By Brian K. Zoeller
In my 18 years of family law practice, I’ve come to the conclusion that interrogatories range from somewhat beneficial to almost worthless. We’ve all received the responses to interrogatories so doctored by opposing counsel there is virtually no substance, or so littered with objections and qualifications that the answer is meaningless. So for many years my solution to this problem has been to take depositions. I will outline a few of the reasons more family law practitioners should do the same.
First, a deposition can be very helpful in establishing key facts that are very damaging to the other side. These are often facts the opposing party has failed to share with their counsel. Attorneys are excellent at spinning bad facts and giving their clients advice on how to answer tough questions. But if the first time the attorney hears about his client’s substantiated abuse findings by DCS is during that client’s deposition, you can get answers surrounding that abuse finding that might be far more damaging to that witness than if you had asked an interrogatory about that finding.
I once represented a father seeking joint physical custody of his teenage daughter whom he had an excellent bond and relationship with. During the deposition I asked the mother about her criminal history and asked about any arrests to which she emphatically responded, “None!” A few hours after the deposition, opposing counsel called me to explain that his client had simply forgotten about her recent drunken-driving arrest and subsequent driving while suspended arrest. That matter quickly settled, with my client getting to spend equal time with his daughter. So not only can a deposition help you nail a lying deponent, but in catching them in that lie, you can use that to push for settlement, which is what we all hope for in family law matters.
Second, when you ask an interrogatory you are unable to probe further, and you simply get the answer they decide to give you; in a deposition you can dig deeper, yielding key responses. I represented another father seeking joint physical custody of his children, and by all accounts he was a very good, involved father, but he had one big problem. A year before the divorce was filed he had caused a serious DUI accident that resulted in injury to himself and another driver. He got counseling, made restitution and cleaned up, but we were still concerned about that being used against us by opposing counsel. Mother was a bartender and she had disclosed to the father that after drinking with co-workers after work, she had rear-ended another vehicle and gave the woman she hit everything in her wallet to keep her from reporting the accident or getting police involved. The problem was that there was nothing to document the mother’s drunken-driving accident, and we knew she’d deny it. So I asked mother in her deposition whether she had been in any accidents after getting off work in the last year, which she denied. I asked, “Are you certain that you didn’t rear-end someone that resulted in very minor damage to the other driver’s car?” Again she denied that ever happened. So I asked, “Is it possible that on Gray Road you hit a young lady and handed her everything in your wallet to take care of the paint that was knocked off her bumper?” To my great surprise she admitted that she did now recall that. Mother’s greatest weapon against the father in his quest to have shared custody was wiped out by her own admission to having recently used very poor judgment. If we had sent an interrogatory regarding that issue I am certain she would have denied it ever happened just as she initially did in her deposition.
Next, interrogatories do not allow you to test how credible the deponent might be. I took a deposition of a husband in a divorce action, and he had apparently been coached by his attorney to say, “I don’t know” to every question asked. So when I asked the name of the nanny he used for the children during his parenting time, his response was, “I don’t know.” When I asked how he found this nanny, his response was, “I don’t know” and on and on it went. It was great for our case he claimed no knowledge of this basic, yet important information. This witness was turning beet red, eyes flashing in anger, and practically spitting every time I asked him a question about my client, the mother of his five children. I knew he would be an absolute horrible witness because of his terrible temper, and because he could not recall key events that my client had a keen memory of, he would be unable to refute her memory of those key events. We were able to settle in mediation. Do I think his horrible deposition performance played a role in the settlement? Absolutely.
Finally, I have received many interrogatory responses where there was not one surprise or revelation, but out of the hundreds of depositions I have taken, there has been some key fact uncovered or some glaring mistake by the deponent in their testimony in every single one. Depositions are extremely unpredictable, but what you can always predict is getting at least something that will be helpful to your client and the case, which cannot always be said of interrogatories.•
Brian K. Zoeller is a partner at Cohen & Malad LLP where he handles large asset divorces and difficult custody matters. Brian is a certified family law specialist as designated by the Indiana State Bar Association Family Law Certification Board. The opinions expressed are those of the author.