A Different Sort of Deposition Surprise

Recently I wrote about a surprise revelation at a deposition that was the result of my client concealing information from his spouse – and from his lawyer. Actually, surprises at deposition are pretty rare; most depositions are fairly boring reviews of financial information that is well-documented before anyone is administered an oath. However, on occasion, deposition testimony may reveal rather surprising, and sometimes entertaining, information.

Several years ago, I represented a husband who was a professor at The Ohio State University. His estranged wife was on the faculty of another university in the Central Ohio area. Depositions were scheduled in the case. My client told me that his wife had pretty good evidence that he had been involved with another woman. He was concerned: "What should I say if they ask?"

I explained to him that his affair really had no impact on the outcome of the divorce, unless it had been accompanied by financial misconduct, such as paying the rent for his girlfriend. He assured me that no such misconduct had occurred.

In this day of no-fault divorce, sexual impropriety on the part of a spouse is virtually irrelevant. For example, Ohio's statutory structure for divorce contains rules for property division, spousal support, and the allocation of parental rights and responsibilities, including child support. No mention of adultery appears in any of these statutes. In fact, the only mention of adultery is in the listing of acceptable grounds for divorce. In 45 years of practice, I have never had a divorce case that turned on the sexual disloyalty of a party.

So, I told the Professor, as I do all my clients prior to deposition or any other testimony, that he should tell the truth. He assured me that he would do so.

Once we settled around the conference table in Wife's lawyer's office, and the parties had been placed under oath, opposing counsel began deposing my client. After a few routine introductory questions (name, address, employment) counsel asked, accompanied by a smug look from his client, "Have you had sexual relations with any women other than your wife during your marriage?"

A contemplative look came over the Professor's face, and then he answered, "Yes."

"And who was this woman?"

My client took a deep breath, and then began a litany of the many, many affairs he had during the marriage. "Well," he started, "the first one was a graduate assistant back about 20 years ago. I think her name was Margaret, but I don't remember for sure. Then there was Susie, a colleague when I first started at OSU. After her, there was . . . "

Wife's lawyer interrupted. "That will do," he said. His client's face was almost purple.

"But, I am not done," my client replied. "After Susie, there was our neighbor, Nancy. But that was only a one-time thing. The next real involvement was with Carolyn, who worked in the Provost's office. There were a few whose names I can't really remember."

He was just getting warmed up. His wife left the conference room. Her lawyer said, "That will be enough." He followed his client. Ten minutes later, they returned and the deposition proceeded. There were no further questions about the Professor's romantic adventures.

After the depositions were complete, my client told me he hadn't felt so good, so unburdened, as he did when he finally told the truth.

Deposition Surprise

No matter how many times a divorce lawyer tells his or her client the importance of being completely honest, all of us have experienced one or more situations where the client did not exactly follow that instruction. The client may believe that certain facts, if revealed, would be harmful to the case. Or, the client believes that no one will ever find out the truth, so there is no need to reveal it to his or her lawyer. On occasion, the potential for embarrassment is just too much for the client to overcome.

I make a point of telling clients that, no matter how harmful they may believe that certain information might be, they must reveal it to me. It is far better, I explain, that I know everything in order to be prepared to deal with the issue if and when it arises. But, on occasion, either the client does not believe me or is incapable of telling the truth.

One situation is particularly representative of the harm that can result from being less than forthcoming with a lawyer who is trying his or her best to assist the client through a divorce. A few years ago, I represented a man (let's call him Client) who had been married for several years. The case had progressed to the point that depositions of the parties were scheduled. As I do with every client about to be deposed, I discussed the need for honesty with Client and asked him whether there was anything involving him or his finances that he had not revealed to me. He assured me that I knew everything.

The lawyer on the other side of the case was an old friend of mine and a most capable and thorough practitioner. His questioning of my client proceeded in a normal and unremarkable fashion, as he explored the basic facts of the marriage and reviewed all the financial information that had been provided. Everything seemed routine.

Just as I was expecting my opponent to say he had no further questions, he reached into his briefcase and pulled out what I immediately recognized as a stack of credit card statements. He handed them to Client, who said: "Where the hell did you get those?"

I knew we were in for some unwanted excitement.

Wife's lawyer replied that it didn't matter where the documents came from and then insisted that Client identify them. He said that the statements were from a credit card that he used that his wife didn't need to know or worry about.

Client's business regularly took him to Las Vegas. The credit card statements, that covered a two year period, showed charges from just one place – the notorious Chicken Ranch in Pahrump, Nevada, just 60 miles outside of Las Vegas. The Chicken Ranch is a legal, licensed brothel and Client had apparently been a regular customer. The charges over a two-year period totaled over $20,000.00. The payment of this amount for Client's "activities" with marital funds was clearly financial misconduct.

The deposition quickly concluded. I took my client from our conference room to my office and asked him about the charges. He, of course, blamed his wife for not "meeting his needs." He told me that he thought she would never find out about the credit card, since he had the statements mailed to his office. Apparently, his secretary was not quite as loyal as he thought, since I later learned that she supplied copies to his wife.

When I told him that his failure to tell me about this situation so that I could reveal it to opposing counsel and attempt to ameliorate the harm it could do was a huge mistake on his part, he lost his temper, accused me of not being on his side, and fired me.

Good riddance.

Animals in the Office

                                              

In a previous post I wrote about taking kittens to the Courthouse to find them a home. I would have preferred to keep at least one of them as an office cat, but the county did not allow animals in the Courthouse.

I have also written about my association with Townsend, Newton, and Dewhirst, a law partnership created by three of my former students who invited me to be of counsel to the firm. It was TN&D that introduced me to the valuable service that pets can provide in a law office. Two tiny poodles, Leon and Russell, spent their days entertaining the lawyers and clients, and helping to create a relaxed, welcoming atmosphere.

After opening my current law office in January of 1995, we decided we would have animals in the office. We started out small. First, we had a gerbil and goldfish. My niece and paralegal Staci contributed a boa constrictor!  

Then, about eight years ago, my partner, Kerry McCormick, found a kitten abandoned in a sewer ditch. He was tiny, orange, and had long hair. She brought him to work, and he found a home that he still enjoys today. We named him Simon. He lives at Solove and McCormick.

Simon grew up. We discovered soon after he adopted us that he was a Maine Coon, the largest breed of domestic cats. Also the most talkative. Simon meows at us constantly, demanding that we pay attention. He is an affectionate fellow who never met a stranger. He greets our visitors in a most friendly manner. After all, you never know who might have treats! Of course, on occasion, allergies dictate that Simon has to be locked up in one of our offices, but, for the most part, he is a welcome addition to any meeting. Even when uninvited, he can work the lever door handles on our offices and simply let himself in.

Sometimes, Kerry brings another visitor to the office. Rocky is a wonderful boxer dog, sweet, affectionate, and as friendly as they come. I consider him my pal.

Several other lawyers I know have office pets. The presence of a friendly animal in an office can have a real calming effect on clients who are nervous and emotional during a visit to a divorce lawyer. Sometimes, I think, the clients are far happier to see Simon than to see me!