Depositions, Court, and Divorce Trials in Tennessee

From The Mid-South Divorce Guide, chapter 11, by William W. Jones
IV, a Memphis family law attorney and Rule 31 Listed Family Mediator
licensed in Tennessee and Mississippi. This guide covers Shelby, Tipton
and Fayette Counties in Tennessee and DeSoto, Tate and Tunica Counties
in Mississippi.

Questions this page answers

• What happens at a divorce deposition?
• What should I wear to divorce court?
• What happens at a divorce trial?
• Can I bring my phone into the courthouse?

Depositions

A deposition is your sworn testimony, taken in a conference room,
with a court reporter making a transcript. Opposing counsel asks the
questions. Your lawyer is beside you. There is no judge.

Rules for being deposed, and these are the ones that actually
matter.

One. Tell the truth. Always. Even when it hurts.
Especially when it hurts.

Two. Say the smallest true thing. What sinks most
people is not a lie, it is helpfulness. You want to be understood, so
you explain. Every sentence past the accurate one is a new fact in the
record and a new door for somebody to walk through. If yes is true, yes
is finished. Your lawyer will tell you afterward that your best answers
were your shortest ones, and you will not believe how short they
were.

Three. If you do not know, say you do not know. If
you do not remember, say you do not remember. Those are complete,
acceptable, truthful answers. Guessing under oath creates a transcript
you get beaten with later.

Four. Wait for the whole question. Then pause. The
pause lets your lawyer object, and it keeps the transcript clean.

Five. Ask for clarification if a question is
confusing or compound. You are not required to answer a question you do
not understand.

Six. Never argue with opposing counsel. They may try
to get you angry. An angry witness says things a calm witness does
not.

Seven. Remember that a court reporter is typing. The
room is casual, the lawyer across from you may be perfectly pleasant,
and two hours in your guard comes down. It is not a chat. Every word
becomes a transcript that gets read back to you in a courtroom, in a
flat voice, at the worst possible moment.

If you need a break, ask for one. You are entitled to breaks.

Court appearances

Most of what happens in court in a divorce is motions, not trial.
Short hearings, often on a crowded docket, where the judge decides one
issue.

Get there early. Turn your phone all the way off, not on vibrate.

What to wear, and what
to leave at home

The goal is to be the least interesting-looking person in the room.
Conservative, covered, nothing tight, nothing short, nothing low,
nothing anybody would describe afterward. If you find yourself wondering
whether an outfit is too much, it is.

Now the part that actually costs people money, and almost nobody
warns them about it.

A courtroom where your finances are being examined is not the
place to wear your good jewelry.

I know you are proud of the Louis Vuitton bag. I know the Rolex was a
gift, or you earned it, or you have had it for fifteen years and it is
just your watch. None of that is the point. The point is that you are
about to spend a morning telling a judge either that you cannot make
ends meet, or that you cannot afford what your spouse is asking for, and
the judge is looking at you while you say it.

Judges notice. Opposing counsel absolutely notices, and a good one
will find a way to get it into the record. I have watched a lawyer ask a
witness, pleasantly, what kind of watch that is, and then let the answer
sit there.

So leave it in the drawer. The bag, the watch, the tennis bracelet,
the diamond studs, the designer shoes with the red soles. Wear something
plain. You can put all of it back on the second you get to the parking
garage.

This is not about being dishonest. Nothing about your closet changes
what your bank statements say. It is about not handing the other side a
free argument that has nothing to do with the merits, on a day when the
judge is forming an impression of you and has about ninety minutes to do
it.

Sit still and keep your face neutral. Judges watch. When your
spouse’s lawyer says something outrageous about you, and they will, the
judge is going to glance at you. The client who is calm looks like the
reasonable one. The client who is shaking their head and mouthing words
looks like exactly what the other side just described.

Do not speak unless you are asked a question. Address the judge as
Your Honor. Say yes sir, yes ma’am.

Your phone may not get
in the building

Shelby County lets you bring your cell phone into the courthouse. A
lot of other courthouses do not, and that includes DeSoto County across
the line in Mississippi. Some courthouses will not let a member of the
public bring in any electronic device at all. No phone, no tablet, no
laptop.

This matters more than it sounds, because a great deal of modern
evidence lives on a phone. Text threads, photographs, call logs,
screenshots, location history. If your evidence is on a device and the
device cannot come inside, your evidence did not come to court.

Talk to your lawyer about this well before the hearing, not in the
parking lot that morning. Attorneys are generally permitted to bring
devices in, so we can arrange to carry your phone or your laptop into
the building for you. Better still, get the material off the device and
into a usable form ahead of time, printed or produced properly, so
nothing turns on whether a deputy at the door is having a good day.

And clear the whole day, not the hour. Your ten o’clock may get
called at ten, or the judge may take a long matter first and reach you
after lunch. Tell your employer you are gone until five and be
pleasantly surprised.

Trial

This is the part of the process the general public is most afraid of,
and it is the part almost nobody has any accurate picture of, because
what most people know about a trial they learned from television. So let
me walk you through what actually happens in the room.

First, though, the most important fact about trials.

Very few divorces are tried. People who have spent
eight months unable to be in the same room somehow arrive at terms in a
hallway on a Tuesday. It happens constantly and it surprises everybody
but the lawyers.

