Defending the Family Law Deposition: A Study in Preparation

Family Law Deposition Part 2 of 2

February 2012 Bar Bulletin
By Kim Schnuelle and Lisa Dufour

You have just received a notice from opposing counsel setting your client’s family law deposition in two weeks. Your client was very nervous at the temporary order hearing and burst into tears during opposing counsel’s presentation. What can you do to best serve your client at his or her deposition?

As mentioned in part one of this article, depositions are a seriously underutilized discovery tool in most family law cases. The attorney taking the deposition has more than likely thought out his or her deposition strategy. Given that the attorney taking the deposition is seeking to undermine your client’s position and thus strengthen their client’s case, your primary job, as the defending counsel, is to minimize the likelihood of any damaging testimony by your client.

The first step in adequately defending your client at his or her deposition is to prepare your client beforehand. Describe what a deposition consists of and what it may be used for by opposing counsel. Be sure to tell your client that you may object during the deposition and that your objection may stop him or her from having to answer the question.

For example, if your objection is that a question “calls for speculation,” your client may infer that the opposing counsel is asking them to improperly “guess” the answer, at least in part. While your client, with very limited exceptions to be discussed below, must answer the question in spite of the objection, the objection will thus be preserved for trial.

It is also important to advise your client to let you know well in advance of any potentially damaging statements, events or evidence that have not been previously disclosed to you, as it is essential that you know of these facts prior to them being raised in the deposition. Further, your client should be told to always tell the truth, but that, at the same time, their answers should be brief and only responsive to the question asked. A family law deposition is not a time to volunteer new information to the deposing attorney or to offer your client’s theory as to why the opposing party is acting crazy.

You should also advise your client that if a question is confusing or difficult to understand, they should always say so to opposing counsel and ask that it be rephrased in a manner that they can understand. In addition, your client should be reminded that rarely does a person behave consistently 100% of the time and so the use of phrases such as “I never” or “I always” may come back to haunt them at trial.

Under CR 32, deposition answers can be used to impeach a witness at trial. The best advice is to instruct your client to think about each question before answering. They do not have to answer immediately and it is perfectly fine to wait until they have their thoughts together before answering.

Also be sure to give your client permission to say “I do not know” if they truly do not know an answer. While frequently people think they have to answer every question asked of them, they do not have to do so. As such, it is extremely important that your client knows they can just simply respond: “I do not recall,” or “I do not know.” No explanation is needed beyond that statement and they should never “guess” or “assume” an answer.

You should also advise your client that he or she may be presented with documents as exhibits during the deposition. When this occurs, advise your client that you should be allowed a moment to review the document before they answer any question regarding the exhibit. If it is a “surprise” document that you have not seen before, you may ask for a short break to better review the new evidence.

Finally, it is important to advise your client that if they wish to speak with you privately anytime during the deposition, they must answer any already asked questions before such a break in testimony will be allowed. Because you are not allowed to “coach” your client’s testimony, you cannot ask for a break strictly to confer with your client. Of course, it is appropriate to ask for a bathroom break between questions as necessary, but it is not appropriate to continually ask for breaks.

Now that your client knows what to expect at the deposition, as a final piece of advice suggest that they get a good night’s sleep beforehand and bring some snack food in case they get hungry during the deposition itself. A deposition can be wearying enough for a client. There is no need to add hunger to the mix of their stress.

In addition to preparing your client, you should also prepare yourself for the upcoming deposition. If you are new to deposition practice, review the evidentiary rules that cover deposition practice. Be sure to pay special attention to the types of objections that, if not made at the deposition, are deemed waived for trial purposes.

Typically these types of objections involve the form of the specific question (e.g., the question is vague or argumentative), but they can also involve defects in the administered oath at deposition, misconduct of the parties or objections regarding the right of a third party to be present at the deposition. Some objections that you can make about the form of the question are: vague; compound; argumentative; asked and answered; assumes facts not in evidence; misstates the evidence or misstates the witness’s testimony; leading; lacks a question; and lacks foundation. You can also object to questions that ask for hearsay or irrelevant evidence.

It is also sound practice to review the case file in order to anticipate what opposing counsel’s strategy may be and what topics are likely to be explored at the deposition. An important piece of information to have with you is the assigned judge’s name and phone number in case there is a problem with the deposition and you need to call the court.

At the deposition itself, be sure to pay very careful attention to each question, listening both for content and tone. A well-timed objection is the primary tool of the defending attorney, but it is a tool to be used judiciously and with a cutting accuracy.

Even if a question merits an objection under the evidentiary rules, you may not want to formally object as doing so may hurt your case at trial. For example, an objection may serve to create a “red flag” for opposing counsel, especially if you have remained relatively silent for a large portion of the deposition only to suddenly raise a flurry of objections during one line of questioning.

In addition, excessive objections may cause you to lose credibility with the trial judge at a later date on a motion for protective order or if the deposition transcript is entered into evidence. Further, your objections, if not judiciously planned, may rattle your client either by interrupting his or her thought process or by inadvertently suggesting that he or she is “making a mistake” in their testimony.

As mentioned above, absent compelling circumstances, even in the face of an objection, the deponent must still answer the question. The two major exceptions to this general rule concern circumstances where answering a question would violate a privilege (such as the attorney-client privilege) and where the defending attorney has made a decision to seek a protective order to prevent the compelled answer. In both circumstances, the defending attorney should instruct the client not to answer the question and should state on the record the reason for this instruction.

Deposition questions give very important information about the other side’s theory of the case. You should be able to determine their strong points and weak points by the topic areas of their questions. In order to maximize your subsequent analysis of their case, make notes as questions are being asked. You may need to follow up on some questions at a later point in the deposition.

For example, sometimes the client was not able to fully explain the answer to a question and the full answer makes a difference to the case. Alternatively, perhaps the client became confused and answered a question incorrectly. You will be able to supplement the record by asking questions of your client after the direct deposition questions are completed.

Since the deposition may last a full day (or even several days), it is important to take notes so that you can clarify or explain each answer that may be potentially damaging at trial. The attorney conducting the deposition may very well ask for a very short “yes” or “no” answer even though for some questions the true and correct answer is “yes, but …” or “no, except for….” You will want your client to explain all the details about the alleged incident in response to your direct questions at the end of the deposition.

Depositions can be expensive and time consuming. If you are involved in a highly litigated and contentious case, the use of depositions can be instrumental in being able to resolve the case through mediation and avoid the further expenses of trial.

A deposition quickly establishes whether or not the person will make a good witness, if they are credible and believable, and able to communicate their position. If your client cannot sit through a private deposition and answer questions, it is highly unlikely that they will be able to testify effectively in open court. This is important to know before going in to mediation and is a very significant consideration when weighing the benefits of a settlement offer.

Sitting through your client’s deposition also gives you time to consider your strategy and the high and low points of the case. Listen to your client testify as if you were the judge — would you believe them and decide in their favor?

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