A deposition is a commonly used discovery device in many divorce cases. Many people are nervous or even afraid of being deposed. Follow these nine tips to help relieve some of the anxiety surrounding a deposition.
A deposition calls for a witness (often, but not always, one of the parties) to give oral testimony under oath before trial. Depositions are conducted in front of a court reporter and are then reduced to a transcript. Transcripts are often admitted into evidence at trial, where they may be used to either strengthen or dispute the testimony offered.
As a family law attorney, I use depositions for three purposes:
Discover relevant information.
Observe the demeanor, poise, and memory of the deponent (the person being deposed).
As I meander around the Internet reading tweets and posts about divorce, I realize there is a great misunderstanding on the differences between litigated divorces and mediated divorces.
Most divorces are resolved by negotiation of one kind or another; in fact, very few divorces go to trial. Mediation is simply a form of negotiation. It is a more intense form, if you will, as there is a neutral third party who can keep the combatants on track. For mediation to work there must be a level playing field, in terms of information, understanding and emotional equality between the divorcing spouses.
Generally litigation techniques (discovery, subpoenas and depositions) are necessary if one party has all the financial knowledge and the finances are complicated.
It makes a great deal of sense to engage in some limited discovery, including valuations, and then once all the cards are on the table, mediate. Mediation can happen with or without the attorneys in the room, although sometimes it’s best to have the attorneys involved as that can temper emotional inequality. The Courts strongly encourage it, but you need to know what the marital estate is before you begin.
Absent a trial (and at least 95% of all divorce cases settle without one) a deposition is often the only time the parties to a divorce testify under oath. It is one of the most effective tools the lawyers have, both to find out what has really gone on and to discover what kind of a witness their client and the other side will be. Any good attorney will spend time with the client preparing him for the deposition. A while ago I came across a really good description in the Missouri Divorce & Family Law Blog.
Then yesterday a buddy of mine sent me the following insane video as to what not to do at a deposition. It rates as the most incredible piece of bad lawyering I’ve ever seen.
Discovery is the point in the process where the attorneys, using various legal tools, are able to quantify just what is going on financially, as well as with other concerns, such as custody or parenting issues.
The first financial discovery tools are the Rule 410 production and the financial statement, both of which are described in a prior post. Once those have been exchanged, the attorneys usually move on to Requests for Production of Documents (RPD) which are expansions on the Rule 410 production. If yours is a case where there are business valuation issues or a need for a forensic accountant (more on those in later posts) then those experts will chime in here with a request for the documents they will need.
At the same time as the RPD is sent out, the attorneys often will exchange Interrogatories, which are a limited series of questions to be answered under oath. Generally the lawyers also ask what are called Expert Interrogatories, where we request information from the experts and their reports so that both sides know what all of the valuations are. These experts can range from real estate appraisers, business … Keep reading