those charges entered against that young adult being dismissed.
If you or young adult child has been charged with an offense for the first time and think you or your child may qualify for DPP, give the Schneider Law Firm a call to schedule a free 30 minute consult with one of our knowledgeable criminal defense attorneys.
How can you help yourself when you are charged with a crime and the way the police have the story isn’t what happened? Your best defense is a lawyer who walks-through the area where the crime allegedly occurred and how everything happened with the client.
The walk-through allows lawyers to later be able to set the scene for a jury to give them a window into your story and what happened during that time.
At the Schneider Law Firm, our team of criminal defense attorneys do walk-throughs on a variety of charges from indecent exposure to murder. If you need the help of a skilled team of trial lawyers ready to defend you and tell your story to the jury, call the Schneider Law Firm to schedule your free 30 minute consult.
Most folks don’t realize that after 3 years if there is at least a 20% or $100.00 difference between the guideline child support amount at the time the order was signed and the amount that would be awarded under guidelines in the present day, they can go through a child support review. This review is useful for both payers (“obligors”) and receivers (“obligees”) of child support.
If you receive child support and know the party paying child support received a raise, was promoted, or got a second job and it has been 3 years or more since the order was signed you can request a review. This review will help raise the child support in accordance with the other party’s new earnings. Unfortunately the child support office doesn’t automatically recalculate child support when someone gets a promotion or a second job but the review means you have the power to request a change for the support of your child.
If you are paying child support and you have a situation where you become unemployed or lose the job you had when the order was first signed and took a job that pays less the judge can assess the situation to see if the child support can be reduced. Though a review is not going to eliminate child support, even if you are unemployed. If you are considered able to work, judges will likely at least order child support in accordance with full-time minimum wage earnings. If you have special skills or degrees and the judge finds you to be intentionally underemployed, the judge may order child support in the amount in accordance with the person’s earning capacity. This helps ensure to make sure people who have the earning capacity to support their children do so.
Judges consider many factors when going through a review such as the person’s current job, earning capacity, the job market, and other children to name a few. It’s a good idea to contact a lawyer and discuss the options for filing a child support review and the likelihood of what will happen and how child support can be adjusted. If it has been 3 years or more since your last child support order was signed, schedule a free 30-minute consult with the attorneys at Schneider Law Firm and see what they can do for you.
You may have heard that divorces take years to sort and finalize. But if you and your spouse seem to have it all worked out, the fastest way to a divorce is through an agreed divorce also known as an uncontested divorce. Uncontested means you both agree on the division of assets and child custody.
From the date your attorney files the petition for divorce you must wait sixty days before the divorce can be finalized. In that time you and your spouse’s attorney can tailor a divorce decree to suit the way you both agree to split the assets and child custody. If for some reason this process brings up a disagreement on assets or custody that cannot easily be resolved or remedied, the divorce becomes contested and the judge gets involved in sorting out the matter. This is when divorces start to become lengthy drawn out processes. However, if you and your spouse know and agree on how you want everything divided, the process can be done relatively quickly.
Simple Agreed Divorce
In Texas there is no such thing as legally separated so if you and your spouse have agreed to part ways, the quickest legal method is an uncontested divorce. If you are considering an agreed divorce to fast track the split with your spouse, call Schneider Law Firm to set up your free 30-minute consult with one of our experienced divorce attorneys.
As a young lawyer I made MANY mistakes…still do if I’m being honest. One of the biggest mistakes I made was in how I conducted my cross examinations. Like an excited puppy waiting at the door, I would mentally work myself into a tizzy as I listened to the direct examination of opposing witnesses. The anticipation of attack would build in my head. The words “I pass the witness” coming from opposing counsel’s mouth were like the starting bell at the dog track. Unfortunately, like the greyhounds, I would seldom catch the rabbit.
Over time, I have come to learn that great cross examinations have similar attributes. Subtlety, focus, and control come to mind most frequently. Most importantly, great cross examinations require a plan to “box in” the witness with patient questioning so that the witness has nowhere to run when the haymakers are thrown.
Here is a great example of patient “boxing in” questioning from the timeless book The Art of Cross Examination (4th Edition) by Francis Wellman:
The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated. Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination.
Warren (placing his thumb over the seal and holding up the will). “I understand you to say you saw the testator sign this instrument?”
Witness. “I did.”
Warren. “And did you sign it at his request, as subscribing witness?’
Witness. “I did.”
