James J. Harrington, III, an outstanding family lawyer from Novi, Michigan offers this valuable advice about discovery depositions in family law cases:
Depositions are certainly not required in every case or even most cases or even 70% of cases… however as to the remainder they are absolutely critical, mandated, and – arguably – the standard of practice requires them.
Before noticing a Deposition, I consider on a case by case basis the following:
- What is the likelihood of a case going to trial? No case should ever be tried without your deposing the other side or their key witness(es).
- What is the likelihood of “fraud” occurring with respect to income or assets which might need to be addressed in further discovery or even post Judgment.
- If opposing counsel or opposing party is “blocking” on settlement or addressing significant issues, depositions are a wonderful opportunity to get all 4 people together at the same time and make some meaningful practice.
- How are both opposing counsel and opposing party going to handle themselves at trial? Don’t you want to know what “makes them tick” so you can deal with them in court ?
- Are the “stakes” high enough? It would be very hard to imagine a Custody case or a 100-mile-rule case where depositions would not be critical.
For new or litigation shy attorneys, depositions are superb trial practice. All a trial is … is just a series of deposition examinations strung together… feeling comfortable with deposition practice is a critical and key component to feeling comfortable at trial.
There is no “one size fits all” rationale for depositions, but they can also be a terrific means of (a) dealing with a bullying opposing or their abusive client (b) neutralizing the impact of opposing counsel in crafting all of client’s responses to interrogatories… especially when you have some great info/evidence they may not know about prior to the deposition.
The most recent deposition I took I had the guy cold on earning “cash” of $130,000 in “side jobs that never showed up on the tax returns or even the family joint bank accounts. As soon as the guy “took the 5th amendment” and refused to testify on the printouts from his own computer, the case was over. He couldn’t possibly go to Trial and have the Judge address this hidden income and his taking the 5th.
If your client cannot handle the $$ for a couple of hours of your time and somewhere between $300 to $500 for the deposition transcript, you have to give long and serious consideration about your case selection. On the other hand, your comprehensive fee agreement should have specifically discussed client liability for the costs and fees associated with depositions.
Also, a thorough and comprehensive “duces tecum” [list of documents required to be produced] attached to the Deposition Notice can be a very valuable tactical gambit. It can penalize the lazy or inept opposing counsel who hasn’t thought through his/her case, especially where you anticipate that he/she will try to submit a ton of last minute “new” exhibits at or just before Trial. Requiring opposing counsel/party to produce their stuff at deposition, and examining them both on what they did … and more importantly, did not… produce at deposition can be very rewarding later on in a case.
Finally, if a deposition is worth taking, it’s worth ordering the transcript. You will also find that when you cultivate a consistent professional relationship with a court reporter and are a “regular” who pays like clock work, you will get truly amazing turn around time with expedited excerpts or full transcripts.
Depositions could be the subject of a half-day seminar or more. There are terrific resources on this specific subject. A simple e post is inadequate to deal with the many many issues. Liz Sadowski and other experienced family lawyers I regularly see at family law seminars also encourage the use of depositions in the right case at the right time. I believe that they are absolutely "spot on."
Thanks to Jim Harrington for making his suggestions available.