This Week’s Blog by Christopher J. DeMattie
What is a Deposition?
A Deposition is when you, your spouse, or a third party is placed under oath and asked various questions by an attorney related to your divorce action. The questions and answers are recorded word for word by a stenographer. A transcript of the proceedings is later created. On occasion, a Deposition may also be video recorded if advance notice is provided. Typically, Depositions do not occur at the courthouse, rather they take place at an attorney’s office. All parties and their attorneys are permitted to attend the Deposition, unless there is an order of protection in place.
What is the Purpose of a Deposition?
There are three main reasons to take a Deposition in a divorce case.
First, is to determine facts and to limit surprises at trial. An attorney may have questions about facts in dispute, want to learn the nuances of your spouse’s compensation, or find out if your spouse was having an affair. The last thing you want to happen at trial is to find out a brand new material fact.
Second, is to have a record created under oath that can be used at trial. During a trial, one of the most important issues is a witness’ credibility. By having sworn prior testimony given under oath, an attorney is able to use a Deposition transcript to attack the credibility of a witness by citing to lies, omissions, or material changes in testimony.
Third, is to preserve the testimony of a witness if he or she is unavailable at the time of trial. For example, a witness may live out of state and not be subjected to a trial subpoena, so you have to take the witness’ Deposition out of state in order to use the testimony at trial.
Is a Deposition Required for Divorce?
A Deposition is not a requirement for a divorce in Connecticut. In fact, many cases are resolved without a Deposition being taken. Depositions usually occur if a case is going to trial, however, and might be strategically taken in the beginning of a case to narrow down the issues to help facilitate a settlement.
What Happens During a Deposition?
The first thing that generally happens at a Deposition is everyone is told where to sit. The stenographer will sit at the head of the table and the opposing attorney will sit on one side, the witness will sit directly across from the opposing attorney, and your attorney will be sit next to you on the opposite side of the stenographer. The witness is then given an oath by the stenographer to tell the truth. Once the witness is “sworn in” the opposing attorney will usually go through the ground rules of a Deposition, often in question and answer form to familiarize the witness with the process. The opposing attorney will then question the witness about documents and issues related to the case. A Deposition could take a few minutes or could proceed over the course of multiple days depending on the issues. Once the opposing attorney finishes his or her questions, your attorney will have the opportunity to ask follow up questions, but it is rare to do so because your attorney’s questions may only serve to educate the opposing side about your testimony and extend the Deposition by giving opposing counsel an opportunity for additional follow-up questions. A witness is entitled to take breaks during a Deposition and consult with his or her attorney as long as a question is not pending. In other words, a witness cannot consult with his or her attorney in the middle of a question.
Our lawyers at Broder & Orland LLC have vast experience with Depositions and can effectively help you weigh the options and guide you to the correct decision when it comes to deposing your spouse, as well as preparing our clients in advance of his or her deposition.