2014
2014 FAMILY
FAMILY LAW
LAW SEMINAR
SEMINAR
The Art of the Deposition
11:15 a.m.- 12:00 p.m.
Presented by
Daniel L. Bray
Bray & Klockau, P.L.C.
402 S. Linn Street
Iowa City, Iowa 52240
Phone: 319-338-7968
Fax: 319-354-4871
FRIDAY,
FRIDAY, OCTOBER
OCTOBER 24
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FAMILY LAW SEMINAR OCTOBER 24, 2014
The Art of the Deposition
by Daniel Bray1
INTRODUCTION
There is nothing mystical or magical about a deposition in your family law case.
The Iowa Rules provide for the taking of depositions in family law cases. There is no
doubt that it is an intimidating task for someone who has not yet taken or who rarely
takes depositions. Nevertheless, once you know the basics, you can take any
deposition under any circumstance for any reason. Depositions can be taken live (with
or without a video recorder), by telephone, or by video conference. Iowa R.Civ.P.
1.701. The only thing you need is a deponent, a court reporter, opposing counsel, and
a series of question you want to ask. Iowa R.Civ.P. 1.713. If you are responding to a
deposition notice, all you need is to make sure you are at the right place at the right
time and that your witness is prepared to testify.
There are multiple reasons why you might want to take someone's deposition first of all, simply to gather information for your case; secondly, because that witness
may have one or more things that are particularly important to your case and you want
to get that down on paper; third, it gives you the opportunity to access the themes of
the opposing party’s case; fourth, the witness may become unavailable at some future
point, either as a result of death, age, illness, imprisonment or because the witness is
out of the state. Iowa R.Civ.P. 1.704. There may be other reasons for taking a
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This presentation uses and expands the materials prepared by Martin A. Diaz and
Amanda M. Richards. My thanks to both of them for giving their permission to use their
materials. Their original materials read like I was talking about my own views on
depositions, so I requested to use their materials in the structure of this presentation.
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deposition, but those are the most common. As the attorney, you are the one who
decides what reasons compel you to take certain depositions. Don't take a deposition
because someone tells you you're supposed to do it. Don't take a deposition just
because the person is going to testify at trial. There may be good reason not to take
that person's deposition. Don't do things because other people do them. Take
depositions because you think it's integral to your case. There must be some valid
reason to take a deposition. It could be that the person is going to testify and you want
to use their testimony at trial, or you might want to ask questions so that you can
explore a certain aspect of your case. There is no distinction between a “discovery”
deposition and an “evidentiary” deposition. Osborn v. Massey-Ferguson, Inc., 290
N.W.2d 893, 897 (Iowa 1980). Therefore, once you have your deposition, you get to
decide how you will use it at trial. Remember, the client has entrusted you with the
case, not to be an author of a book or a speaker at a seminar like this one.
PREPARING YOUR WITNESS FOR A DEPOSITION
Your witness needs to know that there are three basic reason why a deposition
is taken: (1) to learn what that witness knows about the particular issues involved; (2)
to use that witness to narrow down or determine the nature and extent of the issues
involved; and (3) to size up the witness and determine the witness' demeanor, ability
to be molded, and the impression that witness will make to a trier of fact.
To that end, when I am preparing witnesses, I remind them of these things. I
also advise them that the truth is the most significant factor in analyzing a case. If the
witness fails to tell the truth, the attorneys may be led down the wrong path, and, when
the path is finally determined correctly, they may not be able to do much about the
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new path. Therefore, it is important to tell the truth. Secondly, I advise the witness that
a deposition is not an opportunity to tell their story, but rather an obligation to respond
to questions asked. The witness has no obligation to volunteer facts. The witness' job
is simply to respond to the question that is asked and to answer that question honestly
and completely, without straying from the question that's been asked. It is up to the
lawyer to ask the proper question. It is not up to the witness to help that lawyer.
I also advise the witness of the ground rules for the deposition, the role of the
court reporter, the need to create an appropriate record, and the limited objections
that are made. I also remind the witness of the attorney-client relationship, the need
to avoid disclosure of any information obtained during that relationship, and the fact
that a deposition is not an endurance contest, nor is it a closed-book exam. The
witness has the right to review whatever information is necessary to assist that
witness in providing accurate testimony.
