Deposition Strategies In Divorce

DEPOSITION STRATEGIES IN DIVORCE

________________________________________________________

KIRK C. STANGE, ESQ.*

*Special thanks to Emily Donaldson for helping prepare these materials.

  1. Handling the Divorce Deposition in Comparison with Other Depositions

Anyone who can be a witness at trial can be deposed, including the parties, their experts, and lay witnesses. Additionally, witnesses who may not be available at trial can also be deposed to preserve their testimony. Many individuals may possess relevant information - family members, teachers, counselors, and others can contribute valuable information. Do not take a deposition until you have a firm outline and strategy for accomplishing our goals with the particular witness. Otherwise, you may not be successful in undermining or limiting the impact of the witness.

The most important part of deposition preparation is identifying your goals. For example, your goals may be to elicit information for further discovery, uncover facts, discredit a witness at trial, flesh out important issues and collect information to bolster the elements of your case, preserve the testimony, expedite settlement, and/or oppose or support motion for summary judgment.

While seemingly an unimportant detail, seating arrangements at a deposition are important to the convenience and comfort of the deponent and the reporter. Additionally, counsel should be cautious of certain seating games the can be used to intimidate a witness. Typically, depositions are taken at a rectangular conference table. The reporter sits at one end and the witness sits immediately next to the reporter to ensure the witness can be heard. Counsel for the witness should sit next to the witness to facilitate review of documents and give a feeling of safety and comfort. While the examining attorney should sit across from the witness in order to closely observe the witness; if the examining attorney's client is present, he or she should sit next to his or her attorney. When the deposition table is particularly narrow, or when there is no table, having the deponent sit too close to the examining attorney may be intimidating and you should consider an alternate arrangement. Further, in a particularly adversarial situation, be aware that some attorneys place an intimidating individual in the deponent's line of sight to make the deponent uncomfortable.

It is difficult to prepare for personality dynamics. Thus, it is important to be prepared for anything. Evaluate the witness for likely effectiveness at trial. A thorough analysis of deponent's personality will help you choose the best questioning style as well. Additionally, it may be useful to make your opponent aware that you are keeping track of his or her tactics and behavior and may raise them before the court. You should note obstructions for the record. It may be necessary to halt deposition to bring a motion to compel or, on the other hand, for a protective order.

Some other considerations to make is the location and schedule of the deposition. Deposing counsel typically takes depositions at his or her office in order to facilitate an atmosphere of control and allow for greater access to information and support services. As counsel for the deponent, consider an alternate location that increases deponent's sense of security and therefore his or her loquaciousness. In regards to scheduling, check your local rules, otherwise consider the following: who possesses information is critical to building the foundation for the remainder of discovery; it is better to depose minor witnesses first if you need to develop background information to effectively question key witnesses. However, if background information is already available, consider deposing key witnesses first to deny them the benefit of prior knowledge of your lines of attack. Less sophisticated witnesses will typically volunteer more information. It is common practice to depose experts at the end of discover when you have a better understanding of the issues, although some cases may require that the expert be deposes earlier in the discovery process.

Witness preparation is important before a deposition and how you prepare can vary depending on whether the witness is your client, a lay witness, or an expert. For clients, the following instructions should be given:

  • dress appropriately

  • be polite

  • lean forward and watch your body language and posture

  • speak up and speak clearly

  • don't argue or be an advocate

  • wait for the entire question before answering

  • answer only the question that is asked and answer it honestly

  • never answer a question with a question

  • never answer a question that is not understood (A Witness may ask counsel to rephrase)

  • Always review a document or exhibit before answering question about it

Along with those instructions you should explain the nature and mechanics of the deposition so that the client understands his or her role, emphasize the differences between a deposition and a trial and explain your limited role and the client's obligation to answer ALL questions unless you make objections where you instruct them not to answer (versus allowing them to answer subject to your objection). Tell your client to answer every question truthfully. Instruct them to not use exaggerations or sarcasm when answering and inform your client that accuracy is important. Therefore, the client should listen closely for paraphrasing and questions that make assumptions of fact. In cases where emotions run high, encourage your client to maintain composure and self-control no matter the circumstances. Remind them they may ask for a break. Remind your client not to volunteer information and to answer only what was asked. You should explain that there is no benefit to volunteering information and to never speculate about the answer. Be sure to explain the difference between the answer "I don't know" and "I don't remember." Refreshing recollection may be a possibility. Additionally, you should meet with your client and review his or her testimony to discuss in detail anticipated areas of inquiry, potential traps, troubling documents or circumstances that will need to be explains. Finally, explain the attorney-client privilege to ensure the client does not disclose protected information.

Just as you would for a client, when preparing a lay witness for deposition, you should explain the purpose and mechanics of the deposition, review relevant documents, focus on "trouble" areas and any other concerns, and prepare psychologically by establishing a comfort level.

