Q. What is a deposition in a California family law or divorce case and
what is it used for?
Depositions are hands down the most direct and cost-effective way to move
your case forward and expose the other side for the liars they may be!
They may be taken of parties, family members, employers, witnesses and
anybody else who has relevant evidence to prevent or destroy.
What Is a Deposition Used For?
A "deposition" consists of direct or cross-examination of a party
or a witness to any divorce or family law proceeding which is preserved
by a court reporter and sometimes a videographer as well.
C.C.P. section 2025.010. In most cases a written transcript (i.e., a deposition transcript) is
a sufficient record of the interrogation.
In a deposition the questioner (either a lawyer or unrepresented party
in pro per) asks oral questions (to be contrasted with written questions
contained in form and special interrogatories) and receives immediate
responses from the witness, after the deponent has been placed under oath
in the same manner as a witness testifying live before a Judge would be
placed under oath. This allows you to explore all of the facts, evidence,
writings, and other information that a person claims supports their testimony
- indeed, a principal use depositions is to ask the difficult questions
as to which you fear the potential answers because it is better to find
out those answers before you are before a Judge trying to deal with the
zinger of an answer to an offhand question you now wished you hadn't asked.
Depositions lock in story lines, the supposed evidentiary basis for them,
and they allow you to gather information early on and in detail at little
risk to your side of the story (used unskillfully, they may tip your hand).
Sometimes - particularly where the testifying person's demeanor, attitude
or behavior is important to convey to a trier of fact at a later time
- having the process recorded on a video CD may also be useful, because
a written transcript lacks the rich dimensionality of vocal tones and
behavioral cues that we have all learned to interpret when we evaluate
people's stories. These cues are why actual testimony is so important
in family law cases in the sense that judges dealing with important issues
often wish to actually hear and see a witness answer important questions
before deciding them on the merits. But video taped depositions are cumbersome
to present in the courtroom, which may lack the time or equipment to wade
through the material. Still, if you can afford the fees for a video too,
and can articulate a good reason for videoing the deposition it cannot
hurt to do this as well (imagine the impact of the tone of voice of an
obstreperous attorney or bitter litigant upon a Judge who otherwise may
not get how uncivil someone at the deposition behaved just from reading
Depositions Are Exactly Like Testimony In the Courtroom
A deposition excerpt can be quoted, excised, or referred to in a relatively
simple pleading filed in the proceedings and in my experience Courts take
seriously what the other side has stated in deposition. Truly a deposition
taken by an experienced attorney can be devastating to a party's position
or case on any given matter.
Most family law and divorce cases never actually get tried to a judge
in the sense of the taking of live testimony. Instead, many issues and
especially those which result in "temporary" orders are heard
by the Court in the form of declarations which are also under oath. The
reality is that many cases end before trial, whether by way of settlement
or unfavorable interim rulings that never essentially get challenged later.
Hence, very often a Family Law Judge or Family Law Commissioner's
rulings on an affidavit and argument of counsel or an unrepresented party
become the last word on the dispute. Perhaps surprisingly, this can render
taking depositions early on in a child custody, move-away, or support
case vastly more important and beneficial rather than the reverse.
This is because one of the obvious problems with declarations (an affidavit
is essentially the same thing) is that the party who has drafted it usually
just presents the information they claim to be true or would like the
Court to consider - and you cannot cross examine a written declaration
on the fly. To the extent that courts very often render decisions based
upon declarations in Order to Show Cause and Notice of Motion formats
and proceedings, these declarations go unchallenged from an evidentiary
point of view. The unfortunate fact is that most family court decisions
are based upon opinion and argument masquerading as "evidence".
Testimonial evidence comes in the form of statements and conclusions made
under oath which have been tested for accuracy by questioning the underlying
basis of a statement or assertion of "fact". Yet, lawyers and
sophisticated self represented parties are never called upon to deliver
the experiential or observational basis for these conclusions, and busy
courts too often assume an argument to be fact if they hear it repeated
If you have had a motion or RFO filed against you, taking a deposition
(particularly of the other litigant) before you file your responsive pleadings,
and attaching portions of the deposition transcript to evidence your points
and defenses, can be a really good idea. HOWEVER, you typically only get
to take one deposition in a dissolution proceeding (although the other
side may agree to 'limited scope' depositions and so you may be
able to take a series of depositions on different subjects); if you are
not involved in a dissolution or legal separation proceeding per se, but
instead for instance a post-judgment move-away Petition or some other
post-Judgment proceeding, you probably get to take one in each such proceeding
as long as they are discrete proceedings.
Depositions Do Require Skillfulness
At the same time, in my experience an unrepresented party is not going
to do a good job in taking a deposition, especially if the other party
has an attorney who is present to object.
Indeed, if you are an unrepresented party whose deposition is about to
be taken by an attorney you are being set up for disaster no matter how
smart or clever you are or think you are. The good news is that it also my experience that only seasoned trial
attorneys understand how to get a good deposition from the other side
(especially where the other side's attorney is a professional), or
how to protect their clients from being the witness in a bad deposition.
A person who hasn't developed tons of examination skills before a
jury (which aren't available in family law cases, but is part of any
trained attorney's repertoire in civil matters) or trial skills before
a judge in many lengthy trials generally doesn't have a sense of what
can be accomplished through deposition. It is only because so many family
law cases are decided on argument at the temporary stage of the proceedings
that a vast number of the family law attorneys practicing today have a
business practice at all - these same lawyers may or may not have a clue
what to do in the heat of the action, whether in deposition or when examining
witnesses before a judge.
Additionally, without real life experience with the California Evidence
Code lawyers and unrepresented parties often don't know how to handle
bogus objections or when to appropriately refuse to answer a question
or otherwise to "protect the record" by themselves objecting.
It is fun to watch how attorneys respond who really don't know whether
they can or should have objected, or not.
Entire depositions are rarely, rarely read by the Court - and a party
who gives self-serving testimony in answer to a question is entitled to
toss the transcript at the Court and say "here, you read it."
This is a major reason why they are so effective as defensive tools. Instead,
they are excerpted or they are used to confront live testimony from a
witness on the stand with prior inconsistent testimony obtained in deposition.
Okay, enough for now on this topic. I will revisit this subject in more
detail at a later date as time allows. There is quite a bit more to say.
For instance, no Notice of Deposition should ever be sent without an accompanying
Request to Produce Documents.
In the meantime, asking a potential lawyer you might hire what their experience
is may be awkward, but at 30 years of practice I urge you to get a sense
of how proficient any attorney is before starting on a path that is so
very important to you and the lives of those whom you love.
Here are more articles about depositions in California divorce and family
Thurman W. Arnold III