Beyond these concepts, I will advise the witness of the areas of questioning I
anticipate, but I also make clear that a lawyer may ask darn near anything, and it is
impossible to anticipate every possible question. I may then question the witness
about certain matters, using the question-and-answer preparation as a way to remind
the witness regarding technique. I will never and have never advised a witness how
to answer a question. Not only is it unethical, but it is often counter-productive.
Some lawyers have a videotape on giving depositions available for a witness,
if that witness chooses to watch the videotape. The purpose of such a videotape is to
teach the witness technique and to familiarize the witness with what a deposition is all
about. In our office we routinely provide clients and witnesses with a handout,
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“Being a Witness in Your Case,” which has helpful hints and rules to be a good
witness.
QUESTIONING OF WITNESSES
The most important rule in questioning is to be yourself. Unless you are
naturally argumentative, it is best to leave the arguments for the courtroom. Your goal
in a discovery deposition is to discover information. You cannot do that if you
antagonize a witness or opposing counsel. Having said that, there are times when it is
necessary to be more direct with a witness, particularly when you want to test that
witness' ability to be confronted.
The other important rule is to be prepared for the deposition. By that I mean to
know your subject matter well enough that, if the witness takes you in a different
direction, you can follow in that direction. Outlining your questions is the best
technique. You don't necessarily need to write down every question, although it may
be wise to write down a few to give you the sense and the feel of where you want to go
with the questioning. Once you begin on a subject with a witness, something may be
said by that witness that makes you decide to go down that path. Do not pass up that
opportunity. Go down the path with that witness and complete that subject and then
return to the path you have outlined. That's why you outline your questions - to make
sure you cover all the areas you want to cover. It doesn't mean you have to ask
questions in the same order as they appear in your outline.
There may be issues or subjects that you want to discuss with a witness
where you want to obtain short, concise answers to your questions. In order to do
that, provide short, concise questions. The longer the question, the greater the
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opportunity for that witness to provide something other than a "yes" or "no" answer or
a very short answer. One technique I use is to ask a very long question in order to get
the witness to discuss the subject matter and then use short follow-up questions to
pin down that witness to specific subjects or issues. You want to do that because
you not only want to get an admission to a particular question, but you might also
want to read a question and answer to a trial judge, and you don't want to read a
question and answer that is convoluted and might confuse the court. Rather, you
want to be able to hit the trial judge with a short question and a short answer so the
trial judge gets the point. Certainly, the other side has a right to submit any other
answers to that same subject matter, but you've gotten the message across early,
and the other side's response may sound like they are trying to backpedal from the
position they have already taken.
Finally, don't let objections get in the way of your questions. If there is
something you want, ask about it. If the other side objects to your question, unless
the objection provides that the witness not answer, you can proceed to get your
answer on the record.
Remember, be yourself.
DIFFICULT WITNESSES
Some witnesses simply don't want to answer a question or don't want to agree
with any aspect of your case. With regard to those witnesses, I let them speak their
piece and try to push them into a position that is ultimately untenable, either because it
sounds absurd or because other witnesses counter that witness. Ask short questions
and get short answers. If they refuse to give short answers, don't forget that they are
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actually helping you by providing additional information. At times I will test the witness
by pointing out that they are being evasive, and I give them another opportunity to
change an answer. However, if the witness is evasive in a deposition, that witness will
be evasive at trial, and you might as well get used to it and learn to use it to your
advantage.
As for opposing counsel, so long as the witness is answering questions,
he/she should not be a problem. The only time it's a problem is if counsel is trying to
help answer the questions. If, by their objections, they are providing for "speaking"
objections, then you should get an agreement on the record before you start or at the
point when you realize this is a problem and get counsel to agree that he/she will no
longer state "speaking" objections. However, you must live by that rule as well. If
counsel refuses to agree to that, then you have a choice - you can proceed with the
deposition and try to complete it or you can adjourn the deposition and ask the Court
to intervene and set that as a rule for the balance of the case. You don't necessarily
need to do it right then and there, although, if a Judge is willing to listen, you can try to
do it then. It would be sufficient to simply file a motion for a protective order and ask
the Court to prohibit such objections. Iowa R.Civ.P. 1.708.
If counsel is rude or otherwise obstreperous, then complete your
deposition -- and videotape all depositions thereafter.
