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Depositions

Depositions allow one party’s attorney to question and confront the opposing party in person.
In a divorce or family law action in Tampa, Orlando and throughout the State of Florida, depositions can be one of the most important tools in a litigant’s discovery tool kit. Depositions allow one party’s attorney to question and confront the opposing party in person. Essentially, a deposition is a compelled sworn statement. After a divorce action has been commenced, either party may take the testimony of any person, including the other party, by deposition via oral examination. A deposition is a unique discovery method, which presents one of the only times a party can be required to talk to opposing counsel before trial. Although depositions are extremely useful tools, they are not widely used in divorce because of the high costs associated with them.
 
Depositions will typically happen closer to trial. During a witness’ deposition, the questioning of the witness is typically conducted as it would be at trial. Prior to the examination, the witness is placed under oath. During the examination, one spouse's attorney will depose the other spouse (or witness) by asking them a series of questions that they must respond truthfully to. At this time, the witness’ testimony is recorded. Following the deposition’s completion, the witness may request to review the examination’s transcript or recording for accuracy and make any necessary changes. If the witness makes changes, they must sign a statement reciting the revisions and provide justifications for why the transcript was incorrect.
 
Before a deposition can be requested, there are certain procedural steps that must be followed. If a party desires to take the deposition of a person via oral examination, the other party must be given reasonable written notice. The notice must give details about the deposition’s circumstances, including its location, time, and the names and addresses of each person to be examined.  Witnesses may be compelled by subpoena to attend the deposition. Any minor subpoenaed for testimony shall have the right to be accompanied by a parent or guardian at all times during the taking of testimony. 
 

Can you Object to the Deposition Questions?

Yes. Attorneys representing the parties to a deposition may make objections regarding the evidence presented, the conduct of a party, or the manner of taking the deposition, among other things. At any time during the deposition, a party or witness may petition the court to terminate or limit the scope of the deposition. A court will only make such an order if the petitioning party shows that: “the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.” Fla.R.Civ.P. Rule 1.310. 
 

How is a Deposition Used at Trial?

At trial, any part of the deposition may be used against any party who was present or represented during the deposition. Additionally, the deposition of a witness (even if this witness is not a spouse or party to the case) may be used by any party for any purpose if the court finds:
  1. That the witness is dead; 
  2. That the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; 
  3. That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; 
  4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; 
  5. Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or 
  6. The witness is an expert or skilled witness.” Fla. R. Civ. P. 1.330.

 Practice Pointer - Caution

Depositions have several unique procedural steps that one must be aware of prior to and during the process. Objections during a deposition can prevent the leaking of privileged material and other harms. This is why is may be wise to consider consulting with an experienced attorney prior to attending a deposition or prior to deciding to use a deposition. If you believe depositions will be at issue in your case, consider speaking with one of our experienced Orlando or Tampa divorce lawyers.

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