Warren. “Was it sealed with red or black wax?”
Witness. “With red wax.”
Warren. “Did you see him seal it with red wax?”
Witness. “I did.”
Warren. “Where was the testator when he signed and sealed this will?”
Witness. “In his bed.”
Warren. “Pray, how long a piece of red wax did he use?”
Witness. “About three inches long.”
Warren. “And who gave the testator this piece of wax?”
Witness. “I did.”
Warren. “Where did you get it?”
Witness. “From the drawer of his desk.”
Warren. “How did he melt that piece of wax?”
Witness. “With a candle.”
Warren. “Where did the candle come from?”
Witness. “I got it out of a cupboard in the room.”
Warren. “How long should you say the candle was?”
Witness. “Perhaps four or five inches long.”
Warren. “Do you remember who lit the candle?”
Witness. “I did.”
Warren. “What did you light it with?”
Witness. “Why, with a match.”
Warren. “Where did you get the match?”
Witness. “On the mantel-shelf in the room.”
Here Mr. Warren paused, and fixing his eye upon the witness, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone:
Warren. “Now, sir, upon your solemn oath, you saw the testator sign this will he signed it in his bed at his request you signed it as a subscribing witness you saw him seal it. It was with red wax he sealed it a piece of wax about three inches long he lit the wax with a piece of candle which you procured from a cupboard you lit the candle with a match which you found on a mantel-shelf?”
Witness. “I did.”
Warren. “Once more, sir upon your solemn oath, you did?”
Witness. “I did.”
Warren. “My lord, you will observe this will is sealed with a wafer!”
The extreme patience illustrated in Wellman’s example was the key to “boxing in” the witness. Imagine the response the witness would have given had Mr. Warren barreled straight into his line of attack:
Mr. Warren: Sir, you said on direct that the will was signed and sealed with red wax.
Witness: Yes, sir.
Mr. Warren: Yet we see hear it actually is sealed with a wafer, correct?
Witness: You know, you are correct. The sealing was so unimportant I must have forgotten how it was done. I just remember us sitting around the table and he signed it and that was that.
The size of the wax stick, its location, where the matches were and who lit them all seem to be very trivial matters. So trivial, in fact, the witness saw no harm in fabricating the answers. He must have thought “Who would know?” But by building up the surrounding circumstances and committing the witness to a single precise version of events, Mr. Warren was able to “box in” his witness. How now could the witness claim that he merely forgot the type of seal when he just firmly committed with such great detail to the circumstances surrounding the sealing of the will?
Certainly such dramatic events such as the above illustration are few and far between in the daily practice of law. But the same technique can be used in depositions, family law temporary hearings, and evidentiary hearings in criminal cases.
Take, for example, a recent jury trial in which my client was accused of causing bodily injury to his wife. On the stand the complainant alleged that the entire matter started when my client punched her in the face unprovoked. Despite her contention that she had a bruise and redness under her eye for “days” after, the police report contained no mention of any marks to her face the night of the incident despite noting in great detail several abrasions on her arms. During the reporting officer’s direct testimony by the prosecution, he surprised me (and I think the prosecutor) by mentioning that he now remembers (some 15 months later) that there was, in fact, “red puffiness” under the complainant’s eye the night of the alleged incident that looked like she had been hit.
Here is how we were able to “box in” the officer and show that his sudden recollection was less than credible:
Defense: Officer, you said you have been with the force for seven years?
Defense: And before that you were in the academy?
Defense: And like any school the police academy has interesting parts and not interesting parts, correct?
Officer: That’s true.
Defense: And for all the time you spent shooting guns and practicing defense techniques you spent twice as much time in a class room learning things like radio codes, constitutional law, and report writing, isn’t that true?
Officer: That’s true.
Defense: And while the classroom stuff was not near as fun you recognize then and certainly recognize now that things like report writing are critically important, correct?
Defense: In fact, you testified that domestic disturbance calls are one of the most frequent calls you have to make, correct?
Defense: You said you have made over a hundred domestic disturbance calls?
Officer: At least.
Defense: And over time those calls and the facts of those calls and the people involved can start to run together, correct.
Defense: So when you get called to court on a case, some 15 months later, that written report may be the only trustworthy way for you to remember what happened on a particular night, wouldn’t you agree?
Officer: I don’t know about “only trustworthy” way, but yes it does help.
Defense: I’ve read your report in this case. Is that a copy in front of you?