I have found over the years very rare situations when opposing counsel has
been particularly difficult. Sometimes I will get aggressive with that attorney and let
them know that I can play that game if it becomes necessary. However, that tends to
degrade into difficulties throughout the balance of the case. I live by the motto "What
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goes around comes around." If your opposing counsel is not cooperative in one form
or another, then you will have every right to be equally uncooperative in other aspects
of the case. Once counsel recognizes that there comes a time for every lawyer when
he needs some understanding and cooperation from the other side, you will get future
cooperation.
OBJECTIONS DURING DEPOSITIONS
I try to stay out of the process when my client is being deposed, primarily
because I don't want to upset my client or make my client nervous. If I have a
concern about the other counsel, I try to take it up outside the presence
of my client. Even if a question is technically objectionable, it doesn't mean I will
object. Iowa R.Civ.P. 1.717. I will object under limited circumstances:
(1) If I think the question is very confusing and my client may be
misled by the question;
(2) If it asks my client for some type of legal conclusion, I will object. I
want to make certain that the record reflects that it is purely my
client's opinion and not something for which he will be legally
bound;
(3) When the question potentially seeks attorney-client information or
other privileged information. Otherwise, I try to stay out of the way
and allow my client to get comfortable with the deposition.
Something else to keep in mind is that certain objections may be
reserved to be made at trial. Iowa R.Civ.P. 1.708. For example,
hearsay objections need not be made prior to or during a deposition
and may be made when the deposition is offered at trial. Benn v.
Thomas, 512 N.W.2d 537 (Iowa 1994).
WHEN SHOULD A CLIENT NOT ANSWER?
A client should not answer primarily when he is asked about something
that could lead to disclosure of attorney-client information or privileged information.
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I have on occasion objected where information was sought that was very private
and potentially embarrassing and had truly little or nothing to do with the family law
case. On those occasions, I will interpose an initial objection and ask counsel to
explain the relevance. That can be done in the presence of my client or outside the
presence of my client. If I think it has some legitimate basis, I may permit my client
to answer in a limited manner. If I think it has nothing to do with anything, then I will
stick to my objection and take the position that counsel can't ask that question.
Some people believe that you cannot instruct your client not to answer a question
unless it deals with privilege; however, I don't agree with that. The client always
has a right to seek the protection of the Court, and, in order to obtain a protective
order, the client needs to be able to prevent the disclosure of certain information.
Therefore, I believe there are appropriate times when you should instruct your
client not to answer questions that are outside the attorney client relationship but
are sufficiently grave and intrusive as to warrant an attempt to protect your client's
privacy or interests.
HOW TO UTILIZE YOUR DEPOSITION
The usefulness of your deposition does not end once the last question has
been answered. In fact, once your deposition is finished, you should review the
deposition and every other deposition that has been taken in the case. Familiarity with
the depositions will be invaluable in preparing for the trial. You will need to think about
how you would like to use your deposition because it could be a very useful tool for you
during the trial as well.
The court has been addressing the issue of how depositions can be used at trial
for over 100 years. Historically, the court refused to allow a deposition to be read into
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evidence when the deponent was present in the courtroom and able to be examined
orally. Bryant v. Burlington, C.R. & N. Ry. Co., 23 N.W. 678 (Iowa 1885). More
recently, the fact that the deponent is present at trial does not make introduction of the
deposition objectionable. Robinson v. Fort Dodge Limestone Co., 106 N.W.2d 579,
583 (1960). Now in our day of practice, Iowa Rule of Civil Procedure 1.704, allows a
deposition to be used “for any purpose.” Iowa R.Civ.P. 1.704(2)-(5). This rule was
“intended to create its own exception to the hearsay rule” in civil cases. Cook v. State,
431 N.W.2d 800, 805 (Iowa 1988).
Rule 1.704(2) allows creative ways of using a party’s deposition. Any part or all
of a deposition can be used for “any purpose” as long as when the deposition was
taken; (1) the deponent was a party adverse to the offeror, or (2) was an officer,
partner, or managing agent of any adverse party which is not a natural person. If
these criteria are met, you can be creative. For example, you may choose to read into
the record part of an adverse party’s deposition, or show part of that party’s video
deposition. You can do this as part of your cross examination or for comment by an
expert witness. Sometimes you get really lucky and ask exactly the right question to
get exactly the right answer that helps your case. Re-asking that question at trial might
risk introducing a different answer that forces further unnecessary impeachment.