When preparing expert witnesses for deposition, you should investigate their former testimony for potentially troublesome areas, become familiar with documentary evidence and prior depositions, and discuss case theory and adverse case theory. As an attorney who is preparing to depose an expert witness, you must be certain of your objectives for taking the deposition; your basic purpose for deposing the expert should be twofold: (1) to determines the expert's opinions and conclusions; and (2) to undermine or limit the impact of the expert's opinions and conclusions. The deposition of an expert witness is the culmination of the opposing party's defense or prosecution theory of the case. Thus, before taking an experts deposition, the parties should generally have completed fact discovery. The expert's opinions are being offered by the opposing party as part of a plan to defeat your case. Deposing your opponent's expert witness is your opportunity to understand, limit and hopefully stop defeat. The importance of being prepared to depose this expert witness cannot be overemphasized. Beyond your basic purpose, the goals of your oral deposition of the expert should include the following:

to determine whether the expert is qualified to render an opinion;

to determine whether the expert has a reasonable basis for their opinions;

to determine whether the expert has relied upon accepted scientific methods and techniques for their opinions;

to determine whether the expert has reasonably relied upon any hearsay evidence to support their opinions;

to determine whether the expert has knowledge and understanding of the case-related factual evidence;

to determine whether the expert has either authored or acknowledged any authoritative texts or documents on the subject of their opinions or conclusions;

to lock in the expert's testimony and assure that the expert does not later offer any undisclosed opinions;

to determine whether, if any of the facts as the expert understands them were changed, the expert would change their opinions;

to determine whether the expert has made any alternative assumptions about the factual evidence which is necessary to support their opinions; and/or

to determine whether the expert admits any facts, assumptions, or theories of your case.

Do not take an opposing expert's deposition until you have a firm outline and strategy for accomplishing your goals with the expert witness. Otherwise, you are not likely to have any success either undermining or limiting the impact of the expert. Lastly, your plan for the expert's deposition may include hypothetical questions, containing facts and assumptions which you can prove at trial, that will undermine the expert's opinions and ultimately win your case. The point is that you must have an outline and a strategy for your deposition of an expert. If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave the deposition knowing how you will deal with the expert at the time of trial.

Just as important as preparing witnesses, before the deposition, you should obtain and review discoverable documents. Interrogatories can be used to obtain basic information but should not be used for key points. Interrogatories, documents requests, and requests for admission can be used after the deposition to complete the discovery. In divorce cases, discovery requests usually ask for the production of financial documents or records and business records. In custody cases, discovery requests usually ask for the production of school records, diaries, and other information about the children, such as medical records. In a divorce, if a party fails to disclose significant assets that existed at the time of divorce, the case may be re-opened or, in some instances, set aside; check social media and financial records for use of unknown assets. Penalties vary case to case and state to state but include contempt of court, order to pay attorney fees and or fines, dismissal of party's claims, and or, in serious cases, party could face criminal charges.

  1. Crafting Questions to Get the Answers you are Looking for

    1. Financial Questions - Finding Hidden Assets and Income

Discovery is an important piece in litigation. Our courts are based on the belief that a free exchange of information will ultimately uncover the truth regarding any business interests in a divorce. For example, if your client knows that the other party has business interest, with the issuance of discovery, you would be able to uncover the type of business, the corporate structure, when it was created and other information related to income, expenses and/or assets. Discovery can give you the who, what, where, when and how.

The difficulty with cases involving alleged hidden assets is avoiding the assumption that hidden assets do, in fact, exist. When seeking hidden assets, it is first necessary for investigators (whether it be one of the divorcing parties, the attorney, or paralegal) to recognize the underlying factor that the possibility of hidden assets must exist before hidden assets can exist. Investigating under the sole assumption that hidden assets exist can result not only in wasted time and costs but also the risk of discovery abuse, such as placing an undue burden on the opposing party (OP). Therefore, the underlying mindset for investigators should always seek to answer the question, "Is it possible that hidden assets exist?"

Whether it is known or merely suspected that the opposing party may be hiding assets and/or accounts, the process should begin by asking the client questions in order to establish a "profile" of the OP. Important questions include, but should not be limited to:

  • Does the OP own their own business/self-employed? This is an important factor because it is often easier and in some cases more likely for an individual that owns their own business or is self-employed to hide assets or maintain offshore accounts.

  • Please describe the lifestyle you (the client) and OP live or lived. The OP's lifestyle, or change in lifestyle, can also be an indicator of the possibility of hidden assets/accounts. For example, the OP may make expensive purchases (i.e., cars, homes, etc.) in an attempt to squander funds from hidden assets/accounts throughout the divorce process.

  • What financial records/documents do you have in your possession and what accounts do/did you share with OP? Answering this question at the onset will be helpful once the discovery process begins so the attorney/paralegal will know what documents to request and where to look.

