I am a strong proponent of taking depositions in contested family law cases in North Carolina. They can help in many ways.
A deposition is type of discovery proceeding where a party or witness is required to answer questions before a court reporter while under an oath or affirmation to tell the truth. A deposition happens in one of the lawyer's offices or at an agreed-on location. This kind of proceeding does not take place in the presence of a district court judge.
The frequency of depositions is different county-to-county. For example, they are very frequent in Wake County divorce cases. Lawyers in Wake County contested custody cases, equitable distribution, and alimony cases often take them. In Orange County, North Carolina, deposition is in family law cases are less frequent. Local practice has much to do with what and how discovery tools are implemented.
Why Take a Deposition?
There are several reasons to take a deposition in a contested divorce, alimony, postseparation support, equitable distribution, child custody or child support case.
It is important to ask questions and get answers in a particular way at the deposition. I find that being friendly and conversational with the witness is usually the best approach. It does no good to ask the hard questions at the beginning of the deposition because it will cause the witness to talk less, when the goal of the deposition is to have the witness talk more so everyone can understand the facts and opinions as the witness sees them.
I want to use a deposition to get evidence because, as tools go for lawyers, the deposition is the least-filtered way to get the information. For example, I sometimes send written questions (called interrogatories), but the party's attorney has the ability to assit in the answering. I usually don't want the attorney's answers; I want the party's answers.
Getting the evidence means that I am better prepared for the trial. We know what the witness is going to say and we can decide on what documents or other witnesses we would need to call at the hearing if we want to dipute what the witness will say in court.
Committing the witness to a certain version of events:
Since the proceeding is recorded and a transcript produced, if the party or witness testifies differently at the hearing or trial than at the deposition I can, and often do, point that out. That has the effect of reducing the credibility of the witness in the eyes of the court.
The depositions of parties is important because that is frequently the first time the opposing lawyer will get a sense of the party as a person and witness in court. Sometime lawyers discover that the other spouse is not quite the way our client has portrayed them. I need to know if the other party will make a good witness or bad witness.
The deposition can and does assit settlement of the case because of the forgoing factors. Sometimes I have settled cases at lunch breaks of depositions. It forces the lawyers and parties together and highlights the seriousness of the situation.
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