Defense: And I will tell you officer it is a well written report.
Defense: Does it surprise you that some of the reports your fellow officers write can be quite confusing?
Defense: It appears to me that you must have paid close attention when they were covering report writing in the academy. You were clear to note things like demeanor, location, names, times…everything a solid report requires, isn’t that correct?
Officer: I tried.
Defense: They taught you in the academy how it was important to write all the critical facts in the report, correct?
Defense: That is for your benefit if you are ever called to testify, correct?
Defense: And for your benefit if you are ever questioned by your superiors for decisions you made?
Officer: I guess
Defense: And it is also important for the government prosecutors, so they know the strengths of the case and how to proceed?
Officer: You would have to ask them.
Defense: In fact, in probably about 95% of your case the report is the only communication between you and the prosecuting attorney?
Officer: What do you mean?
Defense: In most cases, the arrested citizen is dealt with in the court system without you ever talking to a prosecuting attorney?
Officer: I guess that’s right.
Defense: Back to this case officer, you followed all yoour training in writing this report?
Defense: You even had [the complainant] fill out a written statement correct?
Defense: And this was after you interviewed her?
Defense: And you interviewed her in the living room?
Defense: It was not dark in there was it?
Defense: Then you filled out the family violence packet forms and were careful to note on the diagrams everywhere [the complainant] had injuries correct?
Defense: And that included the abrasions and red marks on her arm and the scrape on her knee, correct?
Defense: And then, after my client was arrested by you, you completed a sworn probable cause affidavit for the local judge to review, isn’t that right?
Defense: And in that sworn affidavit you wrote again about the injuries you observed, the demeanor of those involved, and what everyone at the scene told you, correct?
Defense: And this was a separate document from your report?
Defense: But like your report it was done the night you arrested my client?
Defense: In fact, within an hour or so of leaving the scene?
Officer: Maybe two.
Defense: When it was fresh on your mind?
Defense: Before you were called to any other domestic disturbances?
Defense: And you wrote the complainant was crying?
Defense: And you wrote she said they struggled over a cell phone?
Defense: And you wrote she admitted pushing my client?
Defense: And you wrote my client was wearing a Romo jersey?
Defense: And you wrote he asked to get a jacket because it was cold?
Defense: And you wrote that you noticed a chair knocked over?
Defense: And you wrote that she said she thought my client had been having an affair?
Defense: And you wrote that you could smell a faint odor alcohol on my client’s breath and you saw, and I’m quoting, “a Bud Light tall boy” that was still “cold to the touch.” Correct?
Defense: And you wrote that there was a Samsung Nexus phone with the case removed on the table, correct?
Defense: You wrote that you observed abrasions and marks on her arm and the scrape on her knee, correct?
Defense: You wrote that [complainant] said my client hit her in the face.
Officer: Yes, sir.
Defense: And you also wrote that my client denied that and said [complainant] actually pushed and grabbed him when he was trying to leave.
Officer: That is what he said.
Defense: You wrote with great detail like you were trained correct?
Defense: Yet nowhere in this report did you ever write that you observed “red puffiness” under [the complainants] eye?
Officer: No, I did not.
Defense: And you didn’t note it on the diagram of the injuries?
Defense: And you didn’t put it in your sworn affidavit?
Defense: Three times you noted the injuries you observed and in none of those three did you mention “red puffiness” to the face or any other injury to the face did you?
Officer: I guess not.
Clearly I still have much to learn from Mr. Warren’s example. Nevertheless, by being patient with the questioning of an adverse witness, we were able to “box in” the officer such that it would be extremely difficult for him to retreat to the “honest mistake” position so many “professional” witnesses rely upon when confronted with inconsistency between the testimony and the facts. In my example, the jury was left wondering how such an important detail, if true, could have been missed by the officer. I mean, even the mean old defense attorney admitted it was not a sloppy report that appeared hastily written.
By contrast, if I were to have approached the new evidence of injury with bluster or indignation (or worse by accusing the officer of outright of fabrication) it would have been much more difficult to establish through the officer that his training and otherwise solid report writing were compelling evidence that the failure to contemporaneously note the injury wasn’t an “honest mistake’ in report writing but rather was likely a false memory (or outright fabrication) developed in the time since.
As a final note (which we will discuss later in this series) it is important when cross examining to know when to STOP. So often we see lawyers lose all they have gained by executing a great “box in” cross with a dreaded “how” or “why” question. For the love of the spirit of Daniel Webster please JUST STOP. You as the story teller can provide the answer as to WHY in closing arguments.
