February 2012 Bar Bulletin
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February 2012 Bar Bulletin

Defending the Deposition: A Study in Preparation

By Kim Schnuelle and Lisa Dufour


You have just received a notice from opposing counsel setting your client's deposition in two weeks. Your client was very nervous at the temporary order hearing and burst into tears during opposing counsel's presentation. What can you do to best serve your client at his or her deposition?

As mentioned in part one of this article, depositions are a seriously underutilized discovery tool in most family law cases. The attorney taking the deposition has more than likely thought out his or her deposition strategy. Given that the attorney taking the deposition is seeking to undermine your client's position and thus strengthen their client's case, your primary job, as the defending counsel, is to minimize the likelihood of any damaging testimony by your client.

The first step in adequately defending your client at his or her deposition is to prepare your client beforehand. Describe what a deposition consists of and what it may be used for by opposing counsel. Be sure to tell your client that you may object during the deposition and that your objection may stop him or her from having to answer the question.

For example, if your objection is that a question "calls for speculation," your client may infer that the opposing counsel is asking them to improperly "guess" the answer, at least in part. While your client, with very limited exceptions to be discussed below, must answer the question in spite of the objection, the objection will thus be preserved for trial.

It is also important to advise your client to let you know well in advance of any potentially damaging statements, events or evidence that have not been previously disclosed to you, as it is essential that you know of these facts prior to them being raised in the deposition. Further, your client should be told to always tell the truth, but that, at the same time, their answers should be brief and only responsive to the question asked. A deposition is not a time to volunteer new information to the deposing attorney or to offer your client's theory as to why the opposing party is acting crazy.

You should also advise your client that if a question is confusing or difficult to understand, they should always say so to opposing counsel and ask that it be rephrased in a manner that they can understand. In addition, your client should be reminded that rarely does a person behave consistently 100% of the time and so the use of phrases such as "I never" or "I always" may come back to haunt them at trial.

Under CR 32, deposition answers can be used to impeach a witness at trial. The best advice is to instruct your client to think about each question before answering. They do not have to answer immediately and it is perfectly fine to wait until they have their thoughts together before answering.

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