Family Law Depositions

Family Law Depositions

Q & A

What is a deposition?

A deposition is your opportunity to ask the other party questions under oath in real time. Generally, a deposition is taken in front of a court reporter who swears in the witness and transcribes everything said at the deposition. After the deposition, the court reporter will give you the opportunity to purchase the deposition transcript, which you can then use in Court as an exhibit.

How long can a deposition last?

Generally speaking, a deposition can last up to four hours.

There are only two ways a deposition can be taken for longer than four hours:

  • (1) by stipulation (agreement) of the parties; or
  • (2) by motion demonstrating “good cause” for an extended period of time.
  • In most cases, four hours will be more than sufficient. Remember that the majority of family court cases are set for, at most, a three-hour trial, during which time both parties have to present their case. As a result, four hours of questioning a single witness is very generous.  As an example of a case where more time might be needed, consider taking the deposition of an expert witness regarding his report valuing the parties’ community interest in a very lucrative and complex business venture.

What does a deposition cost?

The cost of a deposition is directly dependent on the court reporting company used because each company charges different rates. Generally speaking, you are paying for your attorney’s time (including preparation), the court reporter’s time, and paying a per deposition page rate for transcription. The per page rate often varies depending on how quickly you need the transcript. For example, a 100-page transcript might cost $3/page if due in ten days, but $7/page if due in 24 hours.  As a result, with proper planning, you can greatly reduce the overall cost of taking a deposition.

How do I schedule a deposition?

Scheduling a deposition requires sending the other party a Notice of Deposition by Oral Examination, detailing the place, time and date of the deposition. The best practice is to reach out to the opposing counsel/opposing party and the court reporter to inquire about availability prior to preparing the Notice of Deposition. That way, you can avoid any scheduling issues if a particular date or time does not work for everyone.

How much notice do I have to give the other party?

Unless otherwise agreed, or ordered by the Court, you must give at least ten business days’ notice prior to scheduling the deposition. If you are scheduling a deposition right at the ten-day mark, it is important to follow up with the deponent (person you are deposing) to confirm availability.

What if the other party does not show up to the deposition?

If the other party does not show up and you gave proper notice, the court reporter (for a small fee) will prepare an Affidavit of Non-Appearance, which you can use to seek sanctions/reimbursement against the other party. If taking the witness’s deposition prior to trial is crucial to the case, you may want to ask to continue trial until the deposition can be taken. Before you file for a continuance or sanctions, double-check to confirm you followed the proper procedures.

Can I ask the other party to bring documents with them to the deposition?

Absolutely. You can require the other party to bring certain documents to the deposition with them by preparing a subpoena duces tecum listing the desired documents and attaching it to the Notice of Deposition. If you are missing any important documentation from the deponent, we highly recommend doing this. Not only does it ensure that you get the documents you need, but it also gives you the opportunity to ask questions about those documents in real time.

What kinds of questions can I ask during a deposition?

As long you are asking the questions in good faith, and in a manner that is professional, you can pretty much ask about anything that might be relevant. It is important to note that the other party may make individual objections to specific questions after the fact once you try to enter the deposition into evidence.

How can a deposition help me settle?

Most people are aware that depositions can be very helpful when preparing for trial, but few people realize they can actually facilitate settlement as well. Depositions can serve as a preview for trial, so to speak, giving both parties a look at their strengths or weaknesses. For example, if you are able to run circles around the other party during your deposition, they may see the writing on the wall and be more motivated to settle. Conversely, if the other party does an excellent job answering all of your questions, and it is clear they will be an effective witness at trial, you may be more inclined to consider settling.

How can a deposition help me at trial?

Depositions can help you or your attorney prepare for trial in a number of ways:

  • Discovery: Depositions are a great way to figure out what documents or information you are missing from the other party. For example, after any question you can ask, “Do you have any proof of that?” If they answer, “yes,” then you can follow up with questions that will allow you to track down the proof. On the other hand, if they answer “no,” then you know that particular issue will boil down to the witness’s credibility. Furthermore, if the witness attempts to produce proof at a later date, you may have grounds to exclude the proof from evidence.
  • Locking Down Facts/Positions: Because a deposition is taken under oath, it is a great opportunity to lock down the other party’s positions or version of facts for particular issues. Few deponents prepare for a deposition the way they should prepare for trial. As a result, often when you ask them a question they really are not sure about, but should be, they will give an overconfident answer that you can later use against them at trial. For example, if you ask a party what amount of Child Support they are requesting per month, most people will not know the correct amount under the guidelines and will instead come up with an arbitrary number or range.
  • Cross-Examination Dry Run: At trial, the general rule is that you do not want to ask a hostile (non-friendly) witness a question you do not already know the answer to. Taking the other party’s deposition allows you to ask the more open-ended questions you might typically avoid at trial because you don’t know the answer. There is little harm in asking an open-ended question during a deposition because you do not have to use that part of the deposition at trial if you don’t like the answer. On the other hand, if they answer in a way that is favorable to your client, you can feel safe asking the same question on cross-examination at trial. If they try to change their answer at trial, you can impeach (attack their credibility) by pointing out how they answered differently at the deposition.