  • Do you remain in contact the OP, and if not, do you know their home and work address? While this question may be basic, it is important to maintain a good idea of the OP's whereabouts in case they attempt to leave town (not uncommon in cases involving hidden assets/accounts).

Collecting basic information about the OP before beginning the discovery process is helpful and will aid you throughout the discovery process. Start with an initial checklist of background of the OP, such as place of employment, date of birth, social security number, and the individual's last known address. Further, consider collecting information regarding the identities of the OP's close friends and relatives. This can often come into play because they will transfer or hide assets in those individuals' names in an attempt to avoid detection.

    1. Custody Questions - Determining Who the Primary Caretaker Is

In child custody cases, the deposition outline should be broken down into subject areas such as past history of involvement in the child's life, finances, housing, work schedule, and other relevant categories. The questions should be asked in a polite, direct, and non-accusatory fashion and kept relevant to the custody situation. Additionally, questions should be kept specific and quantifiable as questions that require fact-based answers are more difficult for deponents to evade. Sample questions include, but should not be limited to:

  • Who is the child(ren)'s teacher/dentist/doctor/etc.?

  • How many times have you accompanied the child(ren) to their doctor/dentist appointment this year?

  • How many times have you attended parent-teacher conferences?

  • What extracurricular activities are your child(ren) involved in?

  • How often do you bathe/prepare meals for/groom your child(ren)?

While these questions may seem basic, they are important in determining who is the primary caretaker. Should the deponent not know basic facts about the child(ren)'s life, the lack of knowledge can be brought up during trial .

  1. Mastering the Art of Questioning Techniques

It is usually better to use a general outline for a deposition than a detailed list of every expected question. With an overly detailed outline, you are more likely to stick to it in the deposition than to listen to the answers and be able to follow up with some flexibility. If you are using documents, consider marking up the documents or drafting your questions on the documents as this can allow you to do follow-up questioning for each document as you go through the deposition. Be sure to review your outline before the end of a deposition to confirm that you did not miss points you wanted to address. Deposition questions should usually be framed as open-ended questions that begin with what, where, when, why, and how to obtain relevant information. Leading questions should generally be saved for trial on most matters. A deposition is usually the time to be "good cop", where trial is time for "bad cop."

As you prepare for questioning, determine what you hope to accomplish through the deposition. Beyond discovering what happened, be clear on what two or three points you want to establish through a witness's testimony. If the case goes to trial, usually only a very small part of the deposition is ever used. The true value of depositions may be for impeachment purposes.

When taking depositions, listen carefully to answers to be sure to ask the important follow-up questions. Do not get so focused on your outline that you fail to listen to, understand, and think about the answers to your questions. Additionally, do not interrupt or cut off an answer and do not be confrontational or argumentative; a business-like conversational approach will usually be more productive. Additionally, ask open-ended, clear, and straightforward questions. Exhaust you deponent's recollection regarding each topic you have a basis to believe that they have knowledge of. It is also important to know the documents and how you intend to use them. You may want to ask question about documents without disclosing that the questions relate to particular documents. Do not be reluctant to ask questions that may produce answers you do not want to hear. Otherwise, you will not here them until trial. Some additional tips when taking depositions are: use a long pause to elicit a further response from the deponent, control the pace of the deposition, and generally use verbatim script for key questions. A script ensures you do not forget to ask something important, but chronological questions may not be the best approach. Rather, focus on what really matters.

If fault is likely to be an issue, it is preferable to depose the opposing party first to minimize damaging testimony. This is because an opposing party is more likely to become hostile or less cooperative s litigation progresses, particularly after attending the deposition of counsel's client and hearing the client's version of events. When deposing the other party, it is a good ideal to play "good cop" and start with asking about the opposing party's side of the story. Being calm and polite will put the opposing party at ease, allowing he or she to open up and cooperate willingly.

The deposition of an expert witness is the culmination of the opposing party's defense or prosecution theory of the case. Before taking an expert's deposition, the parties should generally have completed fact discovery: interrogatories answered, documents obtained, and lay witnesses deposed. The expert's opinions are being offered by the opposing party as part of a plan to defeat your case. Deposing your opponent's expert witness is your opportunity to understand, limit, and hopefully stop defeat. The important of being prepared to depose the expert witness cannot be overemphasized. If deposing an expert witness, your plan for the deposition may include hypothetical questions, containing facts and assumptions which you can prove at trial, that will undermine the expert's opinions and ultimately win your case. The point is that you must have an outline and a strategy for your deposition of an expert. If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave the deposition knowing how you will deal with the expert at the time of trial.

