Don’t Take Deposition Practice Lightly

Family Law Deposition Part 1 of 2
By Kim Schnuelle and Lisa Dufour
First of Two Parts

Depositions remain a seriously underutilized discovery device in the effective family law litigator’s tool box. An effective deposition can destroy party or witness credibility, elicit admissions that seriously undercut or bolster one party’s case, provide a good gauge as to a witness’s composure and effectiveness, and allow for a more accurate analysis of settlement and/or trial strategy.

In this two-part article, the authors will discuss effective deposition techniques, both in taking and defending a deposition, in order to make the most effective use possible of this important discovery method. This month’s column will cover taking an opposing party or witness deposition while the next column in February will discuss defending your client’s or witness’s deposition.

There are several essential components to every effective deposition that are often missed by even experienced family law practitioners. Before one begins, the very first question should be, “Why am I taking this deposition?”

Is it to obtain knowledge (or lack of knowledge) regarding specific facts? Is it to trip up the deponent on the record? Is it to create admissions for trial? Is it to preserve testimony of a witness not expected to be available at trial?

Your reason for taking the deposition is essential in tailoring your questions to achieve the maximum benefit from the deposition for your client.

Once your goal is ascertained, the next step is to review the pleadings, previous discovery and case file, and create a rough outline of the topics and questions you want to cover in your deposition. A common beginner’s mistake is to draft a minutely detailed outline that lists each question in full and precise order. Such an outline will not only rob the essential spontaneity from the deposition process, but it may also prevent the questioning attorney from even hearing an admission contrary to interest or a new piece of information that merits further exploration. Experienced attorneys thus create only a rough outline, typically with plenty of space for notes to be taken during the deposition where follow-up topics can be noted.

The next pre-deposition step is to consider the personality and character traits of your deponent. Is your deponent likely to fly off the handle if provoked and make admissions that hurt his or her case? In the alternative, is your deponent likely to be “buttered up” by a friendly and non-threatening questioning approach such that he or she will “forget” that your goal at the deposition is to bolster your client’s case? A thorough analysis of your deponent’s personality will help you choose the best questioning style to reach your determined goals.

At the start of the deposition, it is important to remind the deponent, after they are sworn in, that he or she can stop the deposition (after answering your question) for a break at any time, can ask you to repeat any question they do not understand and can supplement their testimony at any time if they recall specific facts not previously mentioned. By specifically placing these guidelines on the record, you can avoid any subsequent claims that the deponent was pushed too far, didn’t fully understand what was asked or didn’t get a chance to further explain a previous response.

Once questioning begins, it is also important to remember that the entire process is either being transcribed or videotaped. Use simple words and ask short and focused questions. Do not “group” topics but rather ask independent questions on one topic only.

Avoid the use of “negatives,” especially double negatives, in your questioning. Make sure the question is fully answered and on the record. If in doubt, ask the question again.

Do not accept answers that are unresponsive or vague and always keep in mind that “uh huh” does not mean “yes” when read into the court record several months down the road. If the witness appears evasive, specifically note this on the record, explain the problem it creates, and directly ask the witness to answer the question.

If you are using exhibits, be sure to read the exhibit number into the record before providing it to the deponent for identification. If you are not asking the deponent to identify the exhibit, it is also important to read a short description into the record before beginning questions on the exhibit.

As mentioned earlier in this article, a deposition is a fluid process that requires minute attention from the questioning attorney. For this reason, while some experts encourage either an open-ended questioning approach or a “funneling in” approach, the authors argue that both approaches are best for every deposition.

By paying very close attention to not just the deponent’s answers, but also his or her mannerisms, facial expressions and body language while answering, the experienced attorney can gauge when to shift questioning approaches, probe more deeply into a given area or switch to a new topic of questioning entirely.

While some depositions go smoothly and the questioner is able to easily elicit the information needed, others require more intense questioning of the deponent. If you believe that your deponent is lying, for example, it is important to require the deponent to answer every question with great specificity and to ask many follow-up questions. It is also helpful to unsettle the deponent by asking questions out of chronological order and by quickening the pace of your questioning.

On the other hand, if you are presented with a deponent who “knows nothing,” the proper response will depend upon whether you want to establish that the deponent, in fact, does not have any knowledge or whether you want to elicit actual knowledge from a recalcitrant deponent. If you want to establish an absence of knowledge, it is important to put on the record that the deponent’s memory cannot be refreshed and to not accept any equivocal answers, but rather confirm that the deponent has absolutely no recollection.

In contrast, if proof of knowledge is desired, aim your questions at increasing the deponent’s testimony and nailing down the deponent’s claimed absence of knowledge. This can be done by tailoring your questions in a manner to cause the witness to “have to” answer, by pointing out any inconsistencies and illogic in the deponent’s testimony. Or you can confront the deponent directly and state that failure to disclose all knowledge is a violation of the oath they took at the beginning of the deposition and is a ground for sanctions.

Finally, it is a common mistake to end the deposition abruptly and too soon. It is important to spend some time properly ending the deposition. Prior to finishing the deposition, be sure to review your deposition outline to verify that all of the required topics have been covered and any follow-up questions have been answered.

If you are questioning a witness or opposing party, it is best to have your client also attend the deposition. Position your client next to you so the client can write you notes about the testimony as the deposition is unfolding. Your client may be able to let you know when you should follow up and when the client believes the deponent is not fully answering a question or has more information. If your client is not able to be present, be sure to take a break before ending the deposition to call your client and ask if there is anything else that should be asked.

Depositions can be a very effective tool in resolving a family law case. Depositions do take time and can be expensive. However, family law outcomes often hinge on the parties’ belief systems that can only be discovered by an effective deposition.

Depositions also can easily make or break an argument concerning parenting, maintenance or property issues. It is the only way you, as the attorney, can look into the eyes of the other party prior to trial or mediation to determine what their position is on certain issues. In doing so, it is much easier to resolve the issues through mediation or to prepare for trial.

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