Depositions
Family Law Depositions Strategy and Practice
To Depose Or Not To Depose? Harry B. Siegel
F
amily law cases are factually driven. Te family law attorney’s discovery and trial strategies are driven by a myriad of factors, including but not limited to the
following:
1. the attorney’s experience and knowledge of family law and strategy
2. the opposing attorney’s experience and knowledge of family law and strategy
3. the specific issues in the case 4. he client’s financial commitment to the case 5. the client’s goals 6. the “CYA” factor 7. the process -- or processes -- of resolving the case, which may include negotiation, alternative dispute resolution, litigation or any combination of these
As the vast majority of family law cases settle fairly
early, there tend to be few or no depositions taken. In most cases, there is no formal discovery at all. An informal survey of several of my favorite court reporters yielded a wealth of information. Tey see the same “cast of characters,” family law attorneys with the high conflict custody, access and money cases. Tey rarely see depositions in lower conflict cases, and they rarely see “new faces” in the field of family law deposition-taking. Tis was not a scientific study, but it told me something that I already suspected: there is a great disparity in the taking of depositions by family law attorneys as opposed to attorneys who occasionally practice family law. In exploring whether to take depositions in a family law
case, the obvious question must be asked: whose deposition do I take? Te answer lies within the realm of trial strategy.
When do you begin to formulate your discovery and trial strategy for the new case that just walked in the door? With the initial consult, of course. By the time I have finished my initial consult with a
new client, I usually have my opening statement and closing argument inside of my head, and I already have initial thoughts as to the scope and breadth of discovery. Depositions fall into three categories: factual, expert and
records. To be technically precise, we may technically refer to “depositions of individuals and/or entities, where if the deponent provides the records in advance of the deposition with the proper certification, then the deposition itself shall be cancelled.” For the sake of brevity, I am going to call these “records depositions.” Te first part of this article will focus on exploring the
strategic factors in determining whether to take depositions, and if so, of whom. Te second part of this article will focus on providing practical tips for preparing for depositions of all types in family law cases. Tis is not a “checklist” deposition article.
I believe
depositions checklists are helpful, as trial checklists are helpful in many cases. However, I would like to impress upon you that there is no substitution for thinking about the goals of the deposition first, and then looking at a checklist thereafter. Likewise, I do not intend to analyze the Maryland Rules
of Procedure, especially Title 2, Subtitle 4, with regard to depositions. If you are reading this article, you already know the rules or can look them up if you need refreshing. I will say that you should read the discovery rules from cover to cover at least once per year, especially when the new pocket parts come out. You will be amazed at what you learn. I will, however, take thirty seconds of your reading time
and direct you to Maryland Rule 2-415(d), which, inter alia, governs the reading and signing of a deposition. When you
Trial Reporter / Winter 2011 39
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