If your spouse’s bad behavior will be addressed in his deposition, your attorney needs hard proof to back up the infidelity questions. This was especially true for me because of Scott’s history of compulsive and pervasive lying. We were certain he would not admit to anything unless irrefutable evidence was staring him in the face. I assisted my attorneys, and saved substantially on legal bills, by organizing the evidence in a way that helped them to ask pointed questions with solid proof he couldn’t refute. 

Documenting infidelity is important for a number of reasons, one of which is proving the amount of money your spouse has dissipated in his adulterous pursuits. Moreover, in a state like Massachusetts, a spouse’s conduct is one of the factors a judge can consider both in awarding alimony and also in determining the asset split. In other states, North Carolina for example, conduct can play an even more significant role. I even held out the hope Scott would agree to negotiate a favorable settlement when he saw the evidence that would come out in a public trial.

 

I. Preparing for His Deposition

Organize the Evidence

In preparation for Scott’s deposition, I discussed with my attorneys how I could organize the reams of paperwork I had collected to show what Scott had done. We agreed I would provide my attorneys with the following information so they could box Scott into admitting his behavior.

Cash Withdrawals: For each individual Teller Assisted Withdrawal and ATM Withdrawal I had identified as suspicious, I made a copy of the page from the relevant bank statement, highlighted the line item and wrote a cover sheet indicated the amount, date and place of the withdrawal. I sorted the withdrawals into two files – one for Teller Assisted, one for ATMs. This gave my attorney the ability to ask about the withdrawals one by one.

Credit Card Charges: I followed a similar process for each suspicious credit card charge (copy of relevant statement, highlighted the suspicious charge), attached a cover sheet indicating the amount, date, place and what the charge was for. In many cases, I could also indicate on the cover sheet which woman might be involved, e.g. charges in New Jersey were probably for Wendi Morton, Connecticut for Renee Kent and so forth. I grouped the charges into a number of files including,

• Hotels
• Restaurants
• Liquor stores
• Travel, including airfare/train tickets indicating one of the women as the passenger
• Retail – jewelry, lingerie, toys, electronics and others
• Drug Stores
• Dating Websites (including screenshots of the online search and the website homepage)
• STD test (including screenshot of my online search)
• And others

Arranged this way, my attorney could show each purchase, forcing Scott to admit what it was and who it was for.

Other evidence from discovery: These included

• Hotels.com document showing Scott’s hidden phone number and email address
• PayPal document showing another hidden email address
• Virgin Mobile: the cover document to the phone history showing his Bill Douglas alias and fake address. This would be particularly important if Scott denied he had a hidden phone.

Women: For each woman I had identified from Scott’s hidden phone, I provided a sheet taken from the Virgin Mobile document production of Scott’s hidden phone call record – I had specifically sorted the overall file to show only that woman’s data. I also provided screen shots of anything I had found out about the woman through my on-line search. I attached a cover sheet with suggested questions about the woman. With these details, my attorney could force Scott to admit he had been in contact with the woman on his hidden phone, even if he refused to say or lied about whether he had met her.

To prepare for a second day of deposition, I also grouped cash withdrawals and hotel, restaurant and other charges by woman so Patrick could ask Scott if he had stayed at a particular string of hotels with a certain woman.

I generated a mountain of paper for my attorneys — at least ten boxes! Had a paralegal done the work, it would have cost me a small fortune, certainly over $25k. My determination to force Doug to admit the truth also insured I was more comprehensive than a paralegal might have been

Develop a List of Suggested Questions

Suggesting questions helps your attorneys because you have a far better grasp of the history and context of your relationship. You are likely to come up with questions your attorneys wouldn’t have considered. Writing questions and organizing the accompanying evidentiary support saves additionally on your legal fees, as this would otherwise be done by a paralegal.

