The first day of Scott’s multi-day deposition was December 2, 2013, about eleven months after we had filed for divorce. It didn’t take my attorney long to begin asking Scott about all of the women, some of whom Scott knew we would be asking about. They had been on our witness list, which we were required to file with the court and therefore provide to Scott and his attorney. Patrick first asked about Haley Kendrick, a woman from Massachusetts who was on the witness list.

Patrick:    Do you know a woman by the name of Haley Kendrick?

Scott:       Yes.

Patrick:     How long have you known Haley?

Scott:        A few years. I’m not exactly sure.

Patrick:     Is “a few years” two years or five years?

Scott        It’s three or four. I’m not exactly sure how long I’ve known her.

Patrick:    And when did you first meet her?

Scott:       I met her at a sort of business networking function in downtown Boston.

Patrick:    And do you know where she lives now?

Scott:       Somewhere in Massachusetts. I think down the Cape somewhere.

Patrick:     Is she married now?

Scott:       I don’t know.

Patrick:    You never discussed her marital status?

Scott:       I know at one point she was getting divorced. I don’t know if she’s divorced, remarried or what her status is currently.

Patrick:     So when you first met her, she was married?

Scott:        She was in the process of getting divorced I believe.

Patrick:     Are you still in contact with Haley Kendrick?

Scott:       Sometimes.

Patrick:    When was the last time you were in contact with Haley Kendrick?

Scott:       We exchanged Thanksgiving texts.

Patrick:     Prior to that?

Scott:        Probably a text over the summer.

Patrick:     Have you ever had sexual intercourse with Haley Kendrick?

Scott:       (reading from a prepared sheet of paper)

“On the advice of counsel I respectfully decline to answer your question based on the protections afforded me by the United States Constitution and under Article 12 of the Declaration of the Rights of the Constitution of the Commonwealth of Massachusetts.”

It is still a crime to commit adultery in Massachusetts (though a crime rarely prosecuted). Nonetheless, since it is on the books, Scott took advantage of his Fifth Amendment Privilege not to incriminate himself in his testimony. However, in a civil case like a divorce, when a party refuses to answer such questions and uses the Fifth Amendment as the reason, the judge can infer adultery did occur.¹

After asking about Haley, Patrick went on to ask questions about Wendi Morton and Renee Kent, additional women on our witness list. Scott invoked his Fifth Amendment Privilege and refused to answer any questions relating to his having sex or spending the night at specific hotels with either of them. He even invoked the Fifth and refused to answer questions about setting up “dates” with them. He did, however, answer questions about restaurants he had taken them to, presents he had purchased for them and cash he had given them. Scott also insisted the cash was a “gift,” instead of a payment for sexual services rendered. I found it particularly galling when he admitted he had purchased presents for Wendi’s children! What an insult to his daughters, especially since he continue to brag about what a good father he was.

Since Scott’s hidden phone record included texts and calls to Wendi Morton’s sister, Patrick grilled Scott about her too. Scott admitted to having drinks with the sister (Wendi wasn’t there), but took the Fifth and refused to answer when Patrick asked if he had had sex with her. This meant, of course, he did screw her and his testimony made it clear Wendi didn’t know about it.

With the exception of Wendi’s sister, these were all women Scott knew would come up in his deposition because we had put them on our witness list . He was prepared to get questioned about them, which was why he came in with the printed statement he read each time he took the Fifth. After an hour of grilling Scott about these women, Patrick blindsided Scott by going after the other women I had found in his hidden phone record, starting with Sandra Smith.

Patrick:     Do you know a Sandra Smith?

Scott:       The name does not ring a bell.

(and after a number of other questions about Renee Kent)

Patrick:     I asked you about Sandra Smith, correct?

Scott        Yes.

Patrick:     And that name didn’t ring a bell?

Scott:       Correct.

Patrick:     Let me show you a picture. Do you recognize this woman (Indicating)?

Scott:       No.

(Patrick showed Scott the following picture)

 

Patrick:     You have never seen her before?

Scott:       Not to my recollection, no.

Scott turned white at this point and asked for a recess. He said he had to use the restroom. I’ll bet!

