What Is a Deposition and Is It Really Necessary?

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David’s Divorce Dictionary: D is for Deposition

What Is a Deposition?

A deposition is a legal procedure conducted at the office of the opposing attorney where the client is asked a series of questions, under pains and penalties of perjury, for an indefinite time period; and is attended by the client’s attorney, the client’s spouse, and a court stenographer (who transcribes the entire proceeding).

On an emotional level, a deposition is a lot of things:

  • Nerve-wracking
  • Intimidating
  • Confusing
  • Aggravating
  • Wasteful (of time & money)
  • Fortifying
  • Liberating
  • Validating
  • Some of all of the above

What Is the Purpose of a Deposition?

Depositions happen only in litigated cases – they are not part of a mediation or collaborative case. They may be the product of a failure to settle a case or there may be a linchpin to settling a case. In other words, they can be a threat that motivates a client to settle (for fear of having something exposed at deposition, or for fear of the expense and emotional toll).

Or they can be an opportunity for a client to bring out the truth on the record, to clear up misinformation and dispel suspicion, which then motivates the opposing spouse to settle.

As with nearly everything in the world of divorce, what a deposition may mean to a particular case is subject to the qualifier– it depends.

What Are the Disadvantages of a Deposition?

In our practice, we do not rush to take depositions. When our clients are presented with a notice of deposition, we try to convince the other side to hold off. The primary reason is that depositions, though sometimes necessary to develop critical information, are often very expensive and a waste of time and energy. Good attorneys, who have the best interest of their clients at the fore, can often obtain the information they need to advise their clients without conducting depositions.

Remember, almost every divorce case ends in a settlement, not a trial. Depositions generally are more important for trial preparation than for settlement.

When Is a Deposition Necessary?

A deposition may be necessary when it is the best vehicle for uncovering the truth about a business’s bottom line. And, facing the risk of exposure to tax fraud at a deposition, the opposing spouse may decide, usually at the last minute, to offer an increase in the amount of support he or she is willing to pay.

There are times when I will highly recommend that my client consent to my taking a deposition of the other spouse or an important witness. One example is when the other spouse is self-employed, and we suspect that income from the business is being hidden in trumped-up business expenses. It may be crucial to expose that additional income – so that adequate spousal support can be obtained.

What’s the Takeaway?

Depositions can be a powerful tool or a dangerous weapon in a litigated divorce. An attorney’s skill in avoiding depositions, however, can be just as important as skill in taking them.

Depositions can also be critical to your case because it is your chance to tell your side of the story, while on the record. Depositions are written records and can later be used to corroborate or impeach a testimony in trial. This is especially true if the testimony is vastly different from what was noted in the deposition.

If you have any questions regarding your case, please feel free to contact me today at (781) 304-4001.

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