A deposition occurs when a party or witness is orally questioned by an attorney, under oath, outside the courtroom. It is a form of pretrial discovery that allows one of the parties to obtain information to evaluate and prepare the case. Each party has a right to discovery of information from the other, and the deposition is the most direct, immediate way to obtain it. The deposition usually occurs at one of the attorneys’ offices, or perhaps a rented conference room. Only the lawyers, the parties, and the witness are present, along with a court reporter. The judge is not present. The court reporter records the exact words of the lawyer and witness (deponent) in a transcript, which is made available to the parties and lawyers. The transcript is then used at the later trial to confirm or impeach that witness’ trial testimony. The lawyer who requested the deposition asks questions of the witness, and the witness answers. The witness’ attorney can object to questions, but objections are far more limited than at trial. This is because the “trial” rules of evidence, hearsay for example, do not really apply. In general, as long as the question is remotely relevant, or does not request confidential information, it must be answered. Depositions can last from an hour up to a few days, but usually (at least in family law) only a few hours.
My clients usually view depositions as an attack on them and their position. Partly, that is true, since the opposing lawyer looks for information to undermine my client’s case, and support his client. However, I tend to view the deposition as an opportunity for my client to present her case, become comfortable with testifying, and present as a good witness. A client who gives clear, convincing answers at a deposition makes her case stronger by giving a preview of her testimony at trial. The opposing attorney, confronted with a prepared and convincing witness, will likely consider settlement more favorably. The client who performs well will feel more confident in her case and ability as a witness. A client who has some difficulty now knows what to expect and can improve her performance.
Depositions are rather rare in divorce or other family cases. In my practice as a family lawyer, depositions are more common in Dane County than surrounding counties like Sauk, Columbia, or Juneau. They are also expensive, both in fees to the court reporter and attorney time. However, because depositions can be turning points in a divorce case, they require a great deal of attention and preparation. It is vital that my client is prepared to answer difficult questions and understands her case. I have that discussion and preparation with the client throughout the case, and in a final session just prior to the deposition. I find that it is the way to ease my client’s worries and advance her case. Whether the matter involves divorce, paternity, guardianship, or support matters, depositions can be extremely effective in obtaining my client’s goals.
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