During the litigation process, no single aspect may be more valuable than the deposition. Simply speaking, a deposition is when a party or witness answers question on the record and under oath before trial.
The rules governing questions asked during a deposition often mirror the jurisdictions rules for discovery, meaning that you can ask questions about anything that may lead to discoverable information.
Since this is much broader than the questions you are allowed to ask in court, you will be able to explore different topics whose relevance may be questionable.
Although a deposition may not always be appropriate, it can be helpful for questioning the opposing party, expert witnesses and opposing witnesses
The most obvious person to depose is the opposing party. The deposition will give you the opportunity to hear the opposition explain their position in their own words, as well as your first opportunity to observe their body language.
This means that you get to observe how they react to certain questions; what makes them angry, sad or uncomfortable. These observations can often to previously unknown information or show you how to illicit a favorable emotional response on the stand in court.
In addition to observing body language, the deposition is your chance to test the veracity of the opposing party. You can ask questions about allegations or defenses asserted in the initial pleadings and ascertains made during discovery.
Since depositions are on the record, you can use the testimony to show dishonesty. A good practice pointer is to ask similar questions during the trial and try to use the deposition testimony to impeach the opposition.
It is important to depose expert witnesses, if possible, so that you know what they are going to say, giving you the opportunity to prepare your case accordingly.
Deposition is a good chance to decide whether or not an expert witness will be adverse to your case. If the expert is going to be adverse, a deposition is a good opportunity to ask questions about the expert’s methodology and how their particular methodology produced the stated result.
This will allow you to research whether that methodology is widely accepted and helps you decide if you can disprove or combat the methodology / result with your own expert.
Generally, experts are not going to change their testimony from deposition to the trial, so impeachment may be difficult but not impossible.
Opposing witnesses can cause severe problems during trial. Witnesses are supposed to advance your position at trial; so naturally people choose witnesses that they believe will testify favorably.
On top of that, witnesses are generally coached by opposing counsel so that they say exactly what is necessary; regardless of the truth. A deposition can help control a witness who may be prone to lying on the stand.
The deposition is generally your first chance to question an adverse witnesses. With this opportunity, your goal is to ascertain exactly why this witness is important to the opposition.
Once you understand the point of the witness, you can again use the deposition to gauge body language. As stated above, you want to see what will illicit an emotional response.
When asking questions of the witness, be very specific and thorough. Your goal is to impeach the witness at trial, and the way that you accomplish this is to get the witness to contradict him or herself.
Generally, when you ask for a deposition, the opposition will ask to depose you and your witnesses as well. This is a great opportunity to observe how the opposing counsel will approach the issues in your case, how your client will handle the pressure when on the stand and how your witnesses will respond.
Although a deposition is a great tool, the cost must not be ignored.
Depositions are generally very expensive because of the time they take to prepare and execute. In addition to the attorney’s time, a transcriptionist is generally necessary.
However, the potential benefits are difficult to overstate, so be sure to consult your attorney to determine whether it would be worthwhile to request a deposition during your divorce.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”