Depositions are expected in divorce or family law matters. All sorts of witnesses may be deposed.

Depositions of the parties themselves are usually expected. Further, the deposition of third-party witnesses or expert witnesses may be necessary.

How Does A Deposition Work?

During a divorce or family law deposition, one attorney asks the witnesses under oath to discover relevant information. Information is relevant if reasonably calculated to lead to the discovery of admissible evidence. Depositions can sometimes take hours or even days.

During the deposition, the other attorney in the case can also ask the witness questions. If there is a guardian ad litem, the guardian ad litem can also ask questions. Sometimes, if the person being deposed is not one of the parties, they may have legal counsel during the deposition.

How Do Objections Work?

Sometimes, however, one of the lawyers on the case will object to a question being asked. Most often, it is the lawyer for the deposed witness who objects.

Objections to questions are usually based on relevancy or other legal/evidence-based reasons. A lawyer may also object to privilege, hearsay, speculation, the form of the question, or numerous other reasons.

But after the objection is made on the record, two things normally happen. First, the witness’s lawyer may instruct them to answer the question subject to their objections. Second, they may instruct the witness not to answer the question.

Why Does It Matter Which Happens?

If a lawyer instructs their client to answer the question subject to their objection, the deposition usually moves forward without major issues. In this circumstance, a lawyer is making a record of their objection. Making a record ensures that the lawyer has preserved the objection for trial.

However, the deposition may become acrimonious if a lawyer instructs their client not to answer the question. The attorney asking the question either needs to certify the question so that the judge or a special master can later determine if the witness must answer it. Or, the lawyer can waive the question and not seek an answer.

Typically, if the question is arguably relevant, a lawyer will instruct their client to answer the question subject to the objection. On the other hand, if a lawyer feels the question is entirely irrelevant or based on privilege, they may feel like they have no choice but to instruct the witness not to answer the question.