Coparent Academy Podcast
Lifechanging Coparenting
Coparent Academy Podcast
#181 - Depositions: The Most Important Discovery Tool in Family Law
Written discovery is slow, filtered, and easily obstructed. Learn why a deposition—a face-to-face, real-time interview under oath—is the most important tool in preparing for a custody trial. Discover the strategic value of essentially unlimited follow-up questions, reasons why you may want a videographer, and the attorney's ethical duty to uncover all facts, both good and bad, about both parents to help the court determine what's in the child's best interest.
Hey, I'm Ron Gordon, a family law attorney, and I want to talk with you today about depositions in family law cases. A lot of people think that depositions are kind of overkill in family law, and I want to explain why that's not the case. Depositions are actually, I think, the most important discovery tool in family law cases. Here's why. To help understand it, we have to put it into context. So there's different kinds of discovery. There's also written discovery between the parties, there's written discovery to third parties, and then we have the depositions. So written discovery between the parties falls into three categories. You have request for admissions, interrogatories, and request for production of documents. Admissions are asking for the person who's answering them to either admit or deny certain facts. Interrogatories are questions that they want answered that are more complicated. So maybe a description of family history or identification of bank accounts or what is your normal daily schedule for work and for home. Things to take a little bit more than admit or deny. Requests for production of documents are asking for documents, recordings, or the inspection of other tangible things. It could be inspection of a vehicle, it could be inspection of a computer or of a home, whatever it is. Now, a reason why depositions are better than the written discovery is because you're going to get something like 30 requests for admissions, interrogatories, and requests for production of documents. And the answers that you get back from those are not going to be the answers really from the other parent to you. It's going to be massaged by their attorney. They're not just going to have them write out their answers without any sort of impact from the attorney and send them on. There are going to be lots of objections that are really ridiculous objections, honestly, that if you went to litigate about it, you would wind up getting the answer, but it's going to cost you a lot of money. And so the problem with written discovery requests is that you're not actually getting straight from the horse's mouth information, and you're getting a lot of obstructionism thrown in the way. Plus, it can take a lot longer. You send out the written discovery requests, they will have 30 days regardless to answer them. Very often they're not going to answer them timely or they're going to answer them incompletely. And then you have to go through this whole rigmarole to try to compel the responses, and it winds up costing a ton of money. Now, one of the things about depositions is people argue that it's a waste of money. It costs too much. Not really. Not when you consider the time of writing out the discovery requests, unless you just use the same ones every time, which is not a good practice. And then having the attorney go through them to respond to them, probably multiple iterations, and then dealing with motions to compel. Now I said that there are also written discovery requests of third parties, and that is what's known as a subpoena ducasticum. You send, for example, to a bank or to an employer a request for records that they hold that are relevant to the parties. You can also send out, if you want, a subpoena ducasticum a testificandum, which is I want your documents and I want you to come in and testify about them. So those are the written discovery requests that you're going to see in a family law case. Let's talk about depositions now. For a deposition, the attorneys and the clients are going to meet at the same place, one of the attorney's offices typically, although I've done it at courthouses, for example. And you're going to have a court reporter present. That court reporter is going to take under oath everything that is said. Sometimes, depending on the situation, I'll also have a videographer present, so it'll be a video deposition. I've been accused by some of using a video deposition too much, but video depositions are an important tool. If you have an opponent party, if the other parent is pretty clearly not going to be cooperative, then having a videographer can accomplish one of two things. One, knowing that they're on video, they're actually going to be more cooperative, which gets you the information you need. Or if they're not cooperative, now you have the video of them being not cooperative. That's extremely helpful because the written record of the answers does not convey certain things. Also, if a person is aggressive in their tone but not in their words, that won't be captured. If there are tremendous pauses as the person is clearly trying to make up some response, that's not well captured in a transcript. So having a videographer come and take the recording of the deposition can be a powerful tool in the right circumstances. And generally what I find is it costs another$600 to$1,000. Depending on the circumstance, having that videographer present for the cost of$600 to$1,000 is completely worth it because it may give you the evidence that you need to make or break the case. Totally worth it when you compare that expense to the cost of attorney's time trying to generate the same kind of evidence. So a benefit of the deposition is that it is longer. So remember that you had up to 30 requests for admissions, 30 interrogatories, 30 requests for production of documents. When you are doing a deposition, you have a time limit. And