By Nathan A. Hacker
The biggest advantages to taking a deposition is that you can be sure what your wife is going to say at trial, and you can hope that it changes.
Strategically it does not matter what story is told, but that a story is told.
In depositions, you are trying to find out what the testimony will be at trial so that you and your divorce attorney can formulate a strategy that will maximize your results, or minimize your exposure, whichever the case may be.
Anything that your wife says in her deposition can be brought in to trial through the impeachment process.
Let’s take a look at an example of a deposition:
Attorney: What time did your husband come over to get your daughter?
Witness: Around 9:00 a.m.
Attorney: What did your husband do when he showed up?
Witness: He started yelling and screaming about where his daughter was and why she wasn’t ready to go.
Attorney: What kinds of things did your husband say?
Witness: He was being really mean, calling me a whore, and then he shoved me out of the way. I fell and hit my head.
Attorney: Did you yell when you hit your head?
Witness: I am sure I did. I think I even blacked out for a minute.
Attorney: Did you seek medical attention for your head?
Witness: Yeah, I went to the ER, and they said I had a mild concussion and that I should just go home and rest.
Attorney: Was your daughter home during this encounter?
Witness: Yeah, she and her brother were both sleeping upstairs so they didn’t hear anything.
Attorney: How old is your daughter?
Witness: She's 17.
Attorney: How old is your son?
Witness: He’s 23.
Attorney: What does he do for a living?
Witness: He’s an Army Ranger home on leave from Afghanistan.
Attorney: And this confrontation didn’t wake either of them?
Witness: No, they were up late the night before reminiscing.
When her son the Army Ranger testified at the preliminary hearing, he talked about hearing the entire encounter, that his mom never hit her head, and that his sister was up because she was excited about going to visit colleges with her dad.
Furthermore, he never heard the word "whore" and that he was wide awake because 9 a.m. in the Midwest is 6:30 p.m. in the time zone he’s used to. She was then called to testify and suddenly it was though her deposition never took place, except that it had.
When asked during her testimony if she heard what her son had said regarding this date, she said that nothing seemed out of place from her memory. It was brought up on cross examination that she had given a deposition that included crimes of battery, domestic violence, residential entry, and that it was inconsistent with her testimony in court.
She was left trying to explain how the two stories were so different. The judge rolled his eyes at the explanation she gave.
Not every deposition is going to have that kind of impeachment value - typically the value is much more subtle - but if your divorce attorney appears at trial unprepared to respond to the testimony of the opposing party and you didn’t have a deposition, you’ll be able to understand why.
Read all the articles in our "Discourse On Discovery" series: