I recently had a child custody trial, and I wanted to jot down some quick notes about it.
I’m a firm believer in deposing people in divorce and child custody cases. Most family law attorneys don’t do this because of financial concerns (i.e., their clients don’t want to pay for it). I think it’s best practice to depose the opposing party so you have some sort of idea what they’ll say at trial. You can fly blind if you want, but that just doesn’t seem like the best way to go about lawyering.
In keeping with the above, opposing counsel (an incredibly nice man, who I enjoy working with immensely) and I both deposed each other’s witnesses in anticipation of trial. We both knew where we wanted to go with our questioning at trial because we had already asked those questions months ago.
The problem is when you ask the questions during trial you asked during a deposition, you tend to get different answers. This might be exactly what you want because you want to catch someone in a lie and damage their credibility. That wasn’t the situation in which I found myself, however.
I didn’t need to prove the other side non-credible. She did that all on her own every time she spoke. What I wanted to do was get out the same information I elicited during the deposition and do it efficiently.
And that’s where the transcript came in.
I had never tried this before, but I decided to role play with her, reading my portion of the transcript, and having her read her responses.
I started by asking her if she answered correctly during her deposition testimony. She said she did, so we started role playing. It was fantastic.
If I had asked her the same questions at trial I asked previously, she would have hemmed and hawed, hedged, and outright changed her answers and it would have been a drawn-out mess. (Her idea of answering a question throughout the entire case had been to ask me three times to repeat every question.) By reading the deposition, I skipped over all of that. We got straight to the point and didn’t have to deal with the tension that comes from witnesses who are constitutionally incapable of telling the truth the first time around.
The other great thing about role playing is you can add inflection to your voice to emphasize important moments of testimony.
So, if you don’t need to worry about making someone look like a liar, and you want to elicit information quickly, read the deposition transcript.