Feel free to introduce a deposition which has been taken by your adversary,
even when your adversary declines to introduce it. Osborn v. Massey-Ferguson, Inc.,
290 N.W.2d 893, 897 (Iowa 1980). Be ready though. Once you introduce the
deposition, the deponent becomes your witness, and the other party has the right to
object to the deposition at trial. Iowa R.Civ.P. 1.705(2).
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Before using your deposition, you should determine whether the deponent will
be available or unavailable at the time of trial. If the deponent is unavailable, the Court
will need to make a finding as to the reason for the deponent’s absence before the
deposition can be admitted. Iowa R.Civ.P. 1.704(3); Schmitt v. Jenkins, 170 N.W.2d
632, 652 (Iowa 1969); Matter of Estate of Hettinga, 514 N.W.2d 727 (Iowa Ct. App.
1994)(holding the trial court erred in admitting the deposition testimony at trial because
the court did not make a finding that the offeror was unable to procure deponent’s
presence at the trial by subpoena). The potential scenarios where the deponent could
be unavailable to testify are as follows: being “out of state” as long as offeror is not the
cause of such absence, if the deponent is too sick, old or infirm to testify, if the
deponent is imprisoned, and the most obvious reason, if the deponent is dead. Iowa
R.Civ.P. 1.704(3).
Being unable to procure the deponent’s presence at trial can be as simple as
the deponent living “out of state.” An engineer, who was in charge of the locomotive
at the time of the crash, was deposed and undoubtedly could have been at trial, since
he worked within the state of the district court. Yet, the engineer was considered to be
“out of state” because he resided in the neighboring state. Farmers Elevator Co., 149
N.W.2d 867, 869 (Iowa 1967).
We often use expert testimony in family law cases when you can use an
expert’s deposition at trial. Rule 1.704(4) allows the use of a deposition for any
purpose; (1) if it was taken of an expert witness specially retained for litigation, or (2)
the deponent was a health care practitioner offering opinions or facts concerning a
party’s physical or mental condition. The expert’s direct testimony at trial cannot go
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beyond the fair scope or be inconsistent with the expert’s testimony in the discovery
proceedings. Iowa R.Civ.P. 1.508. If that condition is met, the deposition can be read
into the record in its entirety. Millis v. Hute, 587 N.W.2d 625 (Iowa Ct. App. 1998).
You may be able to get a deposition admitted even if you have not attempted to
get the deponent there by subpoena, as long as; (1) there was notice, (2) exceptional
circumstances, and (3) it is desirable in the interests of justice to get the deposition
admitted. Iowa R.Civ.P. 1.704(5); Beachel v. Long, 420 N.W.2d 482 (Iowa Ct. App.
1988) (a videotape deposition was admitted because there was notice, and the
exceptional circumstances made it desirable in the interests of justice. When the
deposition was taken, counsel was present and thus sufficient notice was given. Also,
the expert made it very clear in his deposition that he would be unable to testify at the
trial due to a prior commitment.)
You may seek to admit a deposition from another proceeding, even one that
occurred out of state, so long as that particular action and the one at hand involve
substantially the same matter. Regal Ins. Co. v. Summit Guar. Corp., 324 N.W.2d 697
(Iowa 1982). Cf. In re Soderland’s Estate, 30 N.W.2d 128, 133 (Iowa 1947) (deposition
from another proceeding inadmissible because of substantial difference between the
two proceedings).
One last thing to keep in mind should your case proceed to the appellate level is
that you need to preserve the error. In re Marriage of Christensen, 807 N.W.2d 296
(Table), 2011 WL 4578425 (Iowa Ct. App.) (even though it was a clear error to refuse
the admission of a deposition because the deponent was present in the court room
and gave live testimony, this error was not preserved for review “without an offer of
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proof”).
CONCLUSION
To depose well, learn to be yourself. Listen to what others say or do, but
always be independent in your decision making. Depositions are but one aspect of
your family law case (an important one at that), and you need to view them as an
extension of yourself - a way to accomplish your goals for presentation and proof of
your family law case.
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