Crushing the Cross Examination
Part Two: Proceed with Caution!
To be continued…..
P. Micheal Schneider is the President and Managing Attorney at the Schneider Law Firm, PC in Fort Worth Texas. The firm practices exclusively Family Law and Criminal Defense. Micheal Schneider has been named a Texas Super Lawyer by his peers as published in the Texas Monthly Magazine and has been named a Top Attorney six times by his peers in Fort Worth, TX Magazine.
At the Schneider Law Firm we pride ourselves on representation of clients in all phases of the criminal justice system. While we receive the most accolades for our trial work we are equally proud of the work we do for client’s seeking parole or trying to stay on parole. This blog post focuses on ten common questions we receive from family and friends that want to try and get loved ones released from prison early or from client’s that risk having their parole revoked.
1. What is the difference between probation and parole?
Probation and parole are similar in that they are both alternatives to incarceration. Probation is a sentencing option in lieu of going to prison, where the defendant is supervised by community probation officers. Parole is an early release from prison for offenders who still have time remaining on their sentences. A person on parole is still in the legal custody of the state and is supervised by state parole officers.
2. How soon is a person eligible for parole?
A person’s parole eligibility depends on several factors, including the year in which the offense occurred, if it occurred in a drug-free zone, or if it was a violent offense. In the vast majority of cases, offenders are eligible when their calendar time served plus their good conduct time equals 25% of their original sentence.
3. Does an offender benefit from having an attorney when seeking parole?
Yes. Unlike what you may have seen on television, most offenders never get an in-person interview with the members of the Parole Board. The decision of the Board is often influenced by what is contained the offender’s file, including police reports, reports of probation violations and victim statements. Having an attorney to advocate on behalf of the offender can be a significant advantage.
4. How soon should an offender begin preparing for his or her parole?
Sooner is always better. The attorney will need to file paperwork with the Board, will need time to interview the offender and to create a thorough parole presentation package. Family members will need time to write and gather letters of support. A good rule of thumb is to allow at least six months before the initial parole hearing.
5. How is the parole process handled and who determines whether an offender is granted parole?
There are seven Board offices throughout the state. Prisons in Texas are regionally assigned to one of the seven offices. When an offender is eligible to be considered for parole, his or her file, along with any letters of support or parole packages will be transferred to the applicable office where a voting panel will review the file and vote to determine whether or not to grant parole. The voting panel usually consists of two commissioners and Board member. An offender needs two affirmative votes in order to be awarded parole.
6. What is considered when an offender is up for parole?
The Board has developed a set of parole guidelines as a tool to help them to determine an offender’s probably for success on parole. These guidelines include factors such as the offender’s criminal history, employment history, age, and the severity of the offense. The voting panel will also consider an offender’s prison disciplinary conduct, whether he or she has participated in vocational or character development programs, and whether the offender’s release plan is suitable for successful reintegration.
7. What happens if an offender gets into trouble while on parole?
Parole is a privilege that can be revoked if the parolee does not follow the rules and conditions associated with his or her release. Sanctions for parole violations can range from a verbal reprimand all the way to a full revocation of parole.
8. What is a parole revocation hearing?
If an allegation of a parole violation has been made, parolees have the right to ask for a revocation hearing. During a revocation hearing, the allegations of wrongdoing must be proved by a preponderance of credible evidence.
9. Who decides whether a parolee should have his parole revoked?
In the event of a parole violation, parole officers and parole supervisors often provide the board offices with a narrative of the violation along with their recommendation on whether or revoke parole or to continue supervision, but the voting panels at the Board offices make the final determination.
10. Does a parolee have a right to an attorney at a revocation hearing?
Yes, parolees may hire an attorney to serve as their advocate during the revocation hearing. In some cases indigence or where mental competency is a concern, the state may appoint an attorney. The attorney can present evidence, examine witnesses and cross-examine adverse witnesses.
Trent Marshall is a veteran attorney with considerable parole law experience. Prior to joining the Schneider Law Firm, he was a commissioner with the Board of Pardons and Paroles. Mr. Marshall was also appointed by Governor Perry to serve as a member of the Polygraph Examiners Board and the Texas Board of Criminal Justice Advisory Committee on Offenders with Medical and Mental Impairments.
