Saturday, March 22, 2008

Difficult Divorce Depositions: a Modest Proposal

Difficult Divorce Depositions: a Modest Proposal

What is the tactical Utah divorce lawyer's most-hated deposition abuse? I submit that it is the deposing lawyer who deliberately poses objectionable questions knowing that the deponent has to answer them "subject to the objections" anyway, thus obtaining by deposition evidence he/she could otherwise never get.

Because no judge is present to rule on the objections raised in a deposition, the attorney who considers a question of his client improper nevertheless states his/her objection for the record so that the judge can then determine whether the objection should be sustained or overruled, albeit after the deponent answers the question nevertheless. Thus, answered objectionable questions will not taint the evidence in the record.

Of course, no one actually believes such a notion any more than one believes he can unring a bell; once it's done, it cannot be undone. No one believes that a judge reviewing the deposition transcript or videotape will read/hear the objectionable question, then read/hear the objection, but then NOT read/hear the deponent's answer before determining whether the objection should be sustained or overruled. And even if one did believe such a thing, that naive soul would agree that such an amazing judge could either not realistically avoid reading the answer to the question that was stricken from consideration upon the sustained objection or erase from memory what the judge read and/or heard.

"But wait," you might say, "to prevent your client from answering objectionable questions you could simply object and instruct your client not to answer the question, right?" Wrong. Believe it or not, the rules of court do not permit this (there is, actually, a good reason for this, but explaining it would detract from my upcoming modest proposal, so please indulge me). The rule generally is that the only time objecting counsel can instruct a deponent not to answer a question is to preserve a privilege or to enforce a limitation on evidence as previously directed by the court. So nice try, but no cigar. We appreciate your efforts, but we do not need efforts; we need results. There has been no way to ensure that a deposition is conducted according to the same safeguards as are present when testimony is taken before a judge--until now.

A Modest Proposal: Appoint a Deposition Arbiter


- before the deposition commences, you fear (based on previous experience) that opposing counsel will exploit his/her ability to pose objectionable questions in deposition that your client must answer them, subject to your largely impotent objections; or

- during the deposition counsel poses objectionable questions with seeming impunity in the smug expectation that your client must answer them,

you are no longer without recourse. Invoke the power of the deposition arbiter.

If you anticipate opposing counsel will or even may abuse the deposition format, file a motion to have a deposition arbiter appointed. The arbiter could be simply a retired judge or even a neutral fellow attorney who is well-versed in the rules of evidence. If the judge feels your motion has merit, the order would provide that the arbiter would be appointed, held to a strict standard of impartiality, notified of the date of the deposition, and ordered to stand ready to oversee the deposition personally and to rule on objections--just as the judge would--as the deposition proceeds.

The arbiter would be paid a small, flat fee, non-refundable "retainer" or per diem by the moving party simply for being appointed, whether his services are utilized at the deposition or not. Most attorneys I know would gladly pay $150 to $200 in advance and consider it a bargain if they knew it ensured that it would guarantee an end to abusive deposition practices.

If the arbiter's presence is invoked (either from the beginning, or at any time during the deposition), the parties would then split equally the costs of the arbiter's hourly fee until the deposition is completed.

If a party contends the arbiter was invoked in bad faith to incur needless costs or burdens, that matter can be addressed subsequent to the deposition, and (bonus) the arbiter can be called as a witness to give his objective opinions on the subject.

If a party contends that a question was erroneously sustained as objectionable, the aggrieved party could file a motion seeking a ruling on the issue from the judge, and if that party prevails, the question(s) can be posed to the witness with an instruction from the court that the witness must answer or be held in contempt.

And let me be clear: the purpose of creating the role of deposition arbiter is preventative. Merely knowing an arbiter could be appointed should be enough to prevent his being appointed in the first place. Just as dentists are ironically working hard to put themselves out of business by improving oral hygiene, it is the specter of having a deposition arbiter participate in a deposition that should be sufficient to accomplish its purpose, i.e., preventing deposition abuses.

Just knowing that a deposition arbiter could be appointed and his services invoked would all but end the practice of asking objectionable questions in depositions in bad faith and/or to obtain an unfair advantage. Thus, the appointment of arbiters would be rare, and limited only to those occasions when an attorney or attorneys don't have the sense or self-discipline to follow the rules of court just because they aren't in court and subject to the watchful eye (and power to punish) of the judge.

Fringe benefits. The appointment or possibility of appointment of a deposition arbiter would also foster, if not guarantee, good behavior from all participants in a deposition, as the participants would know that the arbiter is an agent of the court who could report (on the parties' own nickel) any and all misconduct that any participant--counsel and client alike--engages in during the deposition. Depositions will be less distressing and more expeditious for clients and attorneys alike. Judges will receive far, far fewer unexpected telephone calls during depositions seeking orders and rulings on the spot.

I welcome your suggestions for, comments on, and critiques of this modest proposal.

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