In all divorce and family law cases there are several types of methods to gain much needed discovery or evidence to assist in the case. There is written discovery which is commonly sent out in the beginning and which are typically in the form of interrogatories, request for production of documents and request for admissions. These are questions that your attorney can assist you with in formulating responses and objections to them as necessary. Other forms are depositions or oral testimony taken under oath before a court reporter and motions for blood tests, etc.
Depositions are more commonly done in cases these days to gain much needed answers to questions under oath. These occur in either your attorney’s office or in the opposing party’s office. A court reporter is present who also conducts the oath and takes down your testimony. During this event, it is vital that you tell the truth since anything brought out in deposition can be used to impeach you once you are on the stand in court. Impeachment is one way an attorney can demonstrate your ability to speak the truth. The judge considers your integrity during testimony and if it is demonstrated that you may have lied a prior time or during your testimony in court, the judge can consider that when making decisions.
Depositions are requested as a matter of right during a civil case such as a divorce, child custody, child support or other cases. Either party may request a deposition under oath prior to trial and its compliance can be enforced by court order. During depositions, your counsel may stipulate to usual stipulations. This only means that the objections to relevance, hearsay, etc will be saved for use at trial when a judge can make a ruling at the appropriate time. Attorneys typically do this and then the only objection made during deposition is to the form of the question. Therefore evidence in the form of testimony that may not be relevant to the case at hand may be asked during the deposition. This does not mean it can be used at trial. Typically attorneys will argue that the requested information is reasonably calculated to “lead” to the discovery of admissible evidence. The rules of discovery are interpreted broadly and most times a court will allow any question during deposition or the discovery phase. Only at trial will the admissibility of such evidence be considered and ruled upon.
Now, the truth about depositions, they are EXPENSIVE! This is a tool that costs the client money that is unavoidable. The costs of the attendance of the court reporter, the costs of the transcript and the costs of the presence of their attorney during the deposition. In some cases, this is used to “bleed” the opposing party of money they need to for the costs of their legal representation. While this not always the case, it has been done. The usefulness of a deposition is countless. Many times during depositions discovery of evidence comes to light that is very helpful in cases. Plus it gives the attorney a much needed view of the opposing party’s reaction to certain questions. It is very difficult for people to contain their emotions which will give the attorney information on their “hot spots.”
At trial a deposition transcript may be used as impeachment evidence and to refresh a person’s memory. There are many uses but these seem most prevalent. Along with the added information on how the person may behave and react to certain topics, an attorney has the transcript of the deposition in their tool bag.
In my practice, I try to limit the amount of expense in every case. Depositions are a tool that is used only after every other effort at gaining the information has been exhausted. With that said, if the opposing party requests a deposition as a matter of right, it must be done.
If you need help with a family law matter including divorce, child custody, child support, adoptions, or alimony cases, call us today 205-623-1001.