During most legal cases the parties exchange information from each other in order to build their cases in a process known as discovery. Divorce and child custody cases are no different.
There are two main types of discovery, written discovery and oral discovery. Written discovery includes written questions called interrogatories, requests for admissions and written requests for producing certain documents. In Missouri, there are standard "prewritten" interrogatories and requests for production of documents that are used in every divorce or child custody case. If one party wants to ask additional interrogatories or request additional documents from the other party, they must first petition the court for the right to use non-standard discovery.
Oral discovery includes depositions where one or both parties are questioned under oath by the opposing party’s attorney, as well as their own attorney sometimes. At most depositions a court reporter will record all of the questions and testimony, or the deposition may be video recorded.
Depositions may seem less formal than court because they take place in an attorney’s office instead of a courthouse, but depositions are an extremely important tool in our legal system because all of the testimony can be used in court. It is common to have your deposition taken in a Missouri divorce.
In Missouri depositions, the person being asked the questions is referred to as the deponent. Because depositions can last up to 8 hours, it is important to ask for breaks during the questioning. You can ask for a break as long as there isn't a question pending. This simply means that if you are asked a question, you can't take a break and go think about it, talk to your attorney or use your phone, and then return and answer the question. You will generally have a one lunch break during your deposition. It's a good idea to have lunch with your attorney and listen to any feedback your lawyer may have to help you through the afternoon session of the deposition.
Why are depositions taken?
The primary reason why depositions are taken is because the other party wants to discover what you know about the case, in order to help them build their case for trial. To do this, the opposing lawyer may try to get you to say something which would be harmful to your case. Once you admit something under oath at a deposition, you are stuck with that position because if you try to change your position at trial it would destroy your credibility. Depositions can be used to discredit your own testimony or used to discredit the testimony of another witness. Finally, a deposition gives the opposing attorney an idea of how you will perform as a witness if the case proceeds to trial.
Tips for depositions
Preparation: A deposition in a Cass County divorce or Jackson County child custody dispute is a crucial part of the legal case and therefore it is wise to prepare accordingly. It is important to meet with your attorney so you can learn what is likely to be asked of you. Then you can review this information to prepare for the questioning. If you or your attorney has provided written discovery to the opposing side, these documents should be reviewed prior to the deposition because these documents will likely get asked about.
2. Say as little as possible, and do not volunteer information. Most people get nervous when having their deposition taken, and sometimes as a consequence they ramble on saying things that were not asked for. The answer to many questions is simply yes, no, or I don’t know. If you volunteer information it could help the opposing attorney who is questioning you to come up with other ideas and things to ask you.
3. Do not speak until the entire question has been asked. Again due to nerves, many people want to quickly answer a question with the first thing that pops into their head. In a deposition it is important to slow down and think about a question before you start to answer it.
4. Make sure you heard the question correctly and completely understand it prior to attempting to formulate a response. There is nothing wrong with asking the questioner to repeat the question or instructing them you don’t understand it.
5. Often times the opposing lawyer will attempt to get under your skin to agitate you hoping you will make a mistake. It is paramount to remain composed during a deposition. Getting upset will make you say things that will not leave a good impression of you to a judge or jury. If you can keep your cool and maintain your composure in a deposition, you can likely do the same in front of a judge. When the opposing attorney realizes you are a cool, calm and collected character, they are more likely to suggest to their client to settle the case.
6. Never lie! Not only is lying under oath illegal, your credibility will be shot with the judge if you are ever caught in a lie. The judge will then assume everything you have said up to that point is also questionable with regard to the truth.
7. Do not let the questioner tempt you to change your answers. It’s common for attorneys to ask many questions which are similar in an attempt to get you to change your answer and contradict yourself. Stay consistent and remain confident in your answers, no matter what the questioner says.
8. Never guess! If you don’t know the answer, keep your mouth shut.
9. If the questioning attorney asks you to review a document, make sure you take the time and review it completely.
10. Don’t be afraid of silence. Do not talk just because it is silent, rather answer the question and close your mouth. If you begin to get agitated simply ask for a break.
11. Do not bring any documents to the deposition unless specifically requested to by your attorney or by the court. The opposing attorney will likely question you about anything you bring to the deposition.
12. Be prepared for invasive, irrelevant and repetitive questions. One tactic used by questioning attorneys is to ask personal questions to make the witness uncomfortable. Its important to realize this is the only point of these type of questions. Many of these questions will likely be quite unrelated to the actual matter in question and the reason for the deposition. The law allows a wide variety of topics to be discussed at depositions so it often best to answer every question you can, unless your attorney directs you otherwise.
13. Your lawyer may make objections to a question you are asked. Typically you can still answer the question unless your attorney directs you not to. From a legal procedural standpoint, attorneys are often times required to make objections because if they do they can then challenge whether that question and answer should be legally permissible in court according the Missouri Rules of Evidence.
Depositions in Missouri are covered in the Missouri Rules of Civil Procedure Rule 57. “After commencement of the action, any party may take the testimony of any person, including a party, by deposition under oral examination without leave of court, except as specified in paragraph (2) of this subdivision. The attendance of witnesses may be compelled by subpoena as provided in Rule 57.09."
If you are a man facing a divorce or child custody dispute in Jackson County, Missouri or Cass County, Missouri, please call us at the Men's Center for Domestic Resolution at (816) 287-1530. Our passion is to help men in the Kansas City, MO area through family law issues, including divorce, paternity, child custody, child support, and legal separation. We represent men in Pleasant Hill, MO, Lee's Summit, MO, Harrisonville, MO, Blue Springs, MO and many other areas in the KCMO metro area.
Yours truly,
Rob Davis
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