When deposing an expert, it is important to elicit all the expert's opinions and bases of opinions. Even if you do nothing else while deposing an expert witness, at least make sure you confirm that the expert has told you all his or her opinions about the case. If he or she then tries to testify to additional opinions at trial and you had expressly confirmed at the deposition that there were no other such opinions, the additional opinions later offered might be subject to exclusion. If you did not ask that catch-all question at the deposition and cover all of the opinions the expert has, and the expert then renders at trial opinions you were not aware of, your case could be endangered. Beyond that, with respect to each opinion the expert has, make sure you ask the expert to exhaustively identify all the bases for each. You must elicit that information so, among other things, your own expert will be able to identify points of criticism or disagreement. You also want to avoid being surprised. Ensure that you have covered all bases for each opinion by asking catchall questions such as "Are there any other bases for this opinion that you have not already mentioned?" Make sure you keep asking that question until the answer is a definitive 'no."

Additionally, when deposing an expert, it is helpful to put the expert into a box. Sometimes experts are advocates for the parties that have retained them. These experts often are minimally credible, because they are unwilling to concede any point, even when the point is beyond dispute. Test areas as to which the expert might support your case. Often, an expert -such as a treating doctor - who is not an outright advocate for the other side will concede points when appropriate. You should use these concessions to the extent possible to support your case. When opposing expert is willing to render opinions favorable to your case, do not be afraid to make use of that testimony. Obviously, helpful opinions given by an opposing expert will be more valuable than if those opinions are coming from your own expert. You should also ask an expert who and what is considered authoritative in the field. Find out which treatises or authors the expert considers to be authoritative in the field. You may be able to find information in the treatise or from one of the authors that contradicts the expert's opinions. You may learn the expert considers your expert's work to be authoritative, or that the expert considers a treatise in which your expert is published to be authoritative. This allows you to bolster your expert's credibility through the opposing expert.

When deposing an expert, do not let an expert push you around. Retained experts are notoriously difficult to control, particularly for a new lawyer. You must establish control early by making the expert answer your questions. If the expert continues to offer an evasive non-answer, you must redirect the expert to your question and make him or her answer it. You may need to object and then move to strike portions of the expert's answer. If the expert refuses to answer a question, establish that on the record to set up a potential motion to strike the expert as a witness. This sometimes requires that you certify the question on the record. In extreme cases, you might be able to contact the judge during the deposition or have a special master appointed. In addition to not letting an expert push you around, you must be persistent in following through with your line of questions. Do not let the expert move from a topic if you think it has not been sufficiently addressed. You are paying a significant amount for the deposition, so get your money's worth. Ignore the expert's (possibly feigned) exasperation, and ask your questions. As you are walking the expert through the steps of their methodology, it is also important to ask them about that they were thinking as they looked at the date or results that they were seeing. For example, by allowing them to describe their impressions and reactions as they started going through their damages calculations or as they read the opposing expert's report, it allows the judge to understand how the expert formed their final conclusions.

  1. Determining When to Go Off Script and When to Stop Questioning

One strategy when in taking depositions is the conversational deposition strategy where you would prepare points rather than a script which will lead to a more conversational deposition. This strategy can be invaluable as it puts the deponent in a more relaxed state-of-mind where they will be more likely to cooperate, remember answers correctly, and be a helpful witness. This strategy is also more likely to lead to the discovery of information you did not anticipate discovering before. While this approach is very effective when deposing low and mid-level employees, managers and fact-witnesses, it is important to note that it is not as effective when deposing an experienced or expert witness.

Before ending a deposition, make sure you have asked all the questions you want to ask. Do not let opposing counsel pressure you into ending the deposition before you are ready to end it. Take your time. It is probably the only opportunity you will have to question the witness. When you think you are finished ask to take a break and take the break to look over your outline to make sure you have not skipped anything you want to ask. Additionally, spend you break looking over your notes to make sure you have properly followed up on all the witness's answers. When you are ready to complete the deposition, say, "No further questions."

  1. Customizing Each Expert Witness Deposition - Valuation Experts, Custody Evaluators and More

Custody Evaluators

A child custody evaluation is a process in which a mental health expert, usually a psychologist, evaluates a family and makes a recommendation to the court for custody and visitation or a parenting plan that is in the child's best interests. The court may assign an evaluator to you or may allow you to choose from a list of evaluators. Regardless of who chooses the evaluator and who pays for the evaluation, the evaluator should be neutral and should not have a patient-therapist relationship with anyone in the family either before or after the evaluation. The evaluator is working to make a determination of the best interests of the child. The typical custody evaluation consists of interviews with each parent and the children; observation of parental interaction with each child in the office and potentially at home; psychological testing as necessary; review of court documents; interviews with people like teachers; and pediatricians and day care providers as necessary.

Once the evaluation process is complete, the evaluator will issue a report with recommendations regarding custody and visitation. Most evaluators will specifically address concerns raised by each parent in making recommendations.

