§22.06 Depositions

• Jurisdiction: Washington

§ 22.06 DEPOSITIONS

[1] Importance of Depositions

Depositions assist the attorney in evaluating a case prior to trial and as a settlement tool for both sides. In family law cases it is helpful to use the deposition of an opposing spouse not only to gather factual information, but to observe and evaluate the opposing party as a witness. E.g., is the party sympathetic or arrogant? Depositions are also important to determine the knowledge and style of expert and lay witnesses. Always require the client to be present during all major depositions—especially the deposition of the opposing spouse. This will help educate the client as to the reasonableness of settlement offers or the necessity of proceeding to trial. Other common reasons for taking depositions in family law cases include (1) the acquisition of records, (2) securing expert opinions, and (3) preserving testimony in the event of absent witnesses, including your own witnesses.

The economics of the case may not justify transcribing the deposition into written form. However, if you intend to use the deposition for impeachment or substantive evidence, it is imperative that the deposition be reduced to writing.

[2] When Depositions Upon Oral Examination May be Taken

As a general rule, a deposition of any witness (including the party) may be taken at any time prior to the discovery cut-off date, except that leave of court is required if the deposition is sought by the petitioner within 30 days after service of summons and petition. CR 30(a). If the responding spouse has sought discovery or is about to leave the state, a deposition within the 30-day period may be noted by the petitioner. The notice must set forth the facts to support the statement that the witness is about to leave the state and must be signed by the attorney. The attorney's signature on the notice serves as a certification of this fact to the best of the attorney's knowledge. CR 30(b)(2).

Practice Tip: The judge may permit a deposition of a witness after the discovery cut-off date if good cause is shown. Good cause can be information not available prior to the cut-off date, such as reports or evaluations or new witnesses.

[3] Before a Deposition

Before a deposition, consider the following:

• the purpose of the deposition
• whether the notice is objectionable (if so, immediately file a motion to limit the deposition testimony)
• whether the date, time, and place of deposition is suitable to the client/witness
• format of the deposition: face to face, by telephone, by videotape.

Practice Tip: Remember to prepare your witness for the deposition. There is a difference between preparing your witness, which is permitted, and coaching a witness, which is not. Have the witness review previous answers/testimony, and describe the setting and procedures of a deposition to those who have never been deposed. If the witness is a party, remember that having other non-attorneys present when preparing the party witness could result in a waiver of the attorney/client privilege. Before appearing at the deposition, check the witness for any unnecessary documents: there is no reason for a witness to take a briefcase, a calendar, a planner, a phone book, or other pertinent information to a deposition. Such materials may be requested by opposing counsel, provided, and possibly harm the client.

[4] Advising the Witness

Because a deposition maybe used at trial if the witness is unavailable or to contradict his or her testimony, counsel representing the witness to be deposed must be certain that the testimony will be accurate and truthful. To accomplish this, advise the witness of the following:

• Tell the truth.
• Listen carefully to the question asked and respond appropriately. The witness should note whether there is a clause or compound sentence in the question. If the witness cannot agree or disagree with its entirety, this should be stated and the witness should answer accordingly. The witness should not use exaggerations such as "never" or "always." The witness should not volunteer information or reveal a sudden insight that the witness has not discussed with the lawyer. Also, the witness should not explain thought processes used to arrive at an answer.
• Testify only to the facts known. The witness should only verify that which has actually been seen or heard, and should not guess. Regarding documents, the witness should ask to see any documents prior to testifying if he or she has any doubts as to their contents.
• Attorneys cannot confer with clients prior to answering questions unless a privilege exists.
• Remember that nothing is off the record. A question may be raised about any conversation occurring in the deposition room.
• Maintain a business-like attitude. The witness should not be angry or argumentative, or respond with levity.

During the deposition, inspect the exhibits; be careful not to let opposing counsel enter two unrelated documents as two related exhibits. This style of marking exhibits may erroneously suggest a connection between unrelated documents or witnesses at a later date or in future depositions.

Counsel representing the witness and the nonparty witness may not engage in private, off-the-record conferences during depositions or during breaks or recesses except to decide whether to assert a privilege. Nonparty witness-counsel conferences during a deposition, breaks, or recess are a proper subject for inquiry by deposing counsel, who may inquire into the substance of the communication.

[5] Attendance by Subpoena and Notice

[a] Nonparty Witness

A witness, such as an appraiser or bank officer, may be compelled to appear by subpoena as provided in CR 45(a)(3). Such a witness may also be compelled by a subpoena duces tecum to provide certain documentation. Service of the subpoena must comply with CR 45(b)(2), which provides that a deposition must be taken in the county where the witness resides, is employed, or transacts his or her business in person.

Service of the subpoena must comply with CR30(b)(1), which requires five days' written notice, excluding Saturdays, Sundays, court holidays, and the day of service. Failure to give five days' notice may be grounds for sanctions, but not grounds for quashing the subpoena.

[b] Party Witness

Attendance at a deposition by an opposing party may be accomplished by...