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Process, Deposition

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What Are Depositions?

A divorce deposition is similar to a court testimony, but it is held out of court as a Q&A session. A court reporter will be present during the deposition to record the questions and answers. The individual who has to answer the questions (the deponent) will have to take an oath similar to what they would do in a court of law. It means the deponent will be legally obligated to speak the truth or they could be charged with perjury.

It is natural for most people in a divorce proceeding to feel scared by the thought of having to depose before the law. But your divorce lawyer should be able to explain the process to you and help to remove your concerns. In family law matters in Orange County, depositions can sometimes be a useful legal tool, which will allow the attorney to obtain vital information from the other side quickly and effectively.

In some cases, your divorce attorney may want to assess how a witness may perform in the court, and they could use a deposition to determine that in the best possible way. Under California law, the divorce attorney will be able to pose the same questions to a witness that they intend to ask during a trial or court hearing and to learn about the answers of the witness.

How a Deposition Differs from a Court Testimony?

The basic difference is that unlike an in-court testimony, the deposition is not conducted in a court of law. It is usually conducted in a meeting room or a law office in the courthouse or some other mutually agreed location. Secondly, a deposition takes place without the presence of a judge (except when both parties want to have a private judge to oversee the deposition.)

The private judge or referee can rule on any objections that may take place during the deposition. But in a vast majority of cases, depositions occur without a judge. Attorneys representing both sides will be present – one who asks the questions and the other who represents the deponent. The attorney representing the deponent can object to certain questions that pertain to privileged matters or other issues that are beyond the scope of discovery.

Discovery rules in Orange County are fairly flexible, which means that the questioning lawyer can dig deeper for details from the deponent than what the court may usually allow. For instance, a question may be considered irrelevant to the permissible evidence in a court of law, but may be considered valid as part of a deposition for the sole purpose of obtaining information related to the case.

The deponent may also be required to produce some documents. This request will be made prior to the deposition when the notice of deposition is issued. The other party may ask for any or all relevant documents, if they plan to ask questions that are pertinent to these documents.

The Deposition Process

During a deposition, the two parties and their lawyers as well as a court reporter are usually present. During the deposition process, the lawyers will usually put up their questions only if they want to obtain some clarification regarding a particular question that has already been asked. Once the deposition is over, both sides will get an opportunity to review the contents of the transcript prepared by the reporter.

Here are a few things to keep in mind while you prepare for a deposition:

  • Depending on the complexity of the family law issues, a deposition could take several hours, and may sometimes even extend to multiple days. Therefore, keep aside dedicated time for the deposition.
  • Review the “Notice of Deposition” carefully with your attorney and carefully note the date, time and place of reporting for the deposition.
  • If the deposition will be video-recorded, the other party should inform you about it.
  • While your attorney will prepare you for the deposition, you should know that even if it is not a trial or a court hearing, a deposition is a means for the other side to extract information from you that they can use against you as evidence in your family law case.

Things to Remember if the Other Party is the Deponent

  • Engage proactively with your divorce attorney while outlining the pertinent issues you want to address during the deposition and craft direct and clear questions on each issue.
  • Keep the exhibits (documents) fully organized for your deposition, and include the corresponding questions that need to be asked about them. Taking a deposition without first having the documentation organized is a mistake where you could end up missing the mark entirely.
  • If your questions are water-tight, you can usually expect the deponent to divulge nuggets of information that will prove to be invaluable to your case. So, invest maximum time on preparing the right questions.
  • Avoid argumentation during the deposition. Stay focused on the deponent’s answers and any argumentation will only serve as a wasteful distraction and provide relief to the other side.
  • In a deposition, the final transcript of the court reporter is everything. Maintain a cordial environment and allow the proceedings to continue without commotion so that every answer of the deponent is audible to the reporter and gets recorded clearly.

Finally, you should remember that a deposition also serves an opportunity for your family law attorney in Orange County to pave the way for a negotiated settlement between you and your ex-spouse. When all the relevant facts related to income, property, and other matters are brought on the table through depositions, you and the other party would find yourself in a more effective position to arrive at a meaningful settlement to the case. 

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