A custody evaluator may suggest or, sometimes at the request of a client or opposing party, one may choose to undergo psychological testing. More in this realm is not necessarily better. At a minimum, make certain the style of test employed is both relevant and to the extent possible, reliable. Keep in mind that virtually none of these were designed with any form of legal standard in mind. However, with that said, in the right setting they can prove useful.

The purpose of the child custody evaluation is to assist in determining the psychological best interests of the child. From the court's perspective, the most valuable contributions of psychologists are those that reflect a clinically astute and scientifically sound approach to legally relevant issues. When making recommendations, psychologists should seek to avoid relying upon personal biases or unsupported beliefs. Recommendations should be based upon articulated assumptions, interpretations, and inferences that are consistent with established professional and scientific standards. Although there is no one right way to conduct a custody evaluation, there are wrong ways. The key is to understand enough about the various standards and procedures that govern custody evaluations in order to identify the right from the wrong and mount an effective cross examination if necessary.

One way to challenge the results of a custody evaluation is to question the qualifications of the evaluator. The Specialty Guidelines for Forensic Psychologists require that psychologists who conduct forensic evaluations (of which custody evaluations are included) have specialized knowledge, skill, experience, and education in the areas necessary to perform the evaluation. Even more specifically, the Guidelines for Child Custody Evaluations in Divorce Proceedings and the Model Standards of Practice for Child Custody Evaluations indicate that custody evaluators should have specialized knowledge and training in performing psychological assessments of children, adults, and families as well as education, experience, and/or supervision in child and family development, child and family psychopathology, and the impact of divorce on children. A good place to start is to obtain a copy of the psychologist's curriculum vitae. From the vitae, the psychologist's training and experience working with children and families and evaluating children and families for custody purposes can be determined. If the psychologist cannot cite any references, this can be used to criticize the psychologist's overall knowledge in the specific areas about which he or she is forming opinions and making recommendations. The number of custody evaluations that the psychologist has conducted also is a question that should be asked in order to determine the psychologist's qualifications and experience.

At a minimum, a custody evaluation should involve both parents, the minor child(ren), observations of the parent-child relationships, and contact with relevant collateral sources. If an evaluator does not evaluate both parents and the child(ren), he or she cannot and should not make recommendations about custody or time sharing. In order to cross examine an adverse psychological witness properly, it is essential to review all of the notes and information collected during the evaluation. The purpose of reviewing the notes, of course, is to find any errors in the information or lack of specificity in the notes.

Although psychological testing is the part of the evaluation usually most are foreign and confusing to attorneys, knowing some basic information about psychological testing can be helpful in both preparation and cross examination. Validity, reliability, and a strong research base are important factors in the selection of psychological tests in forensic cases. Therefore, if the tests selected by the psychologist lack validity, reliability, or an adequate research base, this can lead to a very successful attack on the test results and possibly the ultimate opinions offered by the psychologist. Whenever financially feasible, a psychological consultant should be hired. A psychological consultant can obtain the actual test data, re-score it to make sure it was scored and interpreted correctly (many times it has not been), provide consultation, elaborate on the strengths and weaknesses of the overall evaluation, and assist in preparing for deposition or trial questioning of the custody evaluator.

The best way to avoid a bad or unfavorable custody evaluation report is to plan the custody evaluation carefully if given the opportunity by including referral questions in the court order and by carefully selecting the custody evaluator. It is also important to inform yourself about what and what not to do when going through a custody evaluation. However, sometimes even with the best planning, a bad custody evaluation report occurs.

Always make notes of discrepancies and/or omissions, as attorneys can point these out to the custody evaluator and he or she may be willing to amend the custody evaluation report. The discrepancies must be significant and verifiable for the custody evaluator to make revisions to the custody evaluation report. Also, be sure to check the Custody Evaluation Guidelines. The American Psychological Association has established guidelines for custody evaluations. Experts in custody evaluations may be able to review custody evaluation for methodological flaws including signs of bias, failure to follow established guidelines and gaps in data. In addition to receiving a copy of the custody evaluation, be sure to receive a copy of the custody evaluator's curriculum vitae. The latter is very important because all too often professionals conduct custody evaluations without the proper training.

An expert's report or testimony should not be all of your evidence, but just one key piece. It can often be used to show "why." In other words, it can show why: (a) someone is not an ideal parent and will likely remain that way; or (b) why an allegation may have been true, but is no longer. It adds credibility or bolsters what may be otherwise a bare allegation or a he-says she-says situation.

Remember, custody determinations are often the most difficult decisions for judges, and they will often rely heavily on expert's opinions so know your expert's expertise. Do they focus their practice in children or adults? Are they knowledgeable and capable of recognizing abuse settings? Do they have any particular tendencies in their recommendations? Be prepared to attack weaknesses in your opponent's evaluation and to highlight the strengths of yours. This can be as simple as knowing whether the expert was appointed by the court or hired by the opposing party. Is the expert rattling off field specific terminology that sounds dire but really has little application to the relevant legal standard? Make sure your expert knows the law of the jurisdiction and highlight when the opposition does not.

