DISCOVERY - How are DEPOSITIONS used in California FAMILY LAW and DIVORCE cases? (Part I)

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 the transcript).

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 enough times.

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 law proceedings!

Thurman W. Arnold III