What usually does it is arithmetic, arriving late. A judge who has
known your family for eight hours is going to decide who gets the
retirement account, and which house your children wake up in on
Christmas morning. Parents are supposed to make that second one.
Something in most people refuses to hand it over once the moment is
actually in front of them.

There is a second reason, less noble and just as effective. By the
time a case reaches a courtroom both people have watched the money
leave, and a settlement starts looking less like surrender and more like
the only version where anybody keeps anything.

Some cases still have to be tried, and there are good reasons for
that, which I will come to. If yours is one of them, here is the shape
of the day.

One thing happens the day before, and it is worth knowing about
because you will be asked to help with it. In Shelby County a contested
divorce trial requires a written trial memorandum delivered to the judge
at least twenty four hours ahead, filed and served at the same time. It
runs through the case item by item: what you are asking for and why, the
children’s names and ages, whether you are seeking to be primary
residential parent, the schedule you want for the other parent, a
child support figure with the worksheet attached, what should happen to
the house and what it is worth, how the debts and the personal property
get divided, and whether alimony is sought and in what form. It also
certifies that the financial affidavits were exchanged.

That document is where a year of work gets reduced to a few pages,
and the questions in it are the same questions you answered for yourself
back in Chapter 2 on a
Sunday afternoon. The clients who did that exercise find this week much
easier than the clients who did not.

Courtroom procedure, briefly

There is no jury in a Tennessee divorce. A judge
hears the evidence and decides. That is called a bench trial, and it
changes the feel of the room considerably. There is no performing for
twelve strangers. There is one person who has read the file, has seen a
thousand of these, and mostly wants counsel to get to the point.

The party who filed generally goes first. If you are
the plaintiff, your lawyer presents your case first. If you are the
defendant, you wait, and you listen to the other side’s version of your
marriage for a couple of hours before anybody says a word on your
behalf. That is uncomfortable. Know it is coming.

There may be brief opening statements, though in a
bench trial judges often dispense with them or cut them short. The judge
has the pleadings and does not need a preview.

Then the first side calls its witnesses, one at a
time. Every witness goes through the same cycle.

Direct examination. Your own lawyer questions you.
These are open questions that invite you to explain in your own words.
Tell the court about your work schedule. Describe a typical week with
the children. Walk us through what happened on the night of the
fourteenth. Lawyers sometimes call this calling for a narrative, and it
means exactly what it sounds like: you talk, and your lawyer stays out
of the way. This is your chance to tell your story in complete sentences
and it is the only part of the day that is genuinely yours.

Cross examination. The other side’s lawyer questions
you next. The tone changes and so does the grammar. Cross is built on
leading questions, which are questions with the answer already in them,
designed for a yes or a no. You told this court you cannot afford four
hundred a month, correct? But you took a trip to Destin in June, didn’t
you? The goal is not to let you explain. The goal is to pin down
specific facts and to find daylight between what you said today and what
you said in your deposition, your affidavit, or a text message eight
months ago.

Do not fight it. Give the true answer to what was actually put to
you, then wait. If a bare yes would leave a false impression, say so in
one short sentence and let your lawyer repair the rest on redirect.
Arguing with a cross examiner is how good witnesses turn into bad
ones.

Redirect examination. Your lawyer gets you back and
repairs whatever needs repairing. Redirect is limited to subjects that
came up on cross, so it is narrow by design. This is where the Destin
trip gets explained as the one week your mother paid for.

Recross. Sometimes the other side gets one more
short pass, limited to what came up on redirect. Then the witness is
excused.

That cycle runs for every single witness. You, your
spouse, an expert if there is one, a teacher, a counselor, a neighbor,
whoever is called. Direct, cross, redirect, sometimes recross. Once the
first side has called everybody, they rest, and the whole process starts
over with the other side putting on their proof.

After both sides rest there may be brief rebuttal
proof, then closing argument, where the
lawyers argue what the evidence showed and what the law requires.

Then you wait. Some judges rule from the bench that
day. Many take it under advisement and issue a written ruling weeks
later. Either way the lawyers then have to reduce the ruling to a final
decree, get it approved, and get it entered, which takes more time
still.

When a case should be tried

I have tried cases I would try again tomorrow, so let me be plain
about when the courtroom is the right room.

Try it when a child’s safety is genuinely at stake and the other
parent will not move. Try it when your spouse has decided that no number
exists that they will accept, because you cannot negotiate with somebody
who is not negotiating. Try it when the dispute is a real legal question
rather than a disagreement about money, because those need a ruling, and
a compromise neither side believes in will be back in front of a judge
within two years anyway.

Those are the cases where the risk is worth taking. Notice that none
of them is about being right.

A note on why
nobody will quote you a number

While we are here, this explains something that frustrates clients
from the first meeting onward.

Ask what you will get at trial and any competent lawyer gives you a
range instead of a figure. That is not evasion and it is not a lack of
preparation. On most of what a divorce decides, the law hands the judge
wide discretion deliberately, which means there is no single correct
answer sitting there waiting to be found. Two capable judges can hear
identical proof and land in different places, and both rulings are
sound.

So the range is the honest answer, and it is also why settlement
exists at all. A number you negotiated is a number you helped choose. A
number a court hands down is one you agreed in advance to accept sight
unseen. Neither is wrong. They are just different trades, and you should
know which one you are making.

So price that risk honestly against whatever is on the table in front
of you. Sometimes the answer is still trial. Make it a decision rather
than a reflex.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.