Ultimately, a good custody evaluation report should focus more on the data that formed the basis for the opinions rather than psychological theory and excessive jargon. The report should clearly present the evaluator's opinions and recommendations as well as the basis for these opinions and recommendations. In doing so, it should include a description of all of the data relied upon in the evaluation, including parent and child interview information, test results, parent-child observations, collateral source information, and whatever records were reviewed and relied upon. If any of these essential parts are lacking within a custody evaluation, it can create a question of the accuracy and thoroughness of the evaluation and it should be questioned.

Forensic Accountants

It is also important to point out other resources which may be useful in a case with hidden assets, specifically forensic accountants and private investigators. While they may be costly, utilizing such resources may be extremely helpful, depending on the complexity of the case. Forensic accountants are especially helpful and often necessary when analyzing tax and financial documents for potential hidden assets.

Federal Rule of Evidence 702 allows for expert testimony: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Check state statutes for your local rules regarding the qualifications of an expert and the admissibility of their testimony. A Business Valuation Specialist will frequently be allowed to testify in terms of valuing a closely held business and consequently you should consider the use of Business Valuation Specialist in any case involving closely held business. This is particularly true if the business would appear to have some value and you are unfamiliar with business accounting. Remember, that in order to divide marital property and debt in a just or equitable manner, it is critical that all assets be valued, including businesses owned in whole or part by the parties.

It is also important to know at what point in time the evaluation is to take place. For instance, in Goodwin v. Goodwin, the husband's expert valued a business at the time the wife left the company's employ arriving at a figure of $385,000. The wife's evaluator valued the business at a point as close to trial as possible to a figure of $1.65 million. The trial court adopted the latter evaluation, and the appellate court concluded it was within the discretion of the trial court to do so.

Additionally, consider a cost benefit analysis regarding size of business or if spouse suspects hidden business incomes. All too frequently a spouse whose business has performed and provided beautifully for years will suddenly be cash strapped. (Recently Acquired Income Deficiency). To help identify such spouses consider the use of several types of financial experts. Accountants can help examine cash flow, value business perks, and discover hidden or unreported income. Business and Practice Appraisers can be used to determine the fair market value of a business or practice. Financial Planners can help identify the true value of investments going forward and Real Estate Appraisers as well as Vocational Experts may prove useful too. The key to the use of these experts is that you know both the expert and their report.

It is also vital to tell the expert at the onset what you might be looking for and the purpose in hiring them. Knowing what you're looking for will help you determine whether the expert is capable of identifying that information for you. In other words, you need to know the strengths and weaknesses of the expert. For this, you will want to see their curriculum vitae, discuss their potential biases, and ask about their general experience with testifying in court.

You will also need to be able to identify the strengths and weaknesses of the report. If you do not already understand, ask the expert for an explanation of the methodology used and alternatives which could have been employed. Prepare the expert for direct and cross examination of their findings and be prepared to impeach the opposing parties' expert in terms of the substance, their own biases, and on their experience. For instance, did they comply with methodologies in Rev. Rul. 59-60? Did they substitute book value for fair market value?

Sample Questions to Ask Valuation Experts

First, it is important to ask about the methodology, assumptions, procedures and how the opinion of value was determined. The following are some examples of potential other questions to ask.

  • Have you personally sold a business or assisted a client in buying or selling a business in the same industry? How many have you sold?

Asking the expert if he or she has sold businesses in the past is directly aimed at the expert's experience and knowledge on real-world issues. An expert who has sold businesses has firsthand knowledge of the selling process and is likely to have a better understanding of the marketplace. An attorney should be on the lookout for a business valuation expert who is purely theoretical and has little knowledge about buyers and sellers in the real world.

  • Do you know for certain if the amount you concluded to be the value of the business can be financed?

A good business valuation expert will consider more than one method as a check for reasonableness. And a great business valuation expert will take one step further by determining if the purchase price can be financed. If the opposing side's expert determines a value for a business that cannot be paid off in five or seven years while also returning a reasonable amount to the owner, it is probably not a realistic price to pay for that business.

  • Does your valuation comply with generally accepted accounting principles?

Some valuation experts are stumped by this question. Generally accepted accounting principles do not govern the valuation field. However, there are well-accepted valuation principles such as Uniform Standards of Professional Appraisal Practice and Statement on Standards for Valuation Services.

  • Did you conduct a site visit? If so, when?

Generally, site visits are important to a business valuation but this question is often overlooked by attorneys. If the expert did not conduct a site valuation, how do they know what they were valuing didn't just vanish into thin air? A site visit must be performed to physically observe the valuation subject and corroborate those observations with the information obtained from the management interview and financial records. Trust but verify.

