Many attorneys will do anything they can to stay away from family law cases. However, from the to time, the client of even the most dedicated transactional attorney will get called as a third-party witness in a divorce. Depositions are not used in every family law case, but they can be effective tools, particularly when a party is believed to be hiding information. Often, friends of a party, that person’s business partner(s), or a person’s paramour may find him or herself the subjection of a subpoena.
Whether you decide to represent them through the deposition or not, there are several things that you should keep in mind in helping your client prepare, and advising him or her through the process.
First, although family law matters are governed by the Texas Family Code, like any civil deposition in Texas, a deposition in a family law proceeding is governed by the Texas Rules of Civil Procedures. Attorneys may object, but generally the only objection available is “objection form,” and when that objection is made, the witness still must answer the question. You may instruct your client not to answer only if the question and answer will violate a privilege, or if the questions are harassing.
If your client is called to give his deposition, the same general advice applies that would apply in any litigation – (1) the deponent should tell the truth; and (2) the deponent should answer the question he or she is asked, but don’t try to supply additional information. Particularly when your client is simply a third party witness, the deposition is not his or her time to tell a story. You should also give deponents a warning about social media. Although the deponent should not delete his or her social media page prior to the deposition, it is a good time to review privacy settings as well as the content of his or her social media page.
Even if you are not a family law practitioner, or not a litigator, don’t let your client appear at the deposition relying on one of the parties’ attorneys to represent your client. The individuals who are there as part of the family law proceeding are not there to protect your client’s interests in that deposition.
Additionally, make sure to ask your client if he or she received a subpoena duces tecum, along with the deposition subpoena. Third party depositions are frequently used to gather documents when a party has failed to adequately answer discovery. If your client receives a SBT as part of his deposition subpoena, make sure that you have been given adequate time to respond (30 days) and that you make any necessary objections. Don’t let your client simply show up to the deposition with the requested documents. As in any discovery response, both you and your client should review the documents that are being produced for relevance and privileged information.
A third party who receives a subpoena may wonder why his or her deposition has been scheduled. Although depositions are not used in every family case, they are useful tools, and there is a variety of information that the party may hope to gain from your client. For example, a deposition may be used to establish a right of reimbursement (for example, by showing the time, talent and energy used to build a separate property business), to prove fault in the breakup of the marriage; or to show that the parties were living out of the business, and therefore increase the income that is available for child support purpose.