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.