  • From your previous valuations, has any value you determined ever been substantially changed in a court decision? Has the value stood up in court?

This question further discredits the expert by showing the judge or jury that the expert's been wrong in the past.

  • Have you ever been excluded as an expert? Has your testimony ever been excluded?

This is a direct hit at the expert's credibility if he or she answers yes to this question.

  • Who hired you and how many times have you worked for them?

It's all about perception. If the expert admits he or she has been hired by a client over and over again, the perception is that the expert will conclude a value to the client's satisfaction whether or not it represents fair market value.

  • You advertise yourself as an expert for hire, is that correct?

The intent of this question is to show the judge or jury that the expert is a "hired gun" and is likely an advocate on behalf of his or her client. The value may be skewed to favor their side and may not represent fair market value.

  • How much of your professional time is devoted to expert testimony?

Score one for your side if you cross-examine a business valuation expert who spends more time on the "expert" part than the "business valuation" part. This kind of "expert" likely will be seen as an expert opinion for hire.

  1. Working with Difficult Deponents - Tricks for Getting What You Want

If a witness appears evasive, it is best to specifically note it on the record by explaining the problem it creates and directly asking the witness to answer the question. Do not argue with the witness; the minute you are arguing with the witness you are not going to win. Instead, when a witness tries to interject his own answer to one of your questions, or otherwise refuses to answer, smile, and then offer to rephrase the question. Be persistent, but polite.

Either by nature or by circumstance, some witnesses will not remember important details, or will claim not to remember important details. The forgetful witness may be one of the most frequently encountered types of difficult witnesses. It is important that you learn how to deal with the all-too-frequent testimony of "I don't remember", or "I can't recall", or "That was a long time ago, and I can't say for sure." If the witness cannot remember key details, you will sometimes have deposition testimony of other extrinsic evidence to rely on, which will be helpful in refreshing the witness's memory. To establish an absence of knowledge, it is important to put on the record that the deponent's memory cannot be refreshed and to not accept any equivocal answers but confirm the deponent has absolutely no recollection.

It is key to know the rules, obligations, and available objections before going into depositions to ensure your deposition can be properly defended. In fact, it would be helpful to keep a copy of the rules on-hand. For instance, depositions are limited to one seven-hour day, unless stipulated otherwise by state and local rules. Additionally, objections must be stated concisely and in a non-argumentative, non-suggestive manner. Many objections if they are not made at depositions or are not preserved will become waived. Objections waived if not made at the deposition include the following:

  • ambiguous

  • leading

  • compound

  • assumes facts not in evidence

  • argumentative

  • contains ambiguous references

  • calls for legal conclusions

  • calls for speculation

  • calls for a narrative response

  • beyond the scope of agreed upon discovery or limits set by court

Objections waived if not preserved include the following:

bad faith

questions so repetitive as to be harassment

party misconduct

demeanor of attorneys or witnesses

rushing the witness by not allowing the witness to answer

evidentiary objections that can be cured

lack of evidentiary foundation

seeks opinions beyond the purview of the witness being deposed

The following objections are not waived and are not necessary to preserve a record:

  • hearsay

  • offers of compromise

  • relevance

  • subsequent remedial measures

Along with objections, if it is necessary to preserve a privilege, enforce a limitation directed by the court, or to present a motion under Rule 30(d)(3), a deponent may be instructed not to answer. Additionally, if at any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the deponent, the court may order the officer conducting the examination to cease from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c).

In cases where an expert is being questioned, it is important to instruct the expert not to frame answers in a way that appears partial to one side or the other, if appropriate. This is significant, since bias is a valid ground for disqualifying an expert witness. Expert witnesses should also be instructed, if appropriate, to avoid using absolutes. This means making statements like "in all cases" or "every time." This will ensure the witness does not close the door to a certain line of questioning and open themselves up to impeachment later. It is should be expected that opposing counsel will try to "pigeonhole" the witness' testimony this way, so be sure to go over this with your expert. Sometimes, based on a desire to please the attorney and the court, experts may get ushered into answering a line of questioning outside the scope of their expertise. This is extremely important, since your witness can only make statements that fall within the scope of our witness' expertise and any statements made otherwise will be stricken from the record. Remind your witness that "I don't know" is a perfectly acceptable answer, as long as that is the truth. However, be sure to discuss with your expert instances where "I don't know" is NOT an acceptable answer, such as when the question directly relates to basis or methodology of your expert's opinion.

To avoid an expert witness responding poorly to perceived hostility, remind your expert not to get defense if they feel attacked by a line of questioning. If it's objectionable, you as the attorney will take care of it. Remind your witness that the objective of a cross-examination is not to pick a fight with the attorney, but an opportunity for the witness to "stick to their guns" and present an even stronger case to the jury for your client. Maintaining a resolve and not being overcome by emotions or getting flustered under pressure is the most important part of an expert's mindset when on the stand. The most important tip to remind your witness is to stop, breath and think about the question being asked before providing an answer. This way, your witness does not call out uncertain answers based on a pressure to perform. The priority is and always should be not to compromise the credibility or image of your witness to the judge.

