Family Law Discovery: Depositions

Depositions get little used in this area for family law cases. I see them more often in my business cases where the clients are more able to afford the costs of a deposition.

What are depositions? Depositions are a witness being put under oath and asked questions by the lawyers in front of a court reporter. The court reporter later creates a transcript of the questions and answers which can then be used at a hearing.

Depositions have two purposes. The first being the discovery of information - depositions are part of the discovery tools. (See Indiana Trial Rules 30 - 32). However, I think the other purpose is of more importance: locking in the witness' testimony before a hearing. Indiana Trial Rule 32 sets out all the uses of a deposition at trial, but I think most of us think far beyond 32(A)(1):

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

Updates in Michigan Family Law has a list of when to use depositions in Depositions | Helpful tool in some divorces cases. I find myself in agreement with the list as being the ideal. Too bad, the ideal is not often achievable.

What is the likelihood of a case going to trial? No case should ever be tried without your deposing the other side or their key witness(es).

I cannot remember the last time that I had a deposition in a family law case that went to a hearing. Certainly more than fifteen years. I have also lost track of the number of divorces and support hearings and custody cases that went to trial in the past twenty years. I cannot think of better indication of our local economy than this - low asset, middling income divorces.


1. What is the likelihood of “fraud” occurring with respect to income or assets which might need to be addressed in further discovery or even post Judgment.

I worked with another lawyer several years ago on a big asset case. Assets were being questioned and the assets were large. Depositions were conducted but this case was the exception to our local norm of poorly heeled divorce clients.


2. If opposing counsel or opposing party is “blocking” on settlement or addressing significant issues, depositions are a wonderful opportunity to get all 4 people together at the same time and make some meaningful practice.

This point is the only one I find myself disagreeing with. I have also found that setting the matter for hearing has the same effect. I know one attorney known for stalling a case, scheduling a deposition will make little difference to his tactics. Appearing before a judge does sharpen one's mind.


3. How are both opposing counsel and opposing party going to handle themselves at trial? Don’t you want to know what “makes them tick” so you can deal with them in court ?

Here is one I never thought of, and it does give me something to think about. I have gotten used to most of my local opponents, that I can prepare my clients for cross-examination.


4. Are the “stakes” high enough? It would be very hard to imagine a Custody case or a 100-mile-rule case where depositions would not be critical.
   

This last one asks the important question. I would add another question (in Interrogatories) about the grounds for the parties' position on custody. Then I would consider the need for a deposition. I am hard-pressed to see where a deposition would have changed the outcome of but one custody hearing in the past twenty years. I also cannot think of a case where the opposing parties' Interrogatory answers did not give us sufficient information for trying the case.

Yet, I tempted to believe that a deposition might lead to a shorter hearing time for our custody hearings. Not by themselves but in conjunction with a Request for Admissions. This is a thought that came to me as I sit here writing and needs some further thought.

Depositions might have more use with Indiana's relocation statute. As I read the statute and the Baxendale case, factual details will be at the heart of these cases and less of opinions about what is the child's best interests.

I do not want to let anyone think that depositions are not useful tools. Ms. Hannah makes the same point in a different way:

Depositions are certainly not required in every case or even most cases or even 70% of cases… however as to the remainder they are absolutely critical, mandated, and – arguably – the standard of practice requires them.

My fee agreements include notice to the client that they may be necessary. However, they are a tool and one needs to know when and how to properly use a tool.