Most of the questions I suggested to my attorneys included back up evidence Scott couldn’t refute. I did include some questions our discovery couldn’t answer. For example, we had employed ten au pairs over the years and I wasn’t entirely certain he hadn’t hit on them. I had already asked each of the au pairs, all of whom said no. Still, I felt it was important to ask this question of Scott as well.

At the Deposition, Leave it Up to Your Attorney

It is tempting to want to control what happens in his deposition. You simply are not the expert for that part of your divorce. You must trust that you have chosen good representation and let them do their job. It also doesn’t help to get frustrated if they don’t use all of your questions or data. You can certainly pass them notes during the deposition but that can be distracting. I was fortunate to have two attorneys so I could pass a note to the one who wasn’t doing the direct questioning and he or she would pass it on if it was worthwhile. Scott’s deposition occurred over multiple days, so I was also able to give additional questions to my lawyer as the deposition progressed.

I actually appreciated that I had to give up control at this critical point. It highlighted the importance of picking the right attorneys. I was confident about their abilities and trusted them completely so it was easy for me to let go at that point.

II. Preparing for Your Deposition

Advice on Testifying at Deposition and Trial

My attorneys gave me great advice in preparing me for my deposition. There are a number of things to keep in mind.

Yes or no answers are best. It is tempting to want to fill air time – to talk more. Resist it. Being deposed is a stressful event and the opposing attorney won’t stop you from talking. You only need to answer the specific question the attorney asks. In addition, you don’t have to know or remember everything. If you don’t know or can’t remember, admit it, but don’t say anything else.

Make sure you understand the question asked. If you don’t understand the question, ask the opposing attorney to rephrase it and don’t do him or her the favor of rephrasing yourself. Scott’s attorney was an idiot and there were quite a few occasions when he asked questions I didn’t understand. I forced him to rephrase multiple times and some of them I still couldn’t figure out.

Give yourself time to formulate an answer. It is tempting to try to speed up the process in order to get it over with. This is natural. But rushing to an answer isn’t going to help your case and you may end up saying more than is required. Remember to answer only the question asked and the shorter the answer, the better.

Resist the temptation to anticipate the question asked.This was a particular problem for me and I often would answer before his attorney finished the question. My attorney had to remind me to wait until the question was finished. It was particularly difficult for me to be patient and wait for Scott’s attorney to finish his question because he simply was not competent and it irritated me.

Keeping calm is important. He and his attorney are trying to uncover information through their questioning. They are also trying to determine how you might be as a witness if the case comes to trial. Scott’s lawyer, in addition to being incompetent, was condescending and tried to rattle me with rude questions. I was glad I had prepared with my attorneys and recognized arguing with his lawyer was not going to do me any good.

Prepare for the deposition, including a dry run with your attorneys. Practicing will help you to implement this advice. Ask your attorney the kinds of questions you might be asked. Have them role-play the opposing attorney (including his mannerisms if necessary). Ask them what they are most worried about. Ideally this will help you to avoid surprises in your deposition. I found the following source to be useful as well: http://familylawyermagazine.com/articles/preparing-for-deposition-the-clients-perspective

My attorneys, especially Patrick, were on fire during Scott’s deposition. Watching Patrick and Marianne tag team to work on Scott and his idiot attorney, Duff, was a thing of beauty. Scott was intimidated by Patrick, who was good looking, confident and not one to be pushed around.

Duff, on the other hand, was undone that I had two attorneys versus just him representing Scott. He kept complaining it was unfair. My attorneys’ response was always along the lines of “cry me a river, Duff, get your client to pay for a second attorney.” Marianne also REALLY got under Duff’s skin. It was funny to watch her put him off his game. Perhaps this wouldn’t mean anything in long run, but it certainly made for great legal theater!

Patrick masterfully organized his questions to put maximum pressure on Scott and succeeded in forcing Scott to address the breadth and depth of his screwing around. How else could the result have been taking the Fifth over 120 times? My detailed background work, of course, was crucial as well. We all had a good laugh when we found out my attorney fees, with two good attorneys, were less than Scott’s, with his one lousy attorney!