typically that time limit is going to be a maximum of six hours without special leave of the court. Now, normally it's not going to take anywhere near six hours to do a deposition in the family law case, unless there's just tons of issues. Another benefit is that typically depositions are going to be taken under certain rules. And the rules are, unless you ask an especially egregious question or a question that is going to just be subject to a privilege, like attorney client privilege, for example, then the person is going to answer the question. Now, the opposing attorney may object, but typically they're going to be objections as to form only. An example of an objection as to form would be maybe a compound question. A compound question is unhelpful because you can't really tell what you're doing with the answer. You don't know which part the answer went with. Or if you have a question that's just ambiguous or otherwise confusing, that's another example for objecting to the form of a question. So now you have the opportunity to ask not 30 requests permissions or 30 interrogatories, but hundreds of questions. And the responses that you get are not going to be coming through a filter of the attorney trying to make sure that the answer is being done perfectly correctly with all the legal nuance. It's going to be coming straight from the other parent's mouth in real time. And if you're listening, then you have the opportunity to answer a lot of follow-up questions that really get to the heart of the situation. You know, when people are telling basic facts, there's not a lot of adjectives and adverbs that get thrown in there. It's the adjectives and adverbs that people include in their testimony are editorializations, essentially their opinions on the fact that they're presenting. And so if you listen closely to those adjectives and adverbs, then you can ask follow-up questions that get to what that opinion is, what that editorialization is on the facts. Doing that gets you to what the person really thinks. And if you ask comprehensive questions, now you know everything that person thinks about all of the topics that are relevant to the case. You're ready for trial at that point once you've deposed the people that you need to depose. And the questions that you need to ask aren't just basic vanilla questions. I always take the opportunity to inquire of the other parent all of the worst possible things about my client that could even potentially be true. So I'll ask, for example, uh, has my client ever sexually abused you? Has my client ever sexually abused the children? Has my client ever physically abused you or physically abused any child? You know, has my client ever neglected the children in any way? I want to find out exactly what's going on. Does my client have a history of drug use that we should be aware of? I want to know every single thing about both parents and everyone in that household so that we can make a decision as a court system that is going to be best for everybody. There have been multiple times when, because of a deposition, I've learned that my client's the problem. Right? That's horrible. I hate to find out that my client's the problem, but it's also wonderful because now it gives me the opportunity to address those deficits. There's a child, at least one child in these custody cases, who currently, if that's the case, has a parent who's a problem, who is not a healthy parent for them. If I'm able to find out early that that's an issue, then I'm able to help rehabilitate my client, to help get them the services that they need, to help confront them with their behaviors, if their behaviors are truly inappropriate. So that by the time we're done, we have a parent who was not a healthy parent before to be around that child. And now that parent is a healthy parent. That parent is a beneficial parent. That parent can add to the child's life. That's an additive process if you do it correctly. Sometimes attorneys will go into depositions and try to limit what the other person says and won't let them talk about all of the things that are good and bad. That's not the purpose of a deposition. The purpose of the deposition is to find out the truth on all sides. Everything good, everything bad. That gives you the chance to fix the bad, to support the good, and to leave the child with two parents, hopefully, who are healthy and prepared to be a parent. I always consider the fact that even if I have the quote-unquote good parent right now, that person could always be hit by a bus. I mean, things happen. There's a universe in which this child will be left without my client who's the good parent, and will be left with this other parent who maybe isn't a good parent right now. It does not help the child to leave that situation intact. That's why I perceive it to be every parent's obligation to do everything they can to help the other parent become a better parent. And part of the litigation process is to identify what those deficiencies are, identify the resources to help address those deficiencies and get that process moving. There is no better tool to get to the truth of the matter in a family law case and to get the services in place that need to be in place to treat issues that arise than a deposition. It's absolutely hands down the best tool. Let me know in the comments if you have any experience with depositions in family law cases. If you did, did it match what I was talking about? If not, how was it different? Do you disagree that depositions should be used in family law cases? I've heard some people say that imposing a deposition in a family law case is a form of litigation abuse because of the expense. But it's truly not. If it's done properly, with the right intentions, of identifying the issues so that they can be fixed, which include issues of coercive control and abuse, then the deposition is actually an incredible tool for justice and for healing. If it's done right. Thank you so much. Hope you have a great day.