Winning in family court takes more than going to court and telling the judge your side of the story. People who succeed in trial build their cases by collecting evidence long before stepping into the courthouse. The collection of evidence is best accomplished using discovery tools authorized by the Civil Code of Procedure. Out of the many discovery tools available to family law litigants, the deposition is most useful.
Depositions are normally conducted in an attorney’s office. The deponent is served with a “Notice of Taking Deposition,” which requires an appearance to answer questions posed by an attorney in the presence of a certified court reporter. The court reporter then prepares a transcription of the deponent’s testimony.
Understandably, some people cannot afford to pay for a deposition. However, there those who have the money, but decline to spend it on a court reporter or their attorney to conduct the deposition. Unfortunately, these people often end up being “penny rich and a pound foolish. “
Before you decide against having your attorney depose your ex, consider the following reasons why it may be a golden opportunity to favorably resolve your family law matter.
First, deposing your ex gives your attorney a chance to flush out the truth. Your attorney can go on a “fishing expedition” during the deposition to learn key facts which lead to important evidence. Taking a deposition also allows your attorney to test out questions and get a heads up on what not to ask at trial.
During the deposition you can gauge the strength and weaknesses of your ex’s claims. For example, in a child custody dispute, your ex may claim you have been “unsafe” with the kids, or that you have been “gate-keeping” (denying access to them). However, under intense questioning he or she may not be able to articulate facts to support such a claim.
The deposition is also an excellent way to find out if your ex has the necessary documents to support claims of separate property or reimbursement rights. The Notice of Deposition served will require the production of specified documents. If your ex shows up to the deposition empty handed, you will know the claims cannot be proven in court.
Another reason to take a deposition is it gives you the ability to “pin down” your ex’s testimony. Where there are claims of domestic violence, for example, your ex can be asked in step-by step detail to describe an incident. If at trial, your ex gives a different version of the incident, the deposition testimony will be read into the record for impeachment purposes.
At the conclusion of the deposition, you will have a better idea if going to trial is to your advantage. Listening to your ex’s deposition testimony can give you a feel for how good of a witness he or she will be at trial. Some people make strong witnesses because of their confidence and ability to articulate facts. Others are easily confused and crumble during cross examination. Knowing ahead of time what you are up against will give you important insight as to how to proceed with your case.
Finally, taking the deposition of your ex can be useful in educating the opposing counsel about the weakness of their case and used to steer the case toward settlement. Most attorneys are realistic and avoid going to trial with a losing hand.
In conclusion, the power of taking a deposition cannot be overstated. It is the best tool in your attorney’s tool box in developing your case. Deciding to move forward may be the best decision you make toward winning in family court.