Depositions........

[anonymous1]

Dear Soc,

    I will try to make this short. Court case for modification was filed 6 months ago, countermotion, of course then filed for custody. Trial date finally arriving in 5 1/2 weeks. Already had to answer an unbelievable irrelevant interrogatory of 60+ questions, carefully worded as to allow opposing counsel to twist response no matter the answer. Most questions were a direct attempt to insinuate unfitness and are completely fabricated and untrue.

    Now, my attorney says they want a deposition in their attorney's office which will take place 3 weeks before trial. I know this is just another attempt to discredit me. They have stooped to any low to achieve victory. Unbelievably my attorney okayed the deposition without even asking me. Attorney says request to her is sufficient, no subpoena required. Since most of the interrogatories are soooooooo irrelavant I think this is just to allow them to ask anything they wish to. Attorney says I have to answer ALL QUESTIONS regardless of their nature or irrelevance, that she cannot even object to said questions. She can object in court if they try to use anything though. Which to me means they will try to bring up all these issues so the judge will hear us objecting to everything and look like we are hiding something. (Maybe I am paranoid).  :)

  I am 100% broke and out of ALL vacation time, sick time and personal time to attend this.

  1) Do I have to go to this deposition without being subpoena'ed?

  2) What if I do not show up and can prove my depletion of vacation etc., will I be in contempt? (Lawyer says it would be a big deal)

  3) Although I have nothing to hide, they can still insinuate anything to give the appearance of unfitness. Can they really ask "anything they wish" without myself or attorney being able to object or even plead the fifth?

  The whole ordeal has gotten ridiculous and I am broke, broke, broke and tired of the games. I don't even see a chance in you know where that he could ever win his custody battle (I currently have custody)(plus he is on felony probation)(And although he is trying to sling mud and make me look unfit he is asking for only one of the kids).

HELP!!!!!!!

[socrateaser]

>  1) Do I have to go to this deposition without being
>subpoena'ed?

A party can be deposed on notice because they are already subject to the court's jurisdiction, so, if you are a party to the case, then you can be deposed on notice alone.

>
>  2) What if I do not show up and can prove my depletion of
>vacation etc., will I be in contempt? (Lawyer says it would be
>a big deal)

A party who fails to appear for a properly noticed deposition may and will be sanctioned by the court on motion by opposing counsel, unless that party can show that his failure to appear was not "willful." You have a duty to make extraordinary efforts to appear at any court-ordered hearing, and just because you've run out of vacation, is not good cause for failing to appear.
>
>  3) Although I have nothing to hide, they can still insinuate
>anything to give the appearance of unfitness. Can they really
>ask "anything they wish" without myself or attorney being able
>to object or even plead the fifth?

No, your attorney is going a little overboard, probably because she doesn't want you to seem evasive at the hearing. The law is this: A question at deposition is relevant if "it is reasonably calculated to lead to the discovery of admissible evidence." What this means is, that unless the question is something like, "What do you like with your baked potato," then it's probably "reasonably calculated." Can you refuse to testify because of fear of criminal self incrimination? Yes, you can, but a civil court can treat such a response as proof of something else, just not proof of criminal culpability. And, being that you're in a civil action, the better response to questions involving criminal matters is: "I don't remember." In fact, more often than not, there are only three responses for a depo question: Yes, No, I don't remember.

Don't elaborate or go into long explanations. You want to directly answer every question, or not remember. The more you talk, the more likely you will put your foot in it. Most people want to tell their story, but it almost always leads to giving away the store. So, better to say as little as possible.

Bet you can't keep quiet, though. Almost no one can.

Finally, as to your attorney not being able to object until trial, that is hogwash, but most attorneys don't object during depositions, just to make things go faster. Actually, the attorney is SUPPOSED to raise any evidentiary objection at the time of deposition, or they waive their right to object at trial. However, after the objection is raised, and unless the attorney instructs the witness specifically not to answer on grounds that the question violates some privilege to remain silent (like for example, "my attorney told me...", would be a breach of the attorney-client privilege, for which the attorney could specifically instruct you to not answer), then the witness must answer the question.

>  The whole ordeal has gotten ridiculous and I am broke,
>broke, broke and tired of the games. I don't even see a chance
>in you know where that he could ever win his custody battle (I
>currently have custody)(plus he is on felony probation)(And
>although he is trying to sling mud and make me look unfit he
>is asking for only one of the kids).

And, that's the idea -- to stir you up emotionally so that you'll screw up. I don't know the facts of your case, so I can't really comment on your assertions of the other party's evil. In my experience, both parties are usually equally responsible for their troubles.

Your mileage may vary.

[MYSONSDAD]

http://www.law.indiana.edu/webinit/tanford/archive/Depositions.html

"Children learn what they live"

[socrateaser]

...be advised that the author is operating under the law of the State of Indiana, and your deposition may have some different rules.

The author states that you should never object during the first half of his outline, and then tells you when you can object in the second half.

In law, everything is open to argument. I find it extremely interesting that the author does not quote the law, which is as I have already explained.

Under Federal law, a deposition objection is preserved for trial. In State court, the objection generally must be made at the time of deposition or it is waived. The original poster's State law may comport with Federal law, and thus her attorney has correctly advised her that no objection is necessary at the deposition...I don't know. What I DO know, is that, preserved or not, objections at deposition are not forbidden, and I prefer to object at the deposition, so that when the party's attorney who wants to introduce the evidence at trial, attempts to introduce said evidence, he/she is forced to introduce my objection BEFORE the judge hears my client's deposition testimony.

The reason for this should be quite obvious, but if not, then:

"A bell, once rung, cannot be unrung." -- Anonymous trial lawyer.

[MYSONSDAD]

"Children learn what they live"