If the attorney insists on cutting off your witness, instruct your witness to answer the next question be stating the previous question was not completely or accurately answered. Remind your witness to leave the door open to clarification. This means that when opposing counsel asks your witness "is that everything," it is crucial that your witness provides a flexible answer, such as "that is all I can recall at the moment." Failure to do so may be grounds for impeaching your witness, or at the very least looks somewhat conflicting.

The easiest way to control a witness is through the use of exhibits. However, documents should only be used when necessary such as to keep the witness honest. They should not be used as a crutch. Do not feel compelled to show all documents to the witness, but consider using documents with individuals who may not have authored or received the document. Note, it is important to known which documents MUST be introduced and authenticated. When using exhibits, multiple clean copies should be brought to the deposition in separate folders for quick identification. To further improve quick identification by the deponent, be sure to read the exhibit number into the record before providing it to the deponent or read a short description into the record. Additionally, it is effective to have the witness repeat what he or she wrote and then merely ask if the witness believes it to be a true statement at the time he or she wrote it; either the witness will have to confess to being a liar in writing an intentionally false document or the witness has to acknowledge that he believed it to be true at the time written, regardless of the fact that a different truth dawned on the author later in the litigation or in the life of the dispute which will make their remaining testimony not credible because common sense tells you the document represented what was true at the time it was written.

When you plot out cross examination, go carefully through the documents and weave them together as you tell your story. Do not forget about emails and e-discovery. People spontaneously write e-mails without hesitation and, more importantly, without reflection or thinking. Also, consider asking about social media. Use the deposition to ask for permission to access those site and accounts. However, you should always consider rules of professional conduct noting the ethical risks of "friending" to get information. With this in mind, it is important to conduct your own social media diligence on your witness before they go under oath.

When looking at social media content, remember to look at sites reflecting job duties, such as LinkedIn, and sites reflecting the physical and emotional state of your witness such as blogs, Facebook, Twitter, Instagram, and YouTube. Specifically, you should look for a timeline of actions or time spent away from the children or spouse, boasting of compensation, promotion, or unknown assets, photographs of inappropriate behavior or potential witnesses, and expressions of extreme ideologies or beliefs. Some other things to note are that secretly recorded oral communications are almost always excluded at trial; electronic communications are almost never automatically excluded; cell tower data, GPS, and Wi-Fi create Geo-location data that will show where a person was and when; and photos from GPS-enabled phones embed the longitude and latitude of photos when they were taken.

  1. Advantageously Using Depositions During Settlement Negotiations or Trial

Following deposition, you should take inventory by comparing testimony and final explanations, filling in gaps, and reviewing the good, bad, and ugly. Additionally, you should review with lay and expert witnesses, reduce pleadings and discovery to logical anchors, consider motions for summary judgment, and consider motions to strike. Depositions are the only way you, as the attorney, may determine what the position of the opposing party is on certain issues. This makes it easier to solve the issues through settlement or to prepare for trial. Further, due to deposition preparation, facts are fresh in mind and there exists more awareness of the strengths and weaknesses of both positions. This should be used for client preparation. Theming can, also, be can be a good technique in the pre-trial phase of a case as well as for making a judge remember a case as it allows you to make opening statements with knowledge of testimony and allows you to consistently hit the same theme with trial questions and evidence.

Rule 32(a) permits the use of "any part or all of a deposition" at trial "so far as admissible under the rules of evidence applied as though the witness were then present and testifying." Some purposes include:

  • to present admissions

  • for impeachment

  • as a substitute for "unavailable" witnesses

  • to refresh recollection

  • as a substitute for un-refreshed memory

  • as past recollection recorded

  • for witness control

  • to make offers of prof and support or resist evidentiary motions and objections

Be sure to check your state and local rules for variances. If you choose to introduce deposition testimony into evidence at trial, whether it is for strategic reasons or because of the unavailability of witness, it is essential to dramatize the process in a way that makes it interesting and persuasive. Sometimes, the deposition questions may be read by the attorney and another attorney or paralegal reads the deponent's answers. But, often times, a judge may allow you to admit a deposition into evidence as an exhibit based on the jurisdiction. You should be careful and strategic in choosing the surrogate deponent in order to maximize the value of the deposition testimony and you should prepare that person in advance to enhance the delivery. Before reading the deposition testimony into evidence, counsel must educate the judge as to the nature of the deposition testimony and the circumstances under which the deposition was taken. If admitting the deposition into evidence, be sure to mark it. To avoid interruptions from objection, counsel should seek and in limine ruling on all objections to the deposition testimony that is being offered.

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FRCP §32(a)