After we came back, Patrick went through the rest of the women, showing the pictures and background information I had collected on each, asking Scott to verify his hidden phone had been used to text and call each of the women. Scott claimed not to know over 23 women I had identified through my research, but verified it was his hidden phone when shown evidence of all of the calls and texts he had received or sent to each woman, many of whom he connected with over 50 times. However, he took the Fifth when asked if he had sex with them. Translation: he fucked all of them!

Scott didn’t just refuse to say he had sex. He invoked his Fifth Amendment Right for all sorts of questions, including:

• Whether he had dated and how he set up dates with women Patrick named
• Whether he “stayed with” or was he “seeing” seeing women Patrick named
• His use of dating websites (including Craigslist)
• Whether he had dated an African American or Asian woman
• Whether he had stayed at particular hotels or even eaten at a particular restaurant with a woman other than his wife
• Whether he ever told me he was on a business trip and was really meeting another woman
• Whether he was in love with Wendi or had asked her to marry him
• Whether Wendi knew about all of the other women
• Whether he ever had sex with Wendi and another woman at the same time
• Whether he made any purchases at Victoria’s Secret (even I don’t get why he wouldn’t answer this one!!!)
• Whether he was in a relationship or romantically involved with women Patrick named
• Had he ever had sex with someone he had met less than 24 hours prior
• Had he given someone money and engaged in a sexual activity with her less than an hour later
• How many women he had met in the bar of particular hotels.

Hilariously, Patrick even asked Scott if he had attempted reaching out to a Marilyn Monroe impersonator in Las Vegas. Scott said no of course, then Patrick asked him to verify he had sent and received over 100 texts from the phone number owned by Debra Davis in Las Vegas. Patrick also showed him the background information I had collected on Debra Davis.

By the end of the first day of his deposition (and having been questioned about almost thirty women), it was clear Patrick had gotten under Scott’s skin:

Patrick:     Are you still involved in a romantic relationship with Haley Hendrick?

Scott:      

 “On the advice of counsel I respectfully decline to answer your question based on the protections afforded me by the United States Constitution and under Article 12 of the Declaration of the Rights of the Constitution of the Commonwealth of Massachusetts.”

       Please stop asking “when did you stop beating your wife” questions.

Patrick:     Excuse me?

Scott:       Please stop asking “when did you stop beating your wife“ kinds of questions. Those are demeaning to the practice of law.

Patrick:     Excuse me?

Scott:       You know what I mean.

Scott’s sanctimonious behavior infuriated me, so I stepped into the fray, even though I was not supposed to speak during his deposition.

Gail:        I’m not supposed to know this stuff, Scott?

Scott:      It’s the way he is phrasing the questions. Its demeaning to the practice of law.

Gail:        Well you’re demeaning to the practice of marriage, so, you know, come on. Let’s talk to your parents about the practice of law, Scott, and what you are doing. Let’s do that!

In all, Scott took the Fifth over 120 times during the course of his deposition. This was truly embarrassing, particularly since his parents were lawyers who regularly bemoaned the sorry and unethical state of the legal profession. How would his prim and proper mother, a retired judge, have reacted in her courtroom to a witness taking the Fifth over 120 times, particularly when the questions were about infidelity and paying for sex?

I asked a couple of lawyer friends, litigators whose business was depositions and trials, whether Scott’ use of the Fifth Amendment was excessive. They said they had never seen anything like it and these were lawyers who had been litigating for over 20 years!

 

1.  “the trier of fact may make a reasonable adverse inference from a party asserting his or her Fifth Amendment Privilege. This differs from asserting the same privilege in a Criminal case, where no such inference may be made. For example, it is still a crime in Massachusetts to commit adultery (although rarely prosecuted). In a divorce case, one party may assert his or her Fifth Amendment Privilege to not testify about an affair with a third party. It is possible the trier of fact (in this case, the judge) may make a reasonable adverse inference that the party who asserted his or her Fifth Amendment Privilege did in fact have an affair”(Source: http://finnandeaton.com/pleading-the-fifth-amendment-in-a-civil-case-protecting-your-privilege-against-self-incrimination/)