If you would like to discuss your case with Mr. Marshall, he can be reached at 817-850-9955 or by email to firstname.lastname@example.org
Court cases are won and lost on the strength of the evidence. The biggest piece of evidence is usually the testimony of the parties and witnesses. This is why at the Schneider Law Firm we spend a lot of our trial preparation time with or clients reviewing their anticipated testimony. As a rule of thumb I like to prepare with my client a minimum of three hours for every one hour we anticipate they will testify.
There are two primary situations in which testimony is taken in Texas. The first is obviously in a court room with a judge and/or jury listening. The other is in a deposition. A deposition is a procedure whereby attorneys are allowed to question witnesses under oath outside the courtroom setting and prior to the trial.
In Texas criminal cases such as assaults, DWI, or drug cases, depositions are extremely rare. Testimony preparation is therefore geared toward the courtroom environment. In civil cases such as divorces, custody suits, or personal injury suits, depositions are routine and are often given great weight when deciding whether a claim has merit.
In either of these scenarios it is important to be prepared. In an attempt to get my clients prepared for a Texas deposition I usually review the following list at the beginning of each meeting. Even though this is list specifically written for deposition preparation, most suggestions contained apply equally to just about any scenario where testimony is being taken.
Deposition Prep Checklist
1.) Tell the truth
• Perjury in an official proceeding is a 3rd Degree felony
• Even falsehoods on a minor or irrelevant issue can be used to destroy your credibility at trial.
• Note however, telling the truth does not mean volunteering information…answer truthfully, but only what is ASKED.
2.) Bring nothing with you in the room unless I have reviewed and approved
• This includes personal notes
• TRE 612 allows an examiner to review any notes or documents used to refresh a deponent’s memory.
3.) Listen carefully, then pause
• You should listen to each question carefully
• Questions may not be as simple as they seem
• Do not be afraid to ask for clarification or rereading if the question is not understood
• The record of the transcript WILL NOT contain your pauses, so don’t worry about taking time to formulate your answers in your head
• Pauses also give me a chance to object if necessary.
4.) If a document is presented, read it CAREFULLY
5.) Private conferences with me during the deposition are improper and generally not allowed
• The only exception is to decide whether a question violates a privilege (Attorney/Client, Trade Secret, etc.)
• We can conference during breaks
• Despite this rule, I would rather you ask for a conference than answer a question untruthfully, inaccurately or in excess
6.) Discuss with me during a break if you need to change an answer
• Don’t just blurt it out on the record
• Small, technical changes can be when we are reviewing the transcript
7.) Qualifying answers
• When appropriate use the terms “To the best of my recollection,” or “I believe it was/is…”
• DO NOT qualify answers that you are factually certain about
8.) NEVER Speculate
• If you don’t know an answer, say so!
• Unless specifically asked for an opinion, don’t give one.
• If asked for date or time, only answer if specifically known. “On or about…” “I believe it was…”
9.) Answer only the question posed
• Don’t try to guess the next question
• Short answers are best
• Yes/No are ideal so long as accurate and not misleading
• If, and only if, a short answer is misleading should you explain
NOTE: Depositions are only one phase of a case…you will get time in trial to clarify your answers and present your own evidence
10.) If I say don’t answer, then don’t answer
11.) Objections are ruled on at a later date
• Most of the time you will still need to answer the question…but see #10
• Objections in a deposition are very limited and are usually just “place markers”
• Exceptions: Not Relevant, Privileged
12.) Don’t promise future help
• The law requires you answer questions, not make agreements
• Don’t agree to be available, produce anything, or look up anything
13.) Don’t get angry or emotional or rattled
• Don’t argue
• Don’t address the opposing party
• No name calling or abusive language
• Don’t project feelings about OP on the OC
14.) The examiner is NOT your friend
• Be polite, but vigilant
• Do not concern yourself with convincing the examiner
• Do not be concerned with the examiners confusion…if you have answered truthfully you have done your job
15.) Speak Clearly
16.) Be prepared for sensitive questions
• Inform me of worrisome issues so we can discuss
17.) Don’t assume the examiners summary of facts is correct
• Listen carefully
• If you have no personal knowledge of the summary then say so
• Don’t let examiner put words in your mouth
18.) If I object stop talking. Don’t start again until directed
19.) My objections may give hints as to what or how to answer
20.) No duets
21.) If you need a break, let me know
This is meant as a general overview only and is by no means a substitute for the advice of